Incontestable
Finnegan's monthly review of essential decisions, key developments, evolving trends in trademark law, and more.
May 2011 Issue

Unregistrable


A Brand Like No Other

These days, it’s hard to watch a news or talk show without hearing mention of someone’s personal brand.  Politicians like Obama and Palin have them, celebrities from J Lo to Snooki have them, sports figures from LeBron to Kobe have them, and even CEOs of companies that sell brands from Bill Gates to Steve Jobs are their own brands.  And then, of course, there’s The Donald, who trumps them all.  Rarely do we encounter an ordinary civilian whose personality is so outsized and sparkling that she defines a brand of her own.  My late wife of nearly 27 years, Karen Dubin, was a brand unto herself, a brand like no other.  Karen died April 19th from injuries sustained when a truck struck her as she waited patiently by the roadside while out jogging on a soft spring day in D.C.  Her absence from this year’s INTA was profoundly felt, not just by her Finnegan family, but by so many friends of the firm, who looked forward to their encounter with Karen each year.  The phrase I heard most often over my last 23 INTAs was not “how are you” or “how’s business,” but “where’s your wife?”  Our world has been sadly diminished by Karen’s passing.

In pondering what to write for this month’s column, my thoughts were drawn repeatedly to Karen, and to the role she played for so many years but chafed at nearly every day.  That role was that of a litigator’s wife.  You see, Karen was not only vivacious and fiercely independent, she also took great pride and satisfaction in her own career.  When we met, she was a civilian employee of the Navy, where she was responsible for purchasing sophisticated avionics equipment for jet planes that protected our skies and shores.  Those who knew Karen, with her flair for fashion and passion for jewelry, had a hard time picturing her striking deals for aircraft electronics.  Yet she thrived as an unconventional presence in the spit-and-polish military world.  Later, after taking a break to raise our three kids, and hating every minute of being out of the limelight, she resumed her government career as an international trade specialist, where she organized and led international trade missions for the Department of Commerce.  Executives from companies at home and abroad knew and respected Karen as a vibrant force who could open new doors for U.S. businesses in markets ranging from Old Europe and Russia to Asia and the Middle East.

As a litigator’s wife, however, she came up perhaps a tad short from time to time, though ever the good sport.  Two stories are legendary.

The Tale of the Incommunicado Associate:  Just a few months after I joined Finnegan in 1986, Karen was pregnant with our first child.  I’d been enlisted to work on a post-trial brief for a patent case, and a late night loomed.  These were the days before cell phones, before BlackBerry devices, and even before we had computers on every desk top, let alone e-mail and the Internet.  Finnegan’s office systems were so primitive that, after hours, the phone only rang on certain floors.  I called Karen around 10:00 P.M. to wish her good night, and then continued slaving away, giving little thought to whether she might need to contact me in the middle of the night, and oblivious to the fact that I was working on one of those floors that rivaled the dark side of the moon in terms of telecommunication.  Basking in the satisfaction of a job well done, I finally breezed home at dawn and opened the front door expecting to enter a still dark home.  Instead, I was greeted by an angry, ranting dynamo that took the form of a beet-red Karen.  “Where were you?  How could you?  I’ve been calling you all night?” she incanted over and over like a betrayed siren.  And like an angered deity on Mt. Olympus, there was no appeasing her, even after I explained my airtight alibi and apologized for Finnegan’s archaic phone system.  I think she forgave me sometime after the birth of our third child, but she never forgave Larry Hefter, the partner I was working for at the time.  Serves Larry right for handling a patent case.

The Wire:  It was October 1999.  I was up in Boston getting ready for trial in a big patent case.  We were defending the patent on tamoxifen, the gold-standard treatment for breast cancer, and one of the biggest products of our client (now known as AstraZeneca).  On the eve of trial, our jury consultant,
Dr. Phil McGraw (yes, that Dr. Phil), arranged for us to present opening statements to a mock jury.  I was cast as the attorney for our opponent.  I stood before the jury explaining with cold precision why they should declare our client’s patent invalid and unenforceable (positions I vigorously disagreed with, but as an advocate enjoyed presenting anyway).  As I reached my crescendo, the phone rang.  A recess was declared.  The call is urgent, someone said (perhaps Dr. Phil’s colleague Tara Trask, now a successful litigation consultant in her own right).  It’s for Rob.  It’s his wife!  My heart raced in the few seconds it took me to cross the room from the podium to the receiver.  Was one of the kids sick?  Had there been an accident?  Had yet another nanny quit without notice?  Now I knew Karen was getting ready to load the kids in our minivan and drive up to Scranton, Pa., for a family event.  And I knew that hauling three children ages 5-15 in a minivan for five hours through the wilds of Northeast Pennsylvania would be no picnic.  But nothing could prepare me for what I heard when I picked up the phone.  In her trademarked desperation, Karen did not let me get past hello.  “I can’t find the cord that connects the portable TV to the cigarette lighter outlet in the van,” Karen shrieked, practically in tears, her voice dripping with blame.

With the same cool precision I had used in addressing the jurors just moments before, I uttered four words that still live in infamy: “Go to Radio Shack.”

With that, I replaced the receiver in its cradle and, with one crisp pivot, resumed the podium.  Karen went straight to Radio Shack, purchased a new cord, fed the kids a steady diet of Disney videos—this in the day before DVDs or Blu-ray—and made it safely to Scranton with her sanity intact.  And, oh yes, one other incidental detail—we won the case, and the tamoxifen patent remained in force for the rest of its natural life.

Sadly, the phone call I received twelve years later on April 14, 2011, was not from Karen, but from the hospital.  And cruelly, Karen was taken from us, long before her natural life should have ended.  Yet, as clichéd as it may sound, she truly was one of those rarest of people who lived life to the fullest, crammed in everything she possibly could, and was one of a kind.  A personal brand that will never tarnish, never expire, can never be abandoned.  A brand that will live forever.

Karen