30
Sep/03

Homage?


Via cnn.com: The estate of fashion photographer Guy Bourdin is suing Madonna for her use of images inspired by those of the photographer, in her recent music video.  A side-by-side comparison of frames from the video and those taken by the photographer are here.



30
Sep/03

Who Wrote The Book of Links?


Interesting piece from Dave Winer entitled “The Rule of Links.”  I think that he uses ‘must’ when I would use ‘should,’ but I agree with one of his central tenets, which is that if you are discussing a source that is available on the Web, it is disrespectful to your reader not to link to it (and what about those who sell access to sources that are freely available on the web? I know of one law site that does).

To tie this (link this?) to trademark law, I note that I have written a short piece on the trademark theory of Initial Interest Confusion, in which I suggest that we are seeing an emerging tort of ‘deceptive diversion of traffic’ (embracing cyber-squatting but other activities as well).  In order to establish diversion, one would likely need to establish that users were not meandering but had a specific destination from which they were diverted.  A potential plaintiff may need to inferentially prove destination by showing what were the reasonable user expectations arising from a specific navigational device, such as a URL, search engine result, banner ad, or link.  For example, in the Panavision case, the Court accepted the ‘dot com assumption,’ namely that someone typing in [example].com, ‘expected’ to land on the page of the owner of the [example] trademark.

So that’s where the thought of a comprehensive rules of links come in.  I hope someone complies them.



30
Sep/03

First 'Dropped' Domain Name Case After Sex.com


Verisign has been sued by a domain name registrant for $3 million in damages allegedly resulting from Verisign’s ‘dropping’ of the domain name. This is the first suit against Verisign since the Ninth Circuit held in the sex.com case that  the negligent handling of a domain name registration was a colorable claim.



30
Sep/03

Second Circuit: Spider-Man Billboard Case Dismissed Without Prejudice


The owners of several buildings in Times Square had sued Sony Picutres because the movie SPIDER-MAN had contained digital renderings of those buildings altered to show different ads on the billboards than those found in real-life (presumably depriving the building owner and those advertisers of additional revenue).  The district court dismissed the trademark claim on the ground that no purchaisng decision was affected by the change; the trade dress claim was dismissed because the advertisements were changed so often that there could be no protectable trade dress; and the trespass claim was dismissed because taking the digital photograph of the buildings was not deemed to be the sort of actionable contact with physical property recognized as trespass.

On appeal, the Second Circuit has affirmed the dismissal of the federal claims.  However, it has reversed the dismissai WITH prejudice, instead remanding the case to the District Court to enter a dismissal WITHOUT prejudice, because the District Court should not have exercised supplemental jurisdiction over the state trespass claim.  A NY State Court has not yet ruled on the question as to whether physical damage is an element of trespass – the same issue raised by the Intel v. Hamidi case – and thus dismissal with prejudice was not proper.  Plaintiff can now re-file in state court should it choose to do so. 

Sherwood 48 v. Sony, 02-9100 (Sept 29, 2003) (click on decisions in frame).



30
Sep/03

TTAB Documents Available Online


John Welch tipped me off to the PTO’s unveiling of TTABVue, a system for viewing scanned-in TTAB documents filed since January of this year.



30
Sep/03

Se Habla Espanol


According to this WIPO press release, starting on April 1, 2004, applicants will be able to file for international trademark regsitrations in Spanish.



30
Sep/03

Nothing To Do With Radio-controlled Cars


According to the NY Times account of jury selection in the Dennis Kozlowski trial, the judge said “This is not about the toy company of a similar name.”

Home of Tyco RC here.



29
Sep/03

Mr. Krabs' Trade Secret Rights in the Krabby Patty: Discuss


Mr. Krabs zealously guards the secret of his secret sauce in his krabby pattys, which he sells in his restaurant, The Krusty KrabPlankton seeks to steal the recipe for his rival restaurant, The Chum Bucket.  Mr. Krabs observes an important tenet of trade secrets, in that he maintains the confidentiality of the secret sauce recipe, and has forbade his employees, including SpongeBob, from telling Plankton the secret.  If Plankton were to lawfully purchase a krabby patty, he could lawfully reverse engineer the recipe.  However, Mr. Krabby has barred Plankton from buying one.

Can Mr. Krabs lawfully refuse to sell Plankton a krabby patty?

If Plankton takes control of SponeBob’s brain (see episode 3), thus controlling his actions, and secures a krabby patty in that manner, can he lawfully reverse engineer the secret sauce?



26
Sep/03

Final U.S. Rules for Madrid Protcol


Rules of Practice for Trademark-Related Filings Under the Madrid Protocol Implementation Act; Final Rule, via patents.com.

Map of Madrid courtesy Lonely Planet, all rights reserved.



25
Sep/03

Searching via Amazon


Coverage on Amazon’s proposed search engine from AtNewYork.com, SmartMoney.com, and InfoWorld