On January 30, 2010, my mother died suddenly and unexpectedly. She was 82 so it was not entirely unexpected. However, she did not have any chronic health problems beyond arthritis and some circulation difficulty in her legs. Basically her kidneys gave out, her blood pressure dropped precipitously, and when blood returned to her heart the strain was too much and her heart failed.
I took some time off an have been involved in another project and taken vacation, but I'm back now and ready to post again.
Wednesday, April 28, 2010
The Reason for My Absence
On January 30, 2010, my mother died suddenly and unexpectedly. She was 82 so it was not entirely unexpected. However, she did not have any chronic health problems beyond arthritis and some circulation difficulty in her legs. Basically her kidneys gave out, her blood pressure dropped precipitously, and when blood returned to her heart the strain was too much and her heart failed.
I took some time off an have been involved in another project and taken vacation, but I'm back now and ready to post again.
I took some time off an have been involved in another project and taken vacation, but I'm back now and ready to post again.
Sunday, January 17, 2010
Hail Mary is 35 now
The Hail Mary pass turned 35 in December.
Here is an excellent article about it.
I mention it here because of the last few lines of the article. Drew Pearson owns the trademark on "Hail Mary" for caps and shirts. I wonder if the Catholic Church was annoyed by that.
Here is an excellent article about it.
I mention it here because of the last few lines of the article. Drew Pearson owns the trademark on "Hail Mary" for caps and shirts. I wonder if the Catholic Church was annoyed by that.
Legend of Booty
I just read this brief article and as a trademark attorney something popped out at me:
Age of Booty sequel
On January 11, the makers of Age of Booty filed a trademark registration for the term "Legend of Booty."
The author of the article said "it doesn't make sense that they would register such a title without some sort of plan for a game to go with it." If he were a trademark attorney he would have known that not only does it not make sense, but it's not valid.
You have 2 possible bases for filing an application to register a trademark: you are using the mark in commerce, or you intend to use the mark in commerce within the next 6 months.
A quick peek at the USPTO website shows this is a 1B intent to use application and that it's for "computer game software . . . [etc.]"
So basically Certain Affinity has just told the world "we have a computer game coming out in the next 6 months called "Legend of Booty."
Age of Booty sequel
On January 11, the makers of Age of Booty filed a trademark registration for the term "Legend of Booty."
The author of the article said "it doesn't make sense that they would register such a title without some sort of plan for a game to go with it." If he were a trademark attorney he would have known that not only does it not make sense, but it's not valid.
You have 2 possible bases for filing an application to register a trademark: you are using the mark in commerce, or you intend to use the mark in commerce within the next 6 months.
A quick peek at the USPTO website shows this is a 1B intent to use application and that it's for "computer game software . . . [etc.]"
So basically Certain Affinity has just told the world "we have a computer game coming out in the next 6 months called "Legend of Booty."
Tuesday, January 12, 2010
Does Google Dream of Electric Sheep
Now here's a good case for learning a simple lesson about Trademark law.
The lesson: Trademark is not automatic.
Copyright is automatic. As soon as you put it down on paper (or other media "fixed" in tangible form) your right begins.
Trademark is a different beast. The first thing to realize is that legal protection does not begin as soon as you create the mark. The second thing to realize is that it doesn't begin with registering the mark either. Registering a trademark is a good idea because should you have a dispute over it, having it registered gives you numerous advantages. However, it has to be a valid mark before you can register it.
So how does a mark become a valid trademark? By using it in trade (or commerce if you prefer).
The basic concept of a trademark is that it identifies your goods to potential customers. Clear examples of trademarks are the swoosh that tells you it's a Nike shoe, or the golden arches that tell you a certain clown is pedaling ground beef and related food items. To register a mark, you must either already be using it for something you are selling, or you must have a sincere intent to use it within a very short period.
That brings us to the case of Blade Runner and Google's phone.
Nexus One
If you haven't seen the movie Blade Runner, based on the book "Do Androids Dream of Electric Sheep" by Philip K . Dick, staring Harrison Ford and Rutger Hauer (with excellent supporting roles by Brion James, Daryl Hannah, William Sanderson and others, and directed by Ridley Scott) then stop reading this blog and go watch it.
waits . . .
Now that you've seen it, you know that the renegade androids are Nexus-6. And Nexus One uses Android software. Hmmmmm. Coincidence?
Most likely yes.
I don't know why Google chose to call it's phone software "android" but given the sci-fi feel of the whole phone industry it's not ridiculous (or even particularly imaginative). Google explains why they called the phone "nexus" since it's supposed to be a nexus between your phone and your computer. One? well it's the first edition.
Android literally means "of the species of man" or "man-like". Its use goes back at least as far as the 13th century German theologian Albertus Magnus. In a popular 19th century French novel called "The Future Eve" or "L'Ève future", a character based on Thomas Edison invents an artificial woman to replace his best friend's fiancee.
The term "android" to depict a replica human is pretty clearly not a protectable use. A quick search of the USPTO shows 63 registrations of "android" - only 19 are live registrations that actually include the word android in the mark.
Google is one of them, but that doesn't mean they have a protected mark. A live registration is simply one that has not been denied or abandoned. That doesn't mean it's been approved.
Google's application is being stayed pending the outcome of a law suit in Illinois.
The Android’s Dungeon Incorporated sued Google for trademark infringement:
Specht, et al. v. Google Inc.
So now Google is facing another problem with trademarks, with threats coming regarding "Nexus One."
They don't have much to worry about though. As I explained, you have to use a mark to identify a product in order to get protection. "Nexus-6" is certainly similar to "Nexus One" but there's nothing to indicate Nexus-6 was ever used to mark a product. Not in this world anyway. In the fictional world within the novel it is actually the trademark name of the androids. But the law operates in this world. If Google had called their phone the "electric sheep" there might be a case, since that's a clear lifting from the title of the novel, and the title certainly identifies the product (the book) to buyers. But even if Google had intentionally lifted a term out of the text of the novel (provided it wasn't a copyright violation) they still would likely prevail in a trademark case.
In the end this is probably a non-story, but it does illustrate the concept that use does not provide trademark protection, only use in commerce does.
The lesson: Trademark is not automatic.
Copyright is automatic. As soon as you put it down on paper (or other media "fixed" in tangible form) your right begins.
Trademark is a different beast. The first thing to realize is that legal protection does not begin as soon as you create the mark. The second thing to realize is that it doesn't begin with registering the mark either. Registering a trademark is a good idea because should you have a dispute over it, having it registered gives you numerous advantages. However, it has to be a valid mark before you can register it.
So how does a mark become a valid trademark? By using it in trade (or commerce if you prefer).
The basic concept of a trademark is that it identifies your goods to potential customers. Clear examples of trademarks are the swoosh that tells you it's a Nike shoe, or the golden arches that tell you a certain clown is pedaling ground beef and related food items. To register a mark, you must either already be using it for something you are selling, or you must have a sincere intent to use it within a very short period.
That brings us to the case of Blade Runner and Google's phone.
Nexus One
If you haven't seen the movie Blade Runner, based on the book "Do Androids Dream of Electric Sheep" by Philip K . Dick, staring Harrison Ford and Rutger Hauer (with excellent supporting roles by Brion James, Daryl Hannah, William Sanderson and others, and directed by Ridley Scott) then stop reading this blog and go watch it.
waits . . .
Now that you've seen it, you know that the renegade androids are Nexus-6. And Nexus One uses Android software. Hmmmmm. Coincidence?
Most likely yes.
I don't know why Google chose to call it's phone software "android" but given the sci-fi feel of the whole phone industry it's not ridiculous (or even particularly imaginative). Google explains why they called the phone "nexus" since it's supposed to be a nexus between your phone and your computer. One? well it's the first edition.
Android literally means "of the species of man" or "man-like". Its use goes back at least as far as the 13th century German theologian Albertus Magnus. In a popular 19th century French novel called "The Future Eve" or "L'Ève future", a character based on Thomas Edison invents an artificial woman to replace his best friend's fiancee.
The term "android" to depict a replica human is pretty clearly not a protectable use. A quick search of the USPTO shows 63 registrations of "android" - only 19 are live registrations that actually include the word android in the mark.
Google is one of them, but that doesn't mean they have a protected mark. A live registration is simply one that has not been denied or abandoned. That doesn't mean it's been approved.
Google's application is being stayed pending the outcome of a law suit in Illinois.
The Android’s Dungeon Incorporated sued Google for trademark infringement:
Specht, et al. v. Google Inc.
So now Google is facing another problem with trademarks, with threats coming regarding "Nexus One."
They don't have much to worry about though. As I explained, you have to use a mark to identify a product in order to get protection. "Nexus-6" is certainly similar to "Nexus One" but there's nothing to indicate Nexus-6 was ever used to mark a product. Not in this world anyway. In the fictional world within the novel it is actually the trademark name of the androids. But the law operates in this world. If Google had called their phone the "electric sheep" there might be a case, since that's a clear lifting from the title of the novel, and the title certainly identifies the product (the book) to buyers. But even if Google had intentionally lifted a term out of the text of the novel (provided it wasn't a copyright violation) they still would likely prevail in a trademark case.
In the end this is probably a non-story, but it does illustrate the concept that use does not provide trademark protection, only use in commerce does.
Tuesday, December 1, 2009
Tillman involved in another controversy
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.
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.
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.
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