25
Oct/03

Forbes on the Highest Earning Dead People


Forbes’ list of the highest grossing dead celebrities.  Interesting commentary here.  The list does not appear to distinguish between earnings from copyright (which probably accounts for most of these earnings) and those from ‘personality rights,’ which is probably how Marilyn Monroe makes it on the list.

The Top Ten
  1. Elvis
  2. Charles Schulz
  3. J.R.R. Tolkien
  4. John Lennon
  5. George Harrison
  6. Dr. Seuss
  7. Dale Earnhardt
  8. Tupac Shakur
  9. Bob Marley
10. Marilyn Monroe


23
Oct/03

Stop Driving That Buick LaCrosse Or You'll Go Blind


Via CNN.COM, GM has announced that it is changing the name of the BUICK LaCROSSE in Canada as it turns out that LaCrosse is shorthand for masturbation among teenagers in Canada.

Website of the Canadian Lacrosse Association here.

Article that frequent LaCrosse reduces the risk of prostate cancer here.

Debunking of the NOVA-South America-poorly-chosen-trademark saga here and here.

 



23
Oct/03

Descriptive, By Gum


IPKat on the ECJ DOUBLEMINT decision in which it the proper test of descriptiveness is discussed.



22
Oct/03

Post-Purchase Confusion


The Independent of the UK on the ability of advertisers to ‘morph memories’ of consumers – planting messages after the fact and perhaps creating false memories.  Disney’s “Remember the Magic’ campaign is given as an example.  Via Kottke.org.



22
Oct/03

Hasbro Sues Maker of GHETTOPOLY


John Welch alerts us that Hasbro, makers of the MONOPOLY game, has sued David Chang, maker of the GHETTOPOLY game.  Coverage of the lawsuit here and here.  Coverage of the reaction to the game here.

One telling of the ANTI-MONOPOLY trademark saga here.



22
Oct/03

Gilberto Gil To Use Creative Commons License


The Wall Street Journal reports (no free online link available) that Gilberto Gil, Brazilian musician (and Cultural Minister as well) will be releasing a CD under the Creative Commons license.  More from Prof. Lessig here.



21
Oct/03

Text of Decision in Caterpillar v. Disney . . .


. . . in which Caterpillar’s TRO against Disney is denied, available here.



21
Oct/03

Are Internet Users Like Wild Foxes?


Prof. Susan Crawford asked her property class, are ‘streams of mistyped domain names’ like wild foxes?  To which I add, are streams of correctly typed domain names like wild foxes?  How about search engine traffic?  Wild fox reference from first week of law school explained here.

 



21
Oct/03

Movies 2 Depicted Products 0


Caterpillar has lost its TRO motion to restrain Disney’s release of the movie “George of the Jungle 2,” which movie allegedly infringed and/or tarnished Caterpillar’s trademarks in its depiction of bulldozers in the movie.  Background here.

In a somewhat similar fact pattern, Wham-O had failed in enjoining the use of its SLIP N’ SLIDE product in the movie ‘Dickie Roberts’ (background here).  The Northern District of California noted in relevant part:

Defendants’ use of plaintiff’s marks satisfies all three aspects of this nominative use test. First, defendants use plaintiff’s mark to identify a product not otherwise readily identifiable. Other verbal formulas (e.g., “water slide” or “lubricated plastic sheet”) do not capture or identify the toy with adequate specificity, and trademark law does not compel individuals to “use absurd turns of phrase” simply to avoid trademark liability. See Welles, 279 F.3d at 804-05. In the film, defendants intend to identify the slide as a specific product; to do so requires the use of the product’s name. fn.8

 Second, defendants use “only so much of the … marks … as is reasonably necessary to identify the product or service.” Id. (citation omitted). fn.9 To identify the slide as a toy, it was at once sensible and necessary to refer to the slide by its popular name. A single character does so two times in the film. No depiction of plaintiff’s logos or marks appears otherwise, and defendants do not reference plaintiff’s marks unnecessarily or abusively. Defendants’ use does not exceed that which was “reasonably necessary.” Id.

And, third, defendants’ use does “nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.” Id.; see Brother Records, Inc. v. Jardine, 318 F.3d 900, 908 (9th Cir.2003). The actual word mark (viz., “Slip ‘N Slide”) is used but twice, and it is not used or displayed more prominently than any other term. Id. Like any other portion of the film’s dialogue or set, plaintiff’s mark forms part of the film’s jumble of imagery; it is not highlighted so as to exploit the value of plaintiff’s mark.

 As any moviegoer can attest, it is not unusual for movie producers to use a signature scene–and the products and props therein–to cultivate interest in a film. Films with car chases do so with cars; films with gunplay do so with firearms; films with haute couture wardrobes do so with clothing. Nothing in the record suggests defendants’ used plaintiff’s marks to imply that plaintiff placed its imprimatur on the film; nowhere in defendants’ publicity efforts is plaintiff’s mark unreasonably displayed or abused. Cf. id. (finding improper a defendant’s use of another’s mark as if it was defendant’s own). Defendants, instead, use the marks and product in a specific and unique descriptive sense: to evoke associations with an iconic child’s toy.

Wham-O v. Paramount Pictures, No. 03-4071 (N.D. Cal. Sept. 30 2003).



20
Oct/03

With A Name Like Smucker's


A California woman has brought an action against Smuckers, alleging that its description of its jam as “simply 100 percent fruit” is false, as the jam only contains 30 percent fruit.  Via Yahoo.

Information on the Federal Trade Commission here.