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.

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.

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.


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