When Pat Tillman left the NFL to fight in Afghanistan, I thought it was a terrible thing for him to do. Most people said it was heroic to turn his back on millions as a football player in order to put his life on the line serving his country in the hunt for Osama Bin Laden.
Now it may have been, but I thought it would have been better use of his particular talent to earn his millions and then give them to a truly beneficial charity.
But it was his choice and he made it, and he died in the service of our country and for that he should be honored.
Now the first controversy came about when it was discovered he most likely was killed by "friendly fire" and that the DoD lied about the circumstances of his death.
The second controversy came about when it was revealed that Tillman was an atheist and that the "friendly fire" was allegedly the intentional act of his fundamentalist Christian brothers in arms.
Well whatever the facts on those, he's now featured in a book called "Where Men Win Glory: The Odyssey of Pat Tillman". The cover of the book bears the photograph titled: "Afghan Fighter at Dawn".
The photographer is suing the publisher for copyright infringement.
According to THIS ARTICLE, the publisher did not sign the contract for use of the photo, and the agent for the photographer was fired, then the agent negotiated the contract and the publisher used it.
It seems like an open and shut case from the facts in the article: no one denies Ed Darack owns the copyright in the photo. The question is really going to come down to whether or not Random House had a license to publish, and according to the dates in the article, the did not because the offer was revoked before acceptance and acceptance was unauthorized.
This is what makes it interesting though. It's possible Random House operated under the apparent agency of the fired agent. Basically, Random House could get away with infringement if they show that they acted on the reasonable assumption that Getty Images still operated as agent for Darack. The short of it is, while it may be infringement, it may not be Random House's fault. If they did everything reasonable to get the license to use the photo, and only failed because the agency relationship between Darack and Getty had ended without Random House being informed, then they can't be held culpable.
It's one of those areas where you can do wrong, but if your heart was pure you get away with it.
Tuesday, December 1, 2009
Monday, November 23, 2009
Libel: We Don't Know How Good We Got It
Libel is a part of the area of torts known as defamation.
Libel specifically refers to written defamation, as opposed to Slander, which applies to spoken defamation.
Defamation is (in most jurisdictions) the publication of an untrue statement about another to a third party that causes harm to that other's reputation.
Libel specifically refers to written defamation, as opposed to Slander, which applies to spoken defamation.
Defamation is (in most jurisdictions) the publication of an untrue statement about another to a third party that causes harm to that other's reputation.
Friday, October 23, 2009
Domestic Violence in the Big Easy
Trademark fights can get intense but usually not with so much colorful language.
We can Slap Ya Mama, but you better not Punch Ya Daddy.
At least, that's what the Walker & Sons spice company is saying to the Falcons.
See, they sell a spice blend called "Slap Ya Mama" and Falcon has just started selling his "Punch Ya Daddy" spice mix.
Boy, Cajun spices can be rough on the family unit.
I haven't found a copy of the Complaint, but I can see a couple of issues from the stories I've read. One is called dilution. Basically, W&S is saying their product is very well known, and if anyone were allowed to just come along and sell something so similar that people would think they made it, the value of their mark would be diminished. If someone produced a crappy product with such a name, the reputation of the famous maker would be hurt, even though they didn't make the bad product.
Of course the key word there is "famous." You have to have a famous mark to get dilution protection. But what's a famous mark? Well there's where the lawyers make their money.
Another issue is the obvious similarities of names: "(strike) Ya (parent)".
Unless it's a ubiquitous practice at Cajun barbecues for people to go around eating spicy food then playing pugilist with progenitors, I think this is a pretty clear win for W&S. If a name is confusingly similar it can be said to be infringing.
Finally there's trade dress. That's basically how your product will look when a consumer is shopping. Do you have a distinctive "style"? So basically they are saying that even if the names were different, the package of one looks an awful lot like the package of the other. I say this is true too. The primary color being yellow or white - those are the 2 "metals" in medieval heraldry which can be based with any color to be distinctive at a distance. I'm sure modern marketing design types have another name for it, but basically they are interchangeable in many instances. Then a color band at the top with the maker's name on it, the use of paired chili peppers around the title; the fonts may differ, but font and color don't seem enough to me.
I'd say this is an easy win for W&S, especially given they've been in business for more than a decade and Falcons is a newcomer.
The thing to remember in all of this is it all hinges on likelihood that a consumer will be confused as to the source of the product. On one level trademark is a consumer protection scheme.
Of course I could be wrong. Maybe family fisticuffs is the state sport of Louisiana and neither name is protectable for being merely descriptive.
We can Slap Ya Mama, but you better not Punch Ya Daddy.
At least, that's what the Walker & Sons spice company is saying to the Falcons.
See, they sell a spice blend called "Slap Ya Mama" and Falcon has just started selling his "Punch Ya Daddy" spice mix.
Boy, Cajun spices can be rough on the family unit.
I haven't found a copy of the Complaint, but I can see a couple of issues from the stories I've read. One is called dilution. Basically, W&S is saying their product is very well known, and if anyone were allowed to just come along and sell something so similar that people would think they made it, the value of their mark would be diminished. If someone produced a crappy product with such a name, the reputation of the famous maker would be hurt, even though they didn't make the bad product.
Of course the key word there is "famous." You have to have a famous mark to get dilution protection. But what's a famous mark? Well there's where the lawyers make their money.
Another issue is the obvious similarities of names: "(strike) Ya (parent)".
Unless it's a ubiquitous practice at Cajun barbecues for people to go around eating spicy food then playing pugilist with progenitors, I think this is a pretty clear win for W&S. If a name is confusingly similar it can be said to be infringing.
Finally there's trade dress. That's basically how your product will look when a consumer is shopping. Do you have a distinctive "style"? So basically they are saying that even if the names were different, the package of one looks an awful lot like the package of the other. I say this is true too. The primary color being yellow or white - those are the 2 "metals" in medieval heraldry which can be based with any color to be distinctive at a distance. I'm sure modern marketing design types have another name for it, but basically they are interchangeable in many instances. Then a color band at the top with the maker's name on it, the use of paired chili peppers around the title; the fonts may differ, but font and color don't seem enough to me.
I'd say this is an easy win for W&S, especially given they've been in business for more than a decade and Falcons is a newcomer.
The thing to remember in all of this is it all hinges on likelihood that a consumer will be confused as to the source of the product. On one level trademark is a consumer protection scheme.
Of course I could be wrong. Maybe family fisticuffs is the state sport of Louisiana and neither name is protectable for being merely descriptive.
Wednesday, October 21, 2009
Arbitration and the Violent Criminal Act
Another non-IP post, but this is so important I just want to put my thoughts down.
The Senate voted for the Franken Amendment to the Appropriations Bill.
That amendment prohibits funding going to a government contractor who uses contracts to interfere with a crime victim's right to seek redress in the courts.
Jamie Leigh Jones was the brave woman who made the story of her own rape and brutalization and false imprisonment by her co-workers so very very public.
She stood beside Senator Franken as he presented his amendment and as the voice vote was taken.
Ms. Jones was raped several times by coworkers, vaginally and anally then locked in a shipping crate for days. She finally persuaded one of her guards to let her have a phone, which she used to call her dad. Dad called his Congressman and they went to work rescuing an American captive in Iraq. Somehow this didn't make as much news as rescuing soldiers captured in Iraq; probably because she was captured by her own employer.
I don't do criminal law and don't know much at all about criminal law as it relates to actions outside the US by US entities toward other US entities (or citizens). The articles say there's some loophole that makes it virtually impossible to prosecute an American who commits a crime overseas, even if the victim is another American. That needs to be stopped, but in the short term at least we can stop paying for it.
As their website says: "When you become part of the KBR team, your opportunities are endless." For instance, the opportunity to be gang-raped and stuffed in a box for days. No thanks.
The Senate voted for the Franken Amendment to the Appropriations Bill.
That amendment prohibits funding going to a government contractor who uses contracts to interfere with a crime victim's right to seek redress in the courts.
Jamie Leigh Jones was the brave woman who made the story of her own rape and brutalization and false imprisonment by her co-workers so very very public.
She stood beside Senator Franken as he presented his amendment and as the voice vote was taken.
Ms. Jones was raped several times by coworkers, vaginally and anally then locked in a shipping crate for days. She finally persuaded one of her guards to let her have a phone, which she used to call her dad. Dad called his Congressman and they went to work rescuing an American captive in Iraq. Somehow this didn't make as much news as rescuing soldiers captured in Iraq; probably because she was captured by her own employer.
I don't do criminal law and don't know much at all about criminal law as it relates to actions outside the US by US entities toward other US entities (or citizens). The articles say there's some loophole that makes it virtually impossible to prosecute an American who commits a crime overseas, even if the victim is another American. That needs to be stopped, but in the short term at least we can stop paying for it.
As their website says: "When you become part of the KBR team, your opportunities are endless." For instance, the opportunity to be gang-raped and stuffed in a box for days. No thanks.
Tuesday, October 13, 2009
Criminal Poking
Normally I try to keep this blog on the topic of copyrights and trademarks, but occasionally I will find something so fascinating or so funny that I feel compelled to post.
This time it's how social networking can land you in jail.
I'm a big fan of Facebook. (here's me: http://www.facebook.com/VincentTLyon)
I just read 2 stories where Facebook users got arrested as a result of their activities there.
The first is from last month. Seems one Jonathan G. Parker decided to break into a neighbor's house and see if there was anything worth stealing. Apparently there was, as 2 diamond rings went missing.
How are we so sure Mr. Parker was the thief? While inside the victim's house he decided to use her computer to check his Facebook page. Facebook addiction is pretty pervasive, but come on. Focus on your work a little!
So Mr. Parker for whatever reason had enough of Facebooking in the victim's house, grabbed the rings and left before anyone got home to catch him.
But he left the computer on, and left himself logged into Facebook.
Victim comes home, discovers her home has been broken into, sees drawers and cabinets left open, sees the computer on, calls the police. Having access to his Facebook profile they quickly identify and arrest him.
That just falls in the stupid criminals file.
The next is far more interesting to me.
A woman has been arrested for "poking" someone on Facebook.
The story so far hasn't told us what their previous relationship was, but apparently it got so bad that Dana Hannah had a restraining order against Shannon Jackson. The Order prohibited Ms. Jackson from contacting or communicating with Ms. Hannah at all. Ms. Hannah must have really had problems with Ms. Jackson to get this order issued.
Then what does Ms. Jackson do? She "pokes" Ms. Hannah on Facebook.
Well, that seems like a contact or communication (is that what it is? I've never understood poking on Facebook) so Ms. Hannah calls the police. Boom. Ms. Jackson finds herself in jail for anywhere up to a year just for clicking the poke button.
One weird detail to consider: You can only "poke" friends. If Ms. Hannah had such a bad experience with Ms. Jackson that she had the restraining order issued, why didn't she remove her from her friends list? We may never know.
Read the story for yourself.
This time it's how social networking can land you in jail.
I'm a big fan of Facebook. (here's me: http://www.facebook.com/VincentTLyon)
I just read 2 stories where Facebook users got arrested as a result of their activities there.
The first is from last month. Seems one Jonathan G. Parker decided to break into a neighbor's house and see if there was anything worth stealing. Apparently there was, as 2 diamond rings went missing.
How are we so sure Mr. Parker was the thief? While inside the victim's house he decided to use her computer to check his Facebook page. Facebook addiction is pretty pervasive, but come on. Focus on your work a little!
So Mr. Parker for whatever reason had enough of Facebooking in the victim's house, grabbed the rings and left before anyone got home to catch him.
But he left the computer on, and left himself logged into Facebook.
Victim comes home, discovers her home has been broken into, sees drawers and cabinets left open, sees the computer on, calls the police. Having access to his Facebook profile they quickly identify and arrest him.
That just falls in the stupid criminals file.
The next is far more interesting to me.
A woman has been arrested for "poking" someone on Facebook.
The story so far hasn't told us what their previous relationship was, but apparently it got so bad that Dana Hannah had a restraining order against Shannon Jackson. The Order prohibited Ms. Jackson from contacting or communicating with Ms. Hannah at all. Ms. Hannah must have really had problems with Ms. Jackson to get this order issued.
Then what does Ms. Jackson do? She "pokes" Ms. Hannah on Facebook.
Well, that seems like a contact or communication (is that what it is? I've never understood poking on Facebook) so Ms. Hannah calls the police. Boom. Ms. Jackson finds herself in jail for anywhere up to a year just for clicking the poke button.
One weird detail to consider: You can only "poke" friends. If Ms. Hannah had such a bad experience with Ms. Jackson that she had the restraining order issued, why didn't she remove her from her friends list? We may never know.
Read the story for yourself.
Sunday, October 11, 2009
Olympic Committee wins gold medal in obnoxious enforcement of IP
The United States Olympic Committee (USOC) has gone a little overboard in enforcing its rights to the word "Olympian".
The newspaper in Olympia Washington is "the Olympian" - and it has been so since 1889. Washington wasn't even a state then!
What difference does statehood make? None. I just thought it was interesting; but if you don't then how about 'before the modern Olympics'?
That's right, the modern Olympic Games began in 1896, 7 years into the run of the Olympian newspaper.
Now the USOC thinks it has some kind of priority over the name Olympian.
Why would they think that? I mean, the games ante-date the newspaper, and the committee itself wasn't called as such (or really formalized) until 1961. Why would this relative babe in the use of the term claim it had an exclusive right to the name?
Well, the Amateur Sports Act of 1978 is why.
That law was set up to protect the rights of athletes and provide some consistency across national borders. It also gave the USOC the exclusive rights to the trade names "Olympic" and "Olympiad."
In 1998 Congress gave us The Ted Stevens Olympic and Amateur Sports Act. That gave even more power to the USOC, and added some words to the exclusive trademark regime of the USOC - though oddly, it did not add the word "Olympian".
What's even more interesting though is that the Congressional Record (where all the debates in Congress are, well, recorded) includes background statements from at least one Senator explaining why there is an exception in the law for businesses in the part of Washington state around the Olympic Mountains. He (then Senator Slade Gordon) said it would only be fair to let those people keep using the name of their location.
Well, it looks like the USOC no longer wants to play fair.
So what are they doing about it now? In 2006, the Olympian newspaper in Olympia Washington applied for registration of their name as a trademark with the United States Patent and Trademark Office. The newspaper tried to register their mark and the USOC is trying to stop them, claiming "Olympian" is so similar to "Olympic" or "Olympiad" that consumers will get confused.
Yeah, I know I hate it when I want to buy tickets for a biennial sporting event and instead end up with a newspaper covering western Washington state.
The two are so similar.
Seriously? Confusion? And this hasn't come up in the past 100+ years the two entities have been operating?
This is actually pretty standard fare for the USOC. In preparation of a possible Chicago Olympic Games, the USOC forced Chicago businesses "Olympic Meat Packers" and the "Improv Olympic Theater" to stop using the names (now they are Olympia Meat Packers and iO Theater).
Was there really a fear that someone might confuse a side of pork with the Olympic Games?
USOC is acting a lot like the parent IOC (International Olympic Committee).
The IOC has a tradition of greedily claiming everything they can.
The most recent to hit the news being the take down letter sent to Richard Giles. (IOC Letter)
Seems they are not too happy about him taking photographs of their events and posting them on Flickr with a Creative Commons license.
I don't think the IOC has a chance of stopping him. From what I can tell, they seem to be making 2 claims:
1 - Upon entering the Olympic event you agreed to certain terms, including limitations on how you may use any photos you take there.
2 - The Olympic logo is intellectual property and you don't have a right to make a copy of it (say, photographing an Olympics flag) or to distribute said copy.
The second is pretty much a dead claim since there are more fair use exceptions available than there are pictures of barely clad female athletes on Richard's Flickr Page
The first strikes me as more fruitful for the IOC since it's basically a contract claim. The problem is they said he could use his photos for "personal" use, but there's no definition of what that means. I suspect putting your photo up on your Flickr page is personal, even if you let other people take and modify copies.
It will be interesting to see it play out if they do bring a legal action. His deadline to comply was Thursday - and the photos are still there.
The newspaper in Olympia Washington is "the Olympian" - and it has been so since 1889. Washington wasn't even a state then!
What difference does statehood make? None. I just thought it was interesting; but if you don't then how about 'before the modern Olympics'?
That's right, the modern Olympic Games began in 1896, 7 years into the run of the Olympian newspaper.
Now the USOC thinks it has some kind of priority over the name Olympian.
Why would they think that? I mean, the games ante-date the newspaper, and the committee itself wasn't called as such (or really formalized) until 1961. Why would this relative babe in the use of the term claim it had an exclusive right to the name?
Well, the Amateur Sports Act of 1978 is why.
That law was set up to protect the rights of athletes and provide some consistency across national borders. It also gave the USOC the exclusive rights to the trade names "Olympic" and "Olympiad."
In 1998 Congress gave us The Ted Stevens Olympic and Amateur Sports Act. That gave even more power to the USOC, and added some words to the exclusive trademark regime of the USOC - though oddly, it did not add the word "Olympian".
What's even more interesting though is that the Congressional Record (where all the debates in Congress are, well, recorded) includes background statements from at least one Senator explaining why there is an exception in the law for businesses in the part of Washington state around the Olympic Mountains. He (then Senator Slade Gordon) said it would only be fair to let those people keep using the name of their location.
Well, it looks like the USOC no longer wants to play fair.
So what are they doing about it now? In 2006, the Olympian newspaper in Olympia Washington applied for registration of their name as a trademark with the United States Patent and Trademark Office. The newspaper tried to register their mark and the USOC is trying to stop them, claiming "Olympian" is so similar to "Olympic" or "Olympiad" that consumers will get confused.
Yeah, I know I hate it when I want to buy tickets for a biennial sporting event and instead end up with a newspaper covering western Washington state.
The two are so similar.
Seriously? Confusion? And this hasn't come up in the past 100+ years the two entities have been operating?
This is actually pretty standard fare for the USOC. In preparation of a possible Chicago Olympic Games, the USOC forced Chicago businesses "Olympic Meat Packers" and the "Improv Olympic Theater" to stop using the names (now they are Olympia Meat Packers and iO Theater).
Was there really a fear that someone might confuse a side of pork with the Olympic Games?
USOC is acting a lot like the parent IOC (International Olympic Committee).
The IOC has a tradition of greedily claiming everything they can.
The most recent to hit the news being the take down letter sent to Richard Giles. (IOC Letter)
Seems they are not too happy about him taking photographs of their events and posting them on Flickr with a Creative Commons license.
I don't think the IOC has a chance of stopping him. From what I can tell, they seem to be making 2 claims:
1 - Upon entering the Olympic event you agreed to certain terms, including limitations on how you may use any photos you take there.
2 - The Olympic logo is intellectual property and you don't have a right to make a copy of it (say, photographing an Olympics flag) or to distribute said copy.
The second is pretty much a dead claim since there are more fair use exceptions available than there are pictures of barely clad female athletes on Richard's Flickr Page
The first strikes me as more fruitful for the IOC since it's basically a contract claim. The problem is they said he could use his photos for "personal" use, but there's no definition of what that means. I suspect putting your photo up on your Flickr page is personal, even if you let other people take and modify copies.
It will be interesting to see it play out if they do bring a legal action. His deadline to comply was Thursday - and the photos are still there.
Tuesday, September 15, 2009
Obey the Law? We Don't Roll That Way
I think in my next case I will take a page from the Ellen DeGeneres show.
Judge: Is there a reason your client did not provide this crucial document during discovery?
Me: Yes, your honor. We don't roll that way.
Judge: Oh, okay. Motion for Sanctions dismissed.
On second thought, maybe not.
I just can't get my head around this. There's got to be more to the story.
For those of you who don't watch daytime television, Ellen DeGeneres is host of an eponymous television show. In my opinion she's actually quite talented and funny, though I don't watch the show except when I'm on vacation. After delivering a monologue each day, Ellen dances from her monologue stage to the interview seating area, accompanied by some hit pop song of the day.
Recording industry people realized that the Ellen DeGeneres Show was playing recordings of those songs, but had not actually paid for a license to play the songs.
So, someone from the recording industry called up the show inquiring why they hadn't bought a license and were told "We don't roll that way."
I'm having a hard time envisioning that conversation. Here's how it plays in my mind:
RI person: Hi, is this the producer of Ellen?
EDS person: yes it is.
RI person: Well we just realized you did not buy the inexpensive and easily obtainable license to play recorded performances of the songs you use each day. We own the copyrights and wonder why you didn't pay for permission to use them.
EDS person: We don't roll that way.
RI person: but . . . it's required. It's the law.
EDS person: that's whack! *click*
No, doesn't sound right, does it. All we get from The Complaint is the infamous "we don't roll that way" line.
There's another little puzzler. The Show bought licenses for the compositions, but not for the sound recordings. You see, here's a very rough idea of how it works. A composer writes a song. He or she gets someone to record it, either by contacting a musician (it's very common in country music for someone to write a song and mail it to their favorite performer) or if he/she is a musician, by renting studio time.
When that happens there's now a new work: the sound recording (or phonorecord).
The Show paid for the composition. That means they can perform the piece, just like how a Kiss cover band can play their own version of "Calling Dr. Love" but if they want to play the tape of Kiss performing it, they need a different license.
So they clearly knew they needed a license. It's a really hard thing to think someone as sophisticated as Warner Brothers, who owns the production company behind the Ellen DeGeneres Show - and who also spawned the now independent Warner Records* - would not know they needed a license. It will be fun to see how this one plays out.
*That's right, Warner Records is suing Warner Brothers Entertainment, it's momma.
Judge: Is there a reason your client did not provide this crucial document during discovery?
Me: Yes, your honor. We don't roll that way.
Judge: Oh, okay. Motion for Sanctions dismissed.
On second thought, maybe not.
I just can't get my head around this. There's got to be more to the story.
For those of you who don't watch daytime television, Ellen DeGeneres is host of an eponymous television show. In my opinion she's actually quite talented and funny, though I don't watch the show except when I'm on vacation. After delivering a monologue each day, Ellen dances from her monologue stage to the interview seating area, accompanied by some hit pop song of the day.
Recording industry people realized that the Ellen DeGeneres Show was playing recordings of those songs, but had not actually paid for a license to play the songs.
So, someone from the recording industry called up the show inquiring why they hadn't bought a license and were told "We don't roll that way."
I'm having a hard time envisioning that conversation. Here's how it plays in my mind:
RI person: Hi, is this the producer of Ellen?
EDS person: yes it is.
RI person: Well we just realized you did not buy the inexpensive and easily obtainable license to play recorded performances of the songs you use each day. We own the copyrights and wonder why you didn't pay for permission to use them.
EDS person: We don't roll that way.
RI person: but . . . it's required. It's the law.
EDS person: that's whack! *click*
No, doesn't sound right, does it. All we get from The Complaint is the infamous "we don't roll that way" line.
There's another little puzzler. The Show bought licenses for the compositions, but not for the sound recordings. You see, here's a very rough idea of how it works. A composer writes a song. He or she gets someone to record it, either by contacting a musician (it's very common in country music for someone to write a song and mail it to their favorite performer) or if he/she is a musician, by renting studio time.
When that happens there's now a new work: the sound recording (or phonorecord).
The Show paid for the composition. That means they can perform the piece, just like how a Kiss cover band can play their own version of "Calling Dr. Love" but if they want to play the tape of Kiss performing it, they need a different license.
So they clearly knew they needed a license. It's a really hard thing to think someone as sophisticated as Warner Brothers, who owns the production company behind the Ellen DeGeneres Show - and who also spawned the now independent Warner Records* - would not know they needed a license. It will be fun to see how this one plays out.
*That's right, Warner Records is suing Warner Brothers Entertainment, it's momma.
Saturday, September 5, 2009
Identifying Frogs
Can someone tell me how to identify this frog? He hopped out of my oregano plant as I was watering it this morning.
I'd really like to know if he's a native.
Thursday, September 3, 2009
California Hates Breasts
You've seen the "Got Milk?" ads all over the place. Did you know they are the product of the State of California?
Specifically the California Department of Food and Agriculture.
You've probably even seen some spoof of them: Got Beer? Got Tunes? etc.
Well if you haven't there's a Texas company selling several spoof stickers on the "Got ____" motif. (these stickers are designed for vehicle windshields)
But this time they've gone too far! - according to the state of California.
The California Department of Food and Agriculture has filed a lawsuit against the Texas sticker company for violating its trademark. Funny, they didn't think "Got Beer?" was similar enough to cause confusion (or to defame) but this one they do.
What does the nefarious sticker say?
Got Breastmilk?
I guess because it starts with "Got" and ends with "milk?" it's confusingly similar.
Personally I think it's ridiculous. Obviously the California Department of Food and Agriculture is not trying to promote or encourage the sale of breast milk. How could anyone think "Got Breastmilk?" has anything to do with the California Department of Food and Agriculture I couldn't guess.
But apparently I'm alone. The USPTO actually issued a denial to someone trying to register the t-shirt logo "GOT BREASTMILK, I DO". The reason for denial?
Applicant had appropriated the GOT MILK slogan "for use with a service that is closely related to the goods sold by registrant and the type of promotional services offered by applicant as well. These similarities in goods and services, make it highly likely that those familiar with applicant’s goods and services, will conclude that registrant is now putting its slogan on t-shirts so as to promote milk."
Exactly what goods and services would a woman wearing this t-shirt be selling that is so close to what California is promoting?
Unfortunately the applicant did not fight to continue the application in the PTO and the application was deemed abandoned. I think she would have won.
Now oddly enough, there is something I find meritorious in the suit.
For one thing, it hurts the "Got Milk?" mark because after seeing this, I'm less inclined to buy milk. But beyond that, there is possible Dilution of a famous mark.
I don't think there's any arguing that "Got Milk?" is not famous.
Dilution is basically using a mark (or an extremely similar mark) on some OTHER product than what the mark holder is selling. The mark is diluted because it loses its strength for selling a product. People may start associating the mark with something else and the mark/product association in the minds of consumers won't be as sudden and as strong.
So, I do see the "Got Breastmilk" sticker as possibly making the "Got Milk?" mark less associated with the California Milk Processor Board. But the same I think would be true for "Got Beer?".
I guess they just thought this was a closer link and therefore a better fight to pick.
Two final things about the Texas Sticker company.
1 - what's with them and newborn babies? They have a sticker that says "MECONIUM HAPPENS".
2 - apparently just filing the suit worked. The "Got Breastmilk?" sticker is no longer available at their website.
source
Specifically the California Department of Food and Agriculture.
You've probably even seen some spoof of them: Got Beer? Got Tunes? etc.
Well if you haven't there's a Texas company selling several spoof stickers on the "Got ____" motif. (these stickers are designed for vehicle windshields)
But this time they've gone too far! - according to the state of California.
The California Department of Food and Agriculture has filed a lawsuit against the Texas sticker company for violating its trademark. Funny, they didn't think "Got Beer?" was similar enough to cause confusion (or to defame) but this one they do.
What does the nefarious sticker say?
Got Breastmilk?
I guess because it starts with "Got" and ends with "milk?" it's confusingly similar.
Personally I think it's ridiculous. Obviously the California Department of Food and Agriculture is not trying to promote or encourage the sale of breast milk. How could anyone think "Got Breastmilk?" has anything to do with the California Department of Food and Agriculture I couldn't guess.
But apparently I'm alone. The USPTO actually issued a denial to someone trying to register the t-shirt logo "GOT BREASTMILK, I DO". The reason for denial?
Applicant had appropriated the GOT MILK slogan "for use with a service that is closely related to the goods sold by registrant and the type of promotional services offered by applicant as well. These similarities in goods and services, make it highly likely that those familiar with applicant’s goods and services, will conclude that registrant is now putting its slogan on t-shirts so as to promote milk."
Exactly what goods and services would a woman wearing this t-shirt be selling that is so close to what California is promoting?
Unfortunately the applicant did not fight to continue the application in the PTO and the application was deemed abandoned. I think she would have won.
Now oddly enough, there is something I find meritorious in the suit.
For one thing, it hurts the "Got Milk?" mark because after seeing this, I'm less inclined to buy milk. But beyond that, there is possible Dilution of a famous mark.
I don't think there's any arguing that "Got Milk?" is not famous.
Dilution is basically using a mark (or an extremely similar mark) on some OTHER product than what the mark holder is selling. The mark is diluted because it loses its strength for selling a product. People may start associating the mark with something else and the mark/product association in the minds of consumers won't be as sudden and as strong.
So, I do see the "Got Breastmilk" sticker as possibly making the "Got Milk?" mark less associated with the California Milk Processor Board. But the same I think would be true for "Got Beer?".
I guess they just thought this was a closer link and therefore a better fight to pick.
Two final things about the Texas Sticker company.
1 - what's with them and newborn babies? They have a sticker that says "MECONIUM HAPPENS".
2 - apparently just filing the suit worked. The "Got Breastmilk?" sticker is no longer available at their website.
source
Wednesday, September 2, 2009
I never thought lime in beer was a good idea, much less worth suing over
Anheuser-Bush sues a little Canadian brewery over the use of limes and the color green to sell beer.
Seriously.
I know you American Corona drinkers shove a bit of lime in the bottle (it's my understanding this is rare in Mexico) and call it yummy but that's just wrong. And where's the salt?
Anyway, this can't be a serious lawsuit. They put lime (or lime flavor) in the beer and put a picture of a lime and use the color green (the color of ripe limes, duh) on the label. Now they think they can stop anyone else who puts lime in the beer from using a picture of a lime or using the color green?
I hate to say this, but I believe this is not a real issue, but just AB trying to use its deeper pockets to dominate the field by misuse of the legal system.
A term cannot be a trademark unless it is distinctive. AB may be the first to market this way, and they may have put a lot of money into marketing to make their product and label known, but in the end it's descriptive. It tells you what flavor is in the beer. A descriptive term can't be a valid trademark unless it has established a secondary meaning. When you see a picture of a lime and the color green, is your first thought really "Oh, Bud Light!" ? Didn't think so.
But those crafty Canadians aren't just using the logical descriptive of limes on their lime beer, they are also allegedly copying AB's advertising.
"Anheuser also objected to Brick’s use of a Web site saying like its own Web site for Bud Light Lime, it used pictures of young, attractive people wearing bathing suits."
That's right! Women in bikinis to sell beer! Ingenious! I bet nobody ever thought of that before.
Seriously, Anheuser Bush, don't you have anything better to do?
one newspaper source
Seriously.
I know you American Corona drinkers shove a bit of lime in the bottle (it's my understanding this is rare in Mexico) and call it yummy but that's just wrong. And where's the salt?
Anyway, this can't be a serious lawsuit. They put lime (or lime flavor) in the beer and put a picture of a lime and use the color green (the color of ripe limes, duh) on the label. Now they think they can stop anyone else who puts lime in the beer from using a picture of a lime or using the color green?
I hate to say this, but I believe this is not a real issue, but just AB trying to use its deeper pockets to dominate the field by misuse of the legal system.
A term cannot be a trademark unless it is distinctive. AB may be the first to market this way, and they may have put a lot of money into marketing to make their product and label known, but in the end it's descriptive. It tells you what flavor is in the beer. A descriptive term can't be a valid trademark unless it has established a secondary meaning. When you see a picture of a lime and the color green, is your first thought really "Oh, Bud Light!" ? Didn't think so.
But those crafty Canadians aren't just using the logical descriptive of limes on their lime beer, they are also allegedly copying AB's advertising.
"Anheuser also objected to Brick’s use of a Web site saying like its own Web site for Bud Light Lime, it used pictures of young, attractive people wearing bathing suits."
That's right! Women in bikinis to sell beer! Ingenious! I bet nobody ever thought of that before.
Seriously, Anheuser Bush, don't you have anything better to do?
one newspaper source
Tuesday, July 21, 2009
Mormons are all about Family
Yes, big families is the benchmark of the Mormon church. That and tracing genealogies. So they are all about helping families, right?
That's why when a New Zealand man started a company that helps unite lost or adopted children with their families, the Mormons helped out by
suing him.
Yes, the Jesus Christ Church of Latter Day Saints took a man to court for registering the domain name www.familysearch.co.nz.
It seems the Mormons use "familysearch" in their genealogy services and they demand he sign that domain over to them.
That's why when a New Zealand man started a company that helps unite lost or adopted children with their families, the Mormons helped out by
suing him.
Yes, the Jesus Christ Church of Latter Day Saints took a man to court for registering the domain name www.familysearch.co.nz.
It seems the Mormons use "familysearch" in their genealogy services and they demand he sign that domain over to them.
Friday, June 19, 2009
free rider infringement
One of the basic principles of American Trademark law is that you can't make something that looks or sounds like someone else's product or service. The problem that would cause is someone might want to buy product A, get confused by the look-alike, and buy product B by mistake. B then unfairly benefited at the expense of A on A's brand recognition.
Thus one question immediately asked in a trademark case is "is there a likelihood of confusion" among consumers.
Well not so in Europe it seems.
The European Court of Justice has just ruled that likelihood of confusion is not necessary to find trademark infringement.
It seems "unfair advantage" is the key in European trademarks.
news source
The "free rider" problem is one economists tackle all the time. It's when one party benefits from the actions of another or others, but doesn't participate in that action. One example is the person who doesn't pay taxes. That person still uses the roads, is still protected by the military, but doesn't pay for any of those services and gets a free ride off others paying. Another example would be the anti-vaccination person. If 90% of the kids are vaccinated, the odds of your kid getting sick though not vaccinated are slim. He benefits from the herd immunity resulting from everyone else getting vaccinated (the problem there is if vaccination rates drop to say, 80-85%, herd immunity is lost and you get epidemics).
So in Europe, if you intend to ride someone else's coat tails, but you aren't fooling anybody, you are still guilty of infringement.
What really bugs me is the judgment specifically said this is infringement even when there is no harm to the trade mark owner! In other words, it's a victimless crime. Consumers have access to a product they might not otherwise have. A different market segment is served. Everyone wins, but for some reason it's a bad thing. Now they are saying you can't indicate that your product is an imitation of another product, even if that's exactly what you are doing.
I'd hate to see this reasoning come across the pond.
Thus one question immediately asked in a trademark case is "is there a likelihood of confusion" among consumers.
Well not so in Europe it seems.
The European Court of Justice has just ruled that likelihood of confusion is not necessary to find trademark infringement.
It seems "unfair advantage" is the key in European trademarks.
news source
The "free rider" problem is one economists tackle all the time. It's when one party benefits from the actions of another or others, but doesn't participate in that action. One example is the person who doesn't pay taxes. That person still uses the roads, is still protected by the military, but doesn't pay for any of those services and gets a free ride off others paying. Another example would be the anti-vaccination person. If 90% of the kids are vaccinated, the odds of your kid getting sick though not vaccinated are slim. He benefits from the herd immunity resulting from everyone else getting vaccinated (the problem there is if vaccination rates drop to say, 80-85%, herd immunity is lost and you get epidemics).
So in Europe, if you intend to ride someone else's coat tails, but you aren't fooling anybody, you are still guilty of infringement.
What really bugs me is the judgment specifically said this is infringement even when there is no harm to the trade mark owner! In other words, it's a victimless crime. Consumers have access to a product they might not otherwise have. A different market segment is served. Everyone wins, but for some reason it's a bad thing. Now they are saying you can't indicate that your product is an imitation of another product, even if that's exactly what you are doing.
I'd hate to see this reasoning come across the pond.
Out of their minds
How does this happen?
Insanely large judgment
I understand willful infringement of copyright is a bad thing. Illegally downloading songs knowing you are doing so should be penalized.
But $80,000 per song? How is that in any way justified?
What happened to the principle of proportionality where the punishment matches the crime? There is no way one copy of one song can cause $80,000 in harm to the record label.
Perhaps it's the old Lincoln addage: "the best way to get rid of a bad law is to enforce it."
I love her reaction though. Reminds me of a quote from the Who. Pete Townshend I think.
Remember, this was the early 1960s so money meant a lot more then. The Who had a bit of shtick where they would smash their instruments at the end of the show, along with much stage equipment. One day they were called into their manager's office to be informed they were 100,000 pounds in debt. Their reaction was to roll on the floor laughing. Pete (I think) said something along the lines of "when you're 10,000 pounds in debt you worry because somehow you've got to pay that off. But you know you're never going to pay off 100,000 pounds so it's just laughable."
Of course their story ended better, with them becoming world-wide blockbuster stars and easily paying off everything.
And now they stand on the side of the creditor, demanding payment from mom for her downloads. (though I doubt she downloaded the Who)
That brings up another thing though: I bet dollars to donuts not a penny of that judgment will go to the artists. Do the artists get the nickel on the dollar off the judgment that they would have gotten off a paid-for download? Probably not, though I would be interested to find out.
Insanely large judgment
I understand willful infringement of copyright is a bad thing. Illegally downloading songs knowing you are doing so should be penalized.
But $80,000 per song? How is that in any way justified?
What happened to the principle of proportionality where the punishment matches the crime? There is no way one copy of one song can cause $80,000 in harm to the record label.
Perhaps it's the old Lincoln addage: "the best way to get rid of a bad law is to enforce it."
I love her reaction though. Reminds me of a quote from the Who. Pete Townshend I think.
Remember, this was the early 1960s so money meant a lot more then. The Who had a bit of shtick where they would smash their instruments at the end of the show, along with much stage equipment. One day they were called into their manager's office to be informed they were 100,000 pounds in debt. Their reaction was to roll on the floor laughing. Pete (I think) said something along the lines of "when you're 10,000 pounds in debt you worry because somehow you've got to pay that off. But you know you're never going to pay off 100,000 pounds so it's just laughable."
Of course their story ended better, with them becoming world-wide blockbuster stars and easily paying off everything.
And now they stand on the side of the creditor, demanding payment from mom for her downloads. (though I doubt she downloaded the Who)
That brings up another thing though: I bet dollars to donuts not a penny of that judgment will go to the artists. Do the artists get the nickel on the dollar off the judgment that they would have gotten off a paid-for download? Probably not, though I would be interested to find out.
Friday, May 22, 2009
Toughen up you "Pussy"
One week ago the US Patent and Trademark Office's Trademark Trial and Appeal Board upheld an examiner's decision not to register a trademark for a new energy drink. The proposed mark is a stylized phrase, "PUSSY NATURAL ENERGY." The TTAB didn't like the word "pussy".
The Decision
HOW CAN THEY REFUSE?
The Trademark Act Section 2(a), 15 U.S.C. § 1052(a), permits the USPTO to deny registration of a mark on the grounds that the mark “consists of or comprises immoral or scandalous matter.”
So the examiner found the word "PUSSY" to be scandalous and the TTAB agreed.
In fact the examiner found the word to be a term for female genitalia that is "vulgar, offensive, taboo, obscene and coarse".
The decision provides a list of interesting terms, some deemed scandalous (Bubby Trap brasiers), others deemed not scandalous (Big Pecker T-shirts). So even if a mark is unique and not descriptive or suggestive, registration can be denied if it is too vulgar.
BUT NOT ALL MEANINGS ARE VULGAR
True that there are other meanings, such as a cat or a pussywillow, etc. But what the PTO has to decide is whether it has a vulgar meaning to a substantial group. For instance if there's a word with one meaning to most people, but in a particular ethnic minority community it bears a different, offensive meaning, the PTO can refuse registration. In this case the PTO decided to a large number of people the term would signify something vulgar and offensive.
But that's true for Big Pecker too. The difference is Big Pecker included a picture of a chicken with a gigantic beak. It was permitted because it held an obvious double meaning. The double entendre was the clear message. The PTO and TTAB rejected out of hand any argument that "PUSSY" has a double meaning in that context.
On that I disagree with them. In the context of an energy drink I think the meaning of a "weak or cowardly man" is clearly playing along side the obvious vulgar jokes around having a beverage called "pussy". I think the TTAB was wrong to dismiss it so readily, but I'm not sure the decision was wrong. "Pussy" as a term for a "weak or cowardly man" derives from the chide that the object is not really a man but is in fact a woman. In other words, along with being a vulgar reference to female anatomy, it carries a wealth of negative female stereotypes. If anything I would think such a meaning is worse.
BUT WHAT ABOUT FREE SPEECH?
It seems they should not stand in the way of him using the name despite its vulgar quality, and guess what; they aren't. He is still perfectly free to sell his drink and call it whatever he wants to (provided he's not making false claims about it). Trademark registration is a tool that helps a mark holder to exercise the rights he gets through use of the mark. He can go ahead and sell his drink, and judging by all of his foreign registrations, looks like he will.
At the end of the day, my problem lies with the statute itself. Whether or not something is scandalous is so subjective and so clearly changeable. I don't think the federal government should be making moral judgments about the content of a mark. As long as it is distinctive and exclusive, that should be enough. So, while I think this is a bad law, I think the TTAB was correct in interpreting that bad law.
The history on the statute is scarce, and the courts have determined that the purpose behind it was not to legislate morals, but merely to prevent the government from spending time, money and providing services for objectionable material. (In re McGinley, 660 F.2d 481)
Of course, how is refusing to provide services based upon the offensive quality of the material not legislating morality? There is no difference between providing a benefit to everyone but those you deem immoral and penalizing those you deem immoral. Plus, I suspect more money and time are spent in fighting over denial of registration than would have been provided if registration had been approved.
So Scalia was simply wrong when he said Lawrence v. Texas spelled the end of morality-based state action.
The Decision
HOW CAN THEY REFUSE?
The Trademark Act Section 2(a), 15 U.S.C. § 1052(a), permits the USPTO to deny registration of a mark on the grounds that the mark “consists of or comprises immoral or scandalous matter.”
So the examiner found the word "PUSSY" to be scandalous and the TTAB agreed.
In fact the examiner found the word to be a term for female genitalia that is "vulgar, offensive, taboo, obscene and coarse".
The decision provides a list of interesting terms, some deemed scandalous (Bubby Trap brasiers), others deemed not scandalous (Big Pecker T-shirts). So even if a mark is unique and not descriptive or suggestive, registration can be denied if it is too vulgar.
BUT NOT ALL MEANINGS ARE VULGAR
True that there are other meanings, such as a cat or a pussywillow, etc. But what the PTO has to decide is whether it has a vulgar meaning to a substantial group. For instance if there's a word with one meaning to most people, but in a particular ethnic minority community it bears a different, offensive meaning, the PTO can refuse registration. In this case the PTO decided to a large number of people the term would signify something vulgar and offensive.
But that's true for Big Pecker too. The difference is Big Pecker included a picture of a chicken with a gigantic beak. It was permitted because it held an obvious double meaning. The double entendre was the clear message. The PTO and TTAB rejected out of hand any argument that "PUSSY" has a double meaning in that context.
On that I disagree with them. In the context of an energy drink I think the meaning of a "weak or cowardly man" is clearly playing along side the obvious vulgar jokes around having a beverage called "pussy". I think the TTAB was wrong to dismiss it so readily, but I'm not sure the decision was wrong. "Pussy" as a term for a "weak or cowardly man" derives from the chide that the object is not really a man but is in fact a woman. In other words, along with being a vulgar reference to female anatomy, it carries a wealth of negative female stereotypes. If anything I would think such a meaning is worse.
BUT WHAT ABOUT FREE SPEECH?
It seems they should not stand in the way of him using the name despite its vulgar quality, and guess what; they aren't. He is still perfectly free to sell his drink and call it whatever he wants to (provided he's not making false claims about it). Trademark registration is a tool that helps a mark holder to exercise the rights he gets through use of the mark. He can go ahead and sell his drink, and judging by all of his foreign registrations, looks like he will.
At the end of the day, my problem lies with the statute itself. Whether or not something is scandalous is so subjective and so clearly changeable. I don't think the federal government should be making moral judgments about the content of a mark. As long as it is distinctive and exclusive, that should be enough. So, while I think this is a bad law, I think the TTAB was correct in interpreting that bad law.
The history on the statute is scarce, and the courts have determined that the purpose behind it was not to legislate morals, but merely to prevent the government from spending time, money and providing services for objectionable material. (In re McGinley, 660 F.2d 481)
Of course, how is refusing to provide services based upon the offensive quality of the material not legislating morality? There is no difference between providing a benefit to everyone but those you deem immoral and penalizing those you deem immoral. Plus, I suspect more money and time are spent in fighting over denial of registration than would have been provided if registration had been approved.
So Scalia was simply wrong when he said Lawrence v. Texas spelled the end of morality-based state action.
Friday, May 15, 2009
Taking Off
Introduction:
I have decided that 2009 is the year I go solo.
I will be recording my progress here, as well as my general thoughts of the law.
Some of my posts will be humorous, some will likely be made in anger.
This is part business and part expression.
Lyon Legal is a firm seeking to focus in Copyright and Trademark litigation.
I have more than 4 years of experience as a litigator. I have appeared for clients in cases in District and Circuit Courts in Maryland and in the local courts of the District of Columbia. I have also appeared for clients in the United States District Court for the District of Maryland and the District of Columbia.
I also maintain a license to practice in Oklahoma, where I have many family and friend connections, though I have never practiced law there.
In addition to this blog I have a twitter presence
http://twitter.com/VincentLyon
and I am on facebook:
http://www.facebook.com/VincentTLyon
Background:
I was born and raised in Oklahoma City.
I went to Rosary Catholic school for primary school, and Northwest Classen High School.
My college education began with 2 years at St. Gregory's College (now St. Gregory's University) where I acquired an Associate's Degree in Natural Sciences.
I went on to obtain a Bachelor's Degree in History from Cornell University.
Returning to Oklahoma for personal reasons, I received a Masters Degree in Museum Studies from the University of Central Oklahoma.
After a few years working in that and related fields I realized my great interest in property rights of artists and authors.
In 2004 I graduated from the George Washington University law school.
I was licensed in Maryland in December of that year and in the District of Columbia the following year. Two years after that I became licensed in Oklahoma.
My practice has been diverse. I have handled bankruptcies, divorces and child support cases, contract disputes, personal injury, and of course copyright and trademarks.
I set out on my own, inspired by President Obama's inaugural address and look forward to the fulfillment of being my own boss.
I have decided that 2009 is the year I go solo.
I will be recording my progress here, as well as my general thoughts of the law.
Some of my posts will be humorous, some will likely be made in anger.
This is part business and part expression.
Lyon Legal is a firm seeking to focus in Copyright and Trademark litigation.
I have more than 4 years of experience as a litigator. I have appeared for clients in cases in District and Circuit Courts in Maryland and in the local courts of the District of Columbia. I have also appeared for clients in the United States District Court for the District of Maryland and the District of Columbia.
I also maintain a license to practice in Oklahoma, where I have many family and friend connections, though I have never practiced law there.
In addition to this blog I have a twitter presence
http://twitter.com/VincentLyon
and I am on facebook:
http://www.facebook.com/VincentTLyon
Background:
I was born and raised in Oklahoma City.
I went to Rosary Catholic school for primary school, and Northwest Classen High School.
My college education began with 2 years at St. Gregory's College (now St. Gregory's University) where I acquired an Associate's Degree in Natural Sciences.
I went on to obtain a Bachelor's Degree in History from Cornell University.
Returning to Oklahoma for personal reasons, I received a Masters Degree in Museum Studies from the University of Central Oklahoma.
After a few years working in that and related fields I realized my great interest in property rights of artists and authors.
In 2004 I graduated from the George Washington University law school.
I was licensed in Maryland in December of that year and in the District of Columbia the following year. Two years after that I became licensed in Oklahoma.
My practice has been diverse. I have handled bankruptcies, divorces and child support cases, contract disputes, personal injury, and of course copyright and trademarks.
I set out on my own, inspired by President Obama's inaugural address and look forward to the fulfillment of being my own boss.
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