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The Orange XML button on the left hand of my blog allows you to subcribe to the RSS (really simple syndication) feed of this site, if you were to use a news reader program such as Feed Demon. News readers are good ideas.
According to the Wall Street Journal, MLB Advanced Media, the online divsion of Major League Baseball, will not sign deals with companies that use spyware to serve ads. The article defines spyware as software that once installed on the user's machine, reports on the user's activities so as to determine which ads to serve to the user's computer.
No spyware logo from here.
Sixth Circuit: POWERZONE for Radio Shack's 'store-within-store' is not confusingly similar to and has not caused actual dilution of AUTOZONE for auto part chain.
AutoZone v. Tandy, 01-6571 (6th Circuit June 29, 2004)
Thompson and Thompson has agreed to purchase Information Holdings Inc., owner of search service Trademark.com and IP management software Master Data. Via AP.
Fourth Circuit: Copyright owner's claims against ISP for direct infringement dismissed, as ISP would have to commit volitional acts to be liable for direct, as opposed to indirect infringement.
CoStar v. LoopNet, 03-1991 (Fourth Circuit, June 21, 2004).
Federal Circuit: PATENTS.COM held to be merely descriptive of and not inherently registrable for software for tracking patents.
In re Oppedahl, 03-1525 (Fed Cir June 25, 2004) via Finnegan Henderson.
Olsen twins sue Acclaim over video game royalties, via Celebrity Justice (Celebrity Justice?).
International Society for Twin Studies here.
Artist Thomas Forsythe photographed BARBIE dolls to make an artistic point. Mattel sued him and lost. A District Court judge has now held that the parodic character of the work should have been clear to Mattel, whom he characterized as a 'sophisticated entity with access to good legal rerpesentation.' Accordingly, Mattel's copyright claim was 'objectively unreasonable,' and its trademark, trade dress and dilution claims were 'groundless and unreasonable.' Defendant was awarded $1,584,089 in attorneys fees and $241,797 in costs.
Mattel v. Walking Mountain Products, 99-8543 (C.D. Cal June 21, 2004)
I foolishly spent 4 years in Cambridge to get my Harvard degree (there, I was able to work it into the conversation again) when I could merely have gone to FAKE DEGREES and get what I am going to guess is an unauthorized reproduction of a Harvard (or any other college) degree.
Al Franken on working Harvard into the conversation here.
BBC article on trademark counterfeiting problems in the UK.
Someone spams AOL users using (or purporting to use) the shared hosting service I use for my email. AOL responds by stopping ALL email from ANY user of the hosting service. I can't send any business email to AOL addresses for two days.
Discuss my rights.
Report of oral arguments before 9th Circuit in Gator (Claria) v. LL Bean via Law.com.
Draft of Bill introduced in Senate: "Inducing Infringement of Copyrights Act of 2004."
2d Circuit discussion of New York State common law and international copyright issues.
Capitol Records v. Naxos, 03-7859 (2d Cir. June 21, 2004).
Master Card hooks up with NameProtect to fight phishing, via Internetnews.com.
Definition of Phishing here.
Phish discography here.
The Indiana Supreme Court decision below is notable for its use of the phrase 'Sgt. Schultz defense' to refer to the practice of reducing one's liability by avoiding involvement in an act, and then stating, like Sgt. Schultz in Hogan's Heroes, "I know nothing." However I can no longer think of Hogan without thinking of Auto Focus.
Via news.com, report that WhenU has received an injunction of Utah's anti-spyware law.
On the one hand, a trademark owner has a duty to exercise quality control over a licensed product manufactured by a third party. On the other hand, some courts will apportion product liability to the trademark owner relative to its role in the manufacture, design and distribution of the licensed product (which could encourage the trademark owner to have as little to do with the product as possible). However one of the points of licencing is to convince the customer that the trademark owner stands behind the licensee (franchising comes to mind).
There is an intellectual tradition of antipathy towards licensing in part because (I am over-simplifying a complex argument) it deceives the consumer. A consumer who bought a product relying on the quality of the licensed mark, and then, after the product explodes, finds that he/she had little or no remedy against the trademark owner (but perhaps a judgement-proof overseas manufacturer) may well find themselves in agreement with Lord Diplock that licensing is little more than trafficking in trademarks.
A recent Indiana Supreme Court decision discusses the tension between the Lanham Act and product liability. It's a ripe topic for student notes. (thanks to John W for running the actual decision down).
Kennedy v. Guess, Inc., 29502-0211-CV-594 (Indiana April 21, 2004).
From Google's SEC Filing:
We also face risks associated with our trademarks. For example, there is a risk that the word Google could become so commonly used that it becomes synonymous with the word search. If this happens, we could lose protection for this trademark, which could result in other people using the word Google to refer to their own products, thus diminishing our brand.
Tiffany sues eBay. At issue is: who should bear the burden of policing marks on eBay? The Reuters article claims that at one point, 73% of all jewelry marked as TIFFANY on eBay was counterfeit.
Via KillerMookie via Flynnberg, a very funny parody of The Matrix.
Political rival charges Congressman DeLay of accepting $20,000 from Bacardi in exchange for influencing legilsation that aided Bacardi in its trademark fight regarding the HAVANA CLUB mark. Via Houston Chronicle.
A previous instance of allegations that Bacardi contributed to politicians (in that case, $50,000 to Jeb Bush) to affect trademark matters, here.
Ray Bradbury, author of FARENHEIT 451, protests Michael Moore's use of FARENHEIT 9/11, via cnn.com.
NY Times article on particulars of how Google GMail will work. Of special interest re: trademarks:
Interestingly, Google has decided to allow e-mail messages sent by businesses promoting their services to contain ads from competing companies.
Last week, an e-mail message sent by Citibank to one customer, for example, arrived on Gmail with ads from Citibank and two financial services groups: National InterBank and Lots-of-Credit-Cards.com.
This kind of rival advertising has been a contentious issue on Google's Web search service. American Blind and Wallpaper Factory, for example, has sued Google demanding that it not show ads from other blinds sellers when people search for its name. Ms. Wojcicki said that Google believes that presenting ads from a range of companies is a service to its users.
Update: I've spoken to some colleagues about this. One reaction - some direct marketers' response will likely be to purge their lists of GMail addresses precisely because of this.
I'm hesitant to comment on something I've never seen (I'm going to sign up today) - so consider the following to be speculation unfettered by empirical knowledge. When I receive my credit card statement from XYZ, and the envelope contains various ad inserts, I don't necessarily assume that the advertisers are owned by XYZ but I do assume that XYZ approved the placement of those inserts in some way (and if the advertiser turned out to be fly-by-night, it would, at a minimum, refect poorly on XYZ). If the advertised goods or services were identical to those provided by XYZ (for example, credit card services), that fact would strengthen my belief that there was a relationship. After all, it's hard enough to get your customer's undivided attention. I assume that GMail will disclose to its users that the advertisers are unrelated to and unsponsored by the sender of the email. Will that disclosure be powerful enough to offset the common belief that companies tend not to provide advertising opportunities to their competitors?
Manchester United is the most valuable soccer brand. Real MAdrid was second. Via ESPN.
Body builder arrested for selling counterfeit human growth hormone, somatropin. Via Newsday.
South African newspaper THIS DAY, owner of thisdaysa.co.za, protests use of thisday.co.za, UK-based adult content site. Via iAfrica.com.
KaZaa in trouble over use of KAZAA as it is phonetically similar to CASA in Germany. Via p2pnet.net.
SPAM (Hormel) v. SPAM KING (Richter) via The Register.
Paranova of Norway defeats trade dress action brought by Merck, via InPharma.com. Also via InPharma.com, a report of a UK study on parallel imports of drugs and the relationship to counterfiet.
Steak n' Shake sues Burger King, alleging exclusive rights in STEAKBURGER. Burger King disagrees.
Wal-Mart steakburger party pack here.
Kansas City steakburger here.
Information on becoming vegan here.
Unusual full page ad in today's Wall Street Journal consisting of 'open letter' written by CEO of TRUE.COM, to Barry Diller, head of rival dating website MATCH.COM. Match.com subpoenaed 6 former employees who now work for True.com, for depositions regarding possible trade secret theft. Turning the tables, True.com asks "what is it exactly that you are trying to keep secret, Mr. Diller?"
Well, if Mr. Diller said, then it wouldn't be a valuable trade secret anymore.
Further proof of the old adage, don't do anything you wouldn't want to see as the subject of a full page ad in the Wall Street Journal.
True.com press release here.
Oddly, www.thedatinggame.com and www.datinggame.com point to a Sony.com site for PlayStation.
Further illustration of proposition that one (in this case two) may not use one's own name if to do so would cause confusion. Suisman has a dispute with his firm, SUISMAN, SHAPIRO, WOOL, BRENNAN, GRAY & GREENBERG (known as SUISMAN SHAPIRO), leaves, and hooks up with Shapiro to form SUISMAN & SHAPIRO. Relying on evidence of bad faith (Suisman threatened to find someone named WOOL, as well), the court enjoined Suisman and Shapiro from using a firm name in the form Suisman & Shapiro.
This NY Lawyer article reports that the Judge articulated dicta that will trouble name partners thinking of moving practices, in that the name of the firm had acquired secondary meaning to describe the firm.
Your state bar is the starting point for researching the 'letterhead' rules governing your firm.
AMERICA'S FAVORITE PASTA is non-falsifiable puffery, not a falsifiable claim subject to false advertising (and the Court doesn't need survey evidence to make that finding). Last line of decision: the Lanham Act protects against misleading statements, not misunderstood ones.
American Italian Pasta Company v. New World Pasta Company, No. 03-2065 (8th Cir. June 7, 2004)
Nipper's Patent Law Blog - "Covering current U.S. patent, trademark, copyright and IP law."
I/P Updates - "News and information for the sophisticated IP practitioner."
We are yet to see a patent blog entitled "Mother of Invention."
Although Registrant of domain name did lose this UDRP as he was found to have acted in bad faith (having been a former customer of complainant), the decision is noteworthy as it finds that registrant's use of proxy service to keep contact info private, in and of itself is not evidence of bad faith, given that there are good faith reasons for wanting to keep one's whois data private. The panel appears to give weight to what I am told by complainant's counsel is the erroneous fact that registrant's true identity was easily ascertainable.
CyBerCorp Holding v. Allman, (NAF May 14, 2004)
See also Porsche v. Domains By Proxy (WIPO May 2003) (Proxy service shares mal fides of respondent).
L.L. Bean sued advertisers using Claria (formerly Gator)'s pop up ad service. Defendants included J. C. Penney, Gevalia Kaffee and Atkins Nutritionals. Claria has now sued L.L. Bean for tortious interference. Story via ClickZ here.
Commentary on Texas' ability to protect "Don't Mess With Texas" slogan.
Photo of plate from this blog.
Britney Spears sued for her use of IN THE ZONE. Press release from plaintiff here.
Famous CHIHSANG trademark for rice receives trademark protection, via China Post. See related story on soy sauce here.
Ben Edelman on Dell's seeming paradoxical behavior of assisting computer users to remove adware, while simulataneoulsy advertising on Claria (Gator).
Relevant documents in WhenU's litigation re legislation re spyware, via Ben Edelman.
ESPN on Stadium Naming Rights.
Yahoo v. Google in patent suit re auctioning ads through keyword sales. Via Mercury News, via BlogBook.
Report of counterfeit PEARL RIVER BRIDGE SOY SAUCE in Hong Kong here.
PEARL RIVER BRIDGE SOY SAUCE itself available here.
Alton Brown of Good Eats on Real Soy Sauce here (See Scene 9).
Go to the US PTO search and type in LOW CARB.
Ziff-Davis article alleging that the new anti-spyware/adware tool distributed by Yahoo, does not identify Claria (Gator) or WhenU, implying that this may be due to Yahoo's commercial relations with those companies.
Claria and WhenU dispute that their products are 'spyware' (and Claria has litigated the point). For what it's worth I note the following.
Last week I suddenly started receiving a blizzard of pop up ads (which I normally never receive because I use the Google pop up blocker). I ran SpyBot and it revealed that WhenU was installed on my machine. Now, because of my familiarity with viruses, browser highjackers, etc., I never download software. and did not knowingly download WhenU or any program for that matter that day or the days leading up to that day More to the point, as a result of some matters I've handled, I am familiar with 'drive by downloads' and the like, and probably pay more attention to potentially-misleading dialog boxes, than does the average user.
Be that as it may, WhenU was still installed on my PC against my wishes. In my opinion, if I hit the 'wrong' key (and I'm not even sure I hit any button), I did so because of someone's deception.
Article via travelbiz.com.au reporting that the Australian government paid approximately $138,000 (any currency conversion error would be mine) for the domain name TOURISMAUSTRALIA.COM.
Via Pizza Marketing Quarterly, various Little Caesar's franchisees used unapproved pepperoni and cheese, thus allegedly breaching their franchise agreement, and Little Caesar's sued for trademark infringement.
From a video game fan blog named CUBE-EUROPE.COM, an article commenting upon names that Nintendo has registered in Japan. Given the widespread dissemination of free online trademark registries, a company's trademark filings are now easily discernable not only to one's competitiors but to one's customers as well.
UPDATE: Another video game company responds to customers who had spotted one of its trademark filings here.
The advertising blog ADLAND has compiled a comprehensive compilation of materials (including clips) relating to the Miller v. Bud 'Queen of Carbs' spat.
