- Did you know that every lawyer has a huge swinging hammer?
This is not a metaphor.
John Oliver covered the dispute
between Jim the Texas Hammer Adler.
- I'm Jim Adler, the Texas Hammer.
- And Mike, the Alabama Hammer Slocumb.
- I'm Mike Slocumb, the Alabama Hammer.
- To recap, Jim Adler says he spent more than $100 million
on ads branding himself as the Texas Hammer,
a slogan he's been using since the 1990s.
- The Texas Hammer.
- He sued Mike Slocumb, the Alabama Hammer,
for copying his commercials line by line.
- I'm Mike Slocumb, Alabama Hammer.
- Slocumb also calls himself the DC Hammer
for his DC area commercials.
Both advertisements feature the lawyers
battling an 18-wheeler, holding sledgehammers,
and speaking right into the camera
promising to beat insurance companies at their own game.
(tires screech)
- That's what I thought.
- Slocumb says he stopped running that ad
and also claims that he only calls himself the Alabama
and DC Hammers and doesn't mess with Texas.
- I'm Mike Slocumb, the Alabama Hammer.
- Slocumb did appear to copy that 18-wheeler commercial
but also has other weapons or tricks
up his lawyer's sleeve or suit sleeves, I guess.
Here's Slocumb threatening to shoot insurance companies.
- Yeah, well, here's a target we can all agree on.
(gun fires)
- So what is this dispute really about?
Well, Adler owns the federal trademark registrations
for the trademarks the Texas Hammer,
its Spanish translation, El Martillo Tejano,
and The Hammer.
- Soy Jim Adler, el Martillo Tejano.
- So what does this mean?
Well, a trademark is a word, symbol, or phrase
used to identify a particular manufacturer
or seller's products and distinguish them
from the products of another or services of another.
Nike and adidas have different logos.
That's how you can distinguish which brands of shoes
you were buying and where they came from.
Trademarks are generally considered
a form of intellectual property like copyrights and patents.
However, these are all different concepts.
A patent is a legal right to an invention,
which is a product or process that provides
a new way of doing something or solving a problem.
It usually has some sort of utility value.
A patent entitles the patent holder,
who is often the inventor,
to the exclusive right to replicate, use,
or license or sell that thing.
Copyright, on the other hand,
protects original works of creative authorship
fixed in a tangible medium.
Copyright attaches to things like songs,
books, articles, movies, and art.
That means that authors have the exclusive rights
to do whatever they want to the things that they make,
the the expression that they make,
including the right to sell or otherwise profit from them.
But copyrights and trademarks are very different.
Trademarks don't reward the trademark holder
by giving them the right to sell something.
The person or business which holds a trademark
has the right to stop others from using a similar
or identical trademark without their permission.
A purpose of a trademark is to prevent consumer confusion
about the source of the goods and services.
Trademarks prohibit any marks that have a likelihood
of confusion with an existing one.
That means that a business cannot use a symbol
or brand name if it looks or sounds similar
or has a similar meaning
to the one that's already on the books
if it's already being used in commerce,
especially if the products or services are related.
So that's a crash course on the difference
between copyrights, trademarks and patents,
and believe me, it's way, way more complicated than that.
But this is the source of dispute between Adler and Slocumb.
Adler says that Slocumb calls himself the Texas Hammer
in the Texas area, which creates consumer confusion
since Adler has the trademark to the phrase Texas Hammer.
And to prove that someone infringed on your trademark,
you have to show that it's likely
to cause consumer confusion
about the source of the products or services.
Adler says Google searches for Texas Hammer
pull up a phone number that automatically connects
the searcher to Slocumb's call center.
This is known as click to call technology.
Click to call ads are a new addition
to the search engine advertising,
and these ads don't necessarily link to a website,
but instead trigger the user's device
to call a predetermined phone number.
Adler says that by purchasing these keywords,
Slocumb is trading on the good will that Adler accumulated
in the Texas market with his hundreds of millions of dollars
in advertising related to the Texas Hammer mark.
And while Slocumb's nearly identical commercial
seems like a pretty clear cut case of copying,
the issue there would be potentially copyright infringement,
because copyright applies to the expression
of the commercial, the scenes that are used,
the lines of dialogue in that particular commercial.
Whereas trademark would be the issue
when it comes to the actual marks themselves,
the use of Hammer in advertising,
whether it's the Texas Hammer, the Alabama Hammer,
or any other kinds of hammers that come up
in that particular commercial.
And it gets even more complicated
when you're talking about click to call advertising
and advertising on search engines and online,
where a competitor buys the right to advertise
using a competitor's mark in a keyword.
So for example, if you say anytime someone searches
for "the Texas Hammer," I want you to show my ads
for the Alabama Hammer.
It's a complicated issue that I won't go too far
into in this video, but there is an additional wrinkle
to this case that makes it much more fun,
because when Adler applied for his original
Hammer trademarks, he told the US PTO,
the US patent and trademark office,
that he wouldn't be confused with lawyers
in other jurisdictions such as the Kentucky Hammer.
That's because he needed to establish the geographic scope
of his trademark protection.
Just because you have a trademark in one area
doesn't mean you can exclude everyone else
from using that mark in the entire country.
Now, John Oliver does a great job
of covering the controversy between Slocumb and Adler,
which is hilarious in its own right,
but what Oliver misses out on is that
this is just the tip of the Hammer iceberg.
There are far far more Hammer lawyers in the United States.
It's kind of its own thing.
So let's talk about the Kentucky Hammer.
- I'm attorney Darryl Issacs, the Hammer.
- That is Darryl Issacs, a Kentucky, Ohio,
and Indiana lawyer who bills himself as the Hammer.
Like Slocumb and Adler,
Issacs is also an auto accident personal injury lawyer
who likes to fight with 18-wheelers.
So if you search for "the Hammer lawyer,"
Google may display an ad for the Hammer Law Firm,
which is actually Isaacs, neither Adler or Slocumb.
So if Adler spent a hundred million dollars
on advertisements, you can imagine how much money
the Kentucky Hammer has spent
on his own Superbowl commercials.
One of those ads shows Isaacs in a spaceship
reenacting "Star Wars," which raises all kinds
of other intellectual property issues.
But it's pretty funny because when Princess Leia's spaceship
gets T-boned, she knows just who to call.
- Help me, Darryl Issacs, you're my only hope.
- On my way.
- You know, for lawyers, they are skirting awfully close
to very established intellectual property.
Issacs also rode a dragon
for his next Superbowl advertisement,
which was based on "Game of Thrones."
In fairness though, that is better CGI
than you can find on the CW.
And that advertisement is better
than the last episode of "Game of Thrones."
Now, in addition to calling himself the Hammer
in the Louisville and Indianapolis markets,
Issacs markets himself as the heavy hitter.
But things get even more complicated
because would you imagine that there might be more
than three hammering lawyers in the USA?
Well, of course there are because Georgia has Jamie Casino,
a man so committed to his Hammer persona,
he ran several commercials during the Superbowl
in his local market of Savannah.
The 2014 version is a two minute long commercial
and features Jamie wearing black leather,
getting personal with the hammer
while a Metallica cover band plays in the background.
I mean, just look at that fire.
And here's Jamie with a cross around his neck
absolutely messing up some TVs in the 2018 Superbowl ad.
Is he taking on insurance companies
or preparing to stake some vampires?
Who can say?
But we're not done yet.
Insurance companies are also the target
of the Illinois Hammer, Bradley Dworkin.
- My name is Bradley Dworkin, the Illinois Hammer.
- Now my favorite part of the Illinois Hammer ad
is this depiction of the insurance company lawyer
as this fat slob with a messy desk and slovenly clothing.
If you've ever had to interact
with insurance company lawyers,
you'll get a kick out of that.
It's not exactly inaccurate.
Can you tell that I've had to sue
a number of insurance companies before?
Yeah, come at me, insurance company lawyers.
Now the Illinois Hammer's most recent commercial is animated
and contains a truly memorable jingle.
♪ Dial 777, all sevens today ♪
♪ The Illinois Hammer is on the way ♪
- Honestly, I don't hate it,
but could there be yet more Hammers?
Well, of course there are.
We're not nearly done yet,
because lawyers are not that creative,
and the hammer just sounds cool.
So Lowell the Hammer Stanley is a Virginia
personal injury lawyer whose mantra is
I am the hammer, they are the nails.
Now there is nothing subtle
about this particular Hammer's messaging.
His basic message is size matters.
And it says so right on the screen.
- Lowell the Hammer Stanley, 459-CASH.
- Frankly, the New Mexico Hammer's commercial is tame
by comparison, New Mexico hammer attorney Brett Parnell,
I guess he just didn't feel like investing in CGI zombies,
but you get the point across.
You need a lawyer with a big hammer.
And honestly, there are hundreds of other hammers out there,
because there are a lot of lawyers
who have Hammer as their last name.
So what about lawyers with the surname Hammer,
like St. Louis based attorney Mark Hammer?
Well, Hammer is his actual surname,
so he can't be enjoined from using
all the hammer puns he wants,
but Mark Hammer's website doesn't use any of them.
This could be because Mark Hammer
isn't down to ride the dragon,
or perhaps it's because Missouri's ethical limitations
on attorney advertisements are generally more restrictive
than the ABA's recommended rules.
Of course, men aren't the only ones with big hammers.
Amberley Hammer brings it down
on doctors who commit medical malpractice.
So how could it be that there are so many hammer lawyers
in the United States?
Well, under US trademark law, there's no inherent problem
with several different lawyers using the term The Hammer
in descriptive geographical terms.
A trademark is all about preventing consumer confusion.
So if you are providing goods and services
to the entire United States, then your trademark
would probably cover the entire United States.
But lawyers are a classic type of service provider
that are limited to certain geographical location.
Passing the bar in one state
generally doesn't allow you to practice in another state.
So often lawyers are limited geographically
by the states where they are licensed to practice.
And when a person applies for a trademark
with the US patent and trademark office,
they obtain the rights of the trademark
either by being the first person to use the mark in commerce
or being the first to register the mark.
And that's what Adler was claiming when he registered
the phrase "the Texas Hammer."
He claims that he beat others, including Slocumb,
to the punch by using the mark first
in a given geographical area.
Using the mark in commerce usually means that
you have sold a product or service to the public
with that mark attached to it.
If you were the first to do this, you'll have priority
to use that mark in the geographic area
where the sales took place,
as well as other geographic areas
where your business would be expected to expand
or where the reputation of your mark is established.
So that's why Adler's filings say that his mark
won't infringe on what Issacs is doing in Kentucky.
Adler has no intention of running commercials
branding himself as the Kentucky Hammer.
- Call the Hammer today.
- But at the same time, it's hard to talk
about attorney advertisements without talking about
the regulation of those advertisements.
Because depending on what state you're in,
lawyers aren't allowed to say whatever they want
to advertise and solicit clients.
And Jim the Hammer Shapiro is probably the most infamous
Hammer of all, because his antics were so notorious
that New York actually created new rules
to stop him from making obnoxious commercials.
- I cannot rip out the hearts of those who hurt you.
I cannot hand you their severed heads,
but I can hunt them down and settle the score.
- Shapiro's aggressive commercials ran in
the Rochester, New York and south Florida areas,
in addition to popping up in Winnipeg, Canada.
Now New York eventually suspended his license
for running misleading commercials
and sending a solicitation letter to a comatose patient.
We conclude that any reasonable attorney would know
that a solicitation letter sent to a hospitalized
comatose patient in the days immediately following
a collision between her automobile and a train
would reach the patient and her family
at a time when they were unable
to exercise reasonable judgment in retaining an attorney.
Respondent, who had actual knowledge of the condition
of the accident victim, will not be heard to argue
that the disciplinary rule required him
to be a, quote, mind and body reader in order to determine
whether his solicitation letter could be sent.
Lawyers get a reputation for ambulance chasing,
but actually most states actually have explicit rules
that say you cannot do ambulance chasing.
And so it's not surprising that Shapiro got in trouble.
In 2007, the New York state court system
adopted new disciplinary rules that were inspired
by the Shapiro commercials.
The rules prohibit nicknames such as The Hammer.
Of course, these rules would've stopped Adler, Slocumb,
Issacs, and Stanley from having a lot of fun
with their commercials.
So if you've ever wondered why lawyers are no fun
at cocktail parties, it's just because
we're ethically unable to have any fun whatsoever.
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