20
Oct/04

Trademark Bling Bling


The Next Bling, jewellery consisting of logos, by the Dutch artist Tjepkema.  Link via Kottke.org.



19
Oct/04

Protecting The Brand Called Me


A Danish businessman, Joachim Bruss-Jensen, had a falling out with a business partner, who turned around and registered JOACHIMBRUSS-JENSEN.COM and BRUSS-JENSEN.COM.  While the registrant’s actions appear to satisfy elements two and three of the UDRP, absence of bona fide interest, and bad faith, complainant failed in this UDRP, as he could not show tradmeark use of his personal name.

Two thoughts – to those who need to set up personal corporations, they may want to forego using a cute name and instead consider using their personal name in their corporate name.  Use of a personal name in this form has the added advantage of possibly creating rights under Article 8 of the Paris Convention.

The second thought : one hardcore critic of the UDRP has made the point that it gives preferential treatment to one class of names alone – trademarks.  A fraternal organization, for example, can have its name cybersquatted and it isn’t eligible for protection under the UDRP. This case shows that to be true -why doesn’t this businessman have a quick and affordable remedy?  However that isn’t an argument against the UDRP – it’s an argument for expanding the UDRP to include protection for personal and other names.



19
Oct/04

Tobacco Advertising In The UK


Tobacco Companies in Britain Assert Their Human Rights regarding tobacoo advertising, via Vice Squad.



19
Oct/04

PHAETON v. PHAETON


Russian company named Phaeton sues Volkswagen over use of PHAETON in Russia, via Just-auto.com.



19
Oct/04

This Is Your Brain On Brands


A study involving 67 people showed no preference for either Coca-Cola® (Coke®) or Pepsi® when the drinks were administered anonymously, according to results published in the Oct. 14 issue of the journal Neuron. However, when told what they were drinking, roughly three-fourths preferred Coke. All 67 also submitted to brain scans.

From: Scientists can now explain why the brain prefers one brand of soft drink to another in News-Medical.Net.

See also: If You Have a ‘Buy Button’ in Your Brain, What Pushes It?, in today’s NY Times, discussing use of brain scans to conduct brand research, also known as ‘neuromarketing.’  The article reports that the ‘brand loyalty’ part of the brain can override the ‘original perferences’ of the brain.



13
Oct/04

Stretch Pet Trade Dress Decision


Gateway Computers come in boxes with cow spots on them.  Companion Products sell ‘stretch pets’ which extend over a computer monitor or cpu.  Moose version depicted above.  They used to sell a cow with spots.  Gateway sued, alleging trade dress infringement, and prevailed.

Gateway v. Companion Products, 03-3410 (8th Cir sept 13, 2004).



13
Oct/04

GOOGLING, TIVO-LIKE, And Genericide


‘Genericide,’ is one phenomenon of trademark law that lay clients always seem to be aware of – that they could, in theory, lose their trademark if it becomes the generic term for that product (which I suppose is a secret fantasy of many clients). 

ASPIRIN, CELLOPHANE and ESCALATOR are famous examples of a brand losing its trademark status.  KLEENEX, BAND-AIDS and XEROX are famous examples of a brand retaining its status despite fairly widespread use by the public of those marks to designate the entire class of their respective products.

I don’t think the term GOOGLING dilutes the GOOGLE trademark unless it is utilized to refer to using any search engine.

What to make of this sentence?: “Reuters reports that XM [satellite radio] is planning its own TIVO-like device.”  It makes the trademark TIVO signify not the class of all DVRs (admittedly not a big class), but, somewhat inaccurately, to the functionality of all DVRs.

 



11
Oct/04

FAHRENHEIT 9/11, FAHRENHYPE 9/11, And Made You Look Confusion


I was watching CNN and what I thought was a commercial for Fahrenheit 9/11 when suddenly I see Mayor Koch calling Michael Moore a liar.  It was a commercial for Fahrenhype 9/11!  Made me look! 

By the way, if you type ‘Fahrenhype 9/11′ into Google, Google asks whether you meant ‘Fahrenheit 9/11.’

Clearly the name FAHRENHYPE 9/11 was chosen to parody FAHRENHEIT 9/11.  But parody is not a absolute defense if there is confusion.

There’re two types of potential confusion here.  The first is actual confusion – as in someone buys or rents the wrong DVD.  Who knows whether that is occurring. The second type (and, if I had to guess, the more probable in this instance), is initial interest confusion (long time Blog readers know of my obsession with this doctrine).  I was only exposed to Koch’s (and, maybe, the makers of Fahrenhype’s) views of Michael Moore because I was paying attention to what I thought was a commercial for FAHRENHEIT 9/11. I would not have paid any attention at all if the commercial had begun “Now, a DVD from someone who works for Fox News” (as does the individual who is credited with Fahrenhype).

And in this unusual situation, the transmission of the negative mesage about FAHRENHEIT, may be as important as sales of the FAHRENHYPE product.

If we were talking meta-tags, and this was the Seventh Circuit, then the mere ‘made you look’ effect alone would be actionable.



11
Oct/04

Cert Filed in Grokster


Cert petition filed by various movie studios and record labels in Grokster, via Scotus Blog.  Background here.



8
Oct/04

Tennis Ball Logo v. Tennis Ball Logo


Ellesse has sued Sean “P Diddy” Combs for trademark infringement in connection with his use of a tennis ball logo on his SEAN JOHN line of clothing.