31
Aug/05

JAKE Brand as Opposed to DeSHAWN Brand


The book FREAKONOMICS discusses the concept of ‘whitest’ and ‘blackest’ first names (defined as prevalence among one race coupled with rarity in the other race).  The three ‘whitest’ girl names are Molly, Amy and Claire.  The three ‘blackest’ girl names are Imani, Ebony and Shanice.  The ‘whitest’ boy names are Jake, Connor and Tanner. The three ‘blackest’ boy names are DeShawn, DeAndre and Marquis.  The author discusses this in the context of how names can affect economic destiny (the answer is complex – because such names signal strong identification with a racial group, the names expose the individual to both positive and negative discrimination).

The thought occurs that trademarks function in similar fashion.  I have not encountered much research on the topic.



30
Aug/05

NY Times On Mr. Softee


NY Times article on MR. SOFTEE policing its mark.  Pictured here, private investigator photographing a look-a-like Mr. Softee truck (photo copyright Robert Caplin/NY Times).

Sheet music to MR. SOFTEE jingle.



25
Aug/05

Veggie Tales And The Copyright Statute Of Frauds


Veggie Tales is a series of animated videos, featuring stories and classic songs such as “Everyone’s Got A Water Buffalo,” “Cebu,” and “We Are The Pirates Who Don’t Do Anything.”

Veggie Tales’ creator, Big Idea, negotiated with a distributor over a period of years to grant it an exclusive license. No document styled as a final agreement was signed.  For a time the parties performed as if there were an agreement.  After Big Idea fired the distributor, the distibutor sued for breach.  In order to satisfy Section 204(a) of the Copyright Act, which requires a writing for transfer of ownership in copyright, including the grant of an exclusive license, the distributor identified two preliminary documents (a proposal and a list of open items), and an internal memo in which an officer of Big Idea stated that there was a deal in place.

Held by Fifth Circuit: the first two documents stated on their face that they were not final documents.  The internal memo (which had never been communicated to the distributor) was held not to be the sort of post-transfer memorialization that can satisfy 204(a).  Finally, partial performance will not remove the statutory requirement of a writing.  Action for breach dismissed.

Coverage here.

Text of decision here.

 

 



25
Aug/05

Phillips Academy v. KIPP: Phillips Academy


Phillips Academy of Andover, Mass. is a boarding school whose alumni include President Bush and Humphrey Bogart (!). 

KIPP: Philips Academy is a charter school in New Orleans, part of the Knowledge is Power Program network of free charter schools targeted at ‘under resourced’ communities.

Phillips of Andover is not tuition free and is not targeted at under resourced communities (but does provide financial aid and states that financial need should not discourage applicants).

This is a 2003 newspaper article reporting on a visit by a Phillips Andover official to the ‘KIPP Academy.’

Phillips of Andover has apparently protested KIPP’s use of the Phillips name .



25
Aug/05

Lost v. Lost


Via Nerdlaw, article on dispute over ‘Lost,’ TV show about airplane crash survivors who encounter strange creatures, noting that Gilligan’s Island bears eerie similarity.



25
Aug/05

Use Of Trademarks On 'Replica Model Vehicles'


Interesting discussion thread on the INTA list on the use of trademarks on ‘replica model vehicles.’



24
Aug/05

Live Nude Domain Names and Who Rules The Root?


My original reaction to the proposed .XXX Top level domain was that it was something of a harm reduction initiative not worth over-selling - it will not reduce the amount of adult material on the Web, but might make it a little more difficult (but not impossible) to access such material in certain sequestered networks (schools, libraries . . .).  It also may create an island of self-policing in that industry.

What .XXX does not seem likely to do is increase the amount of adult material on the Internet (if that’s even possible).  Nevertheless, protests to the U.S. Government based on that assumption appears to have set in motion a chain of events that has led to the suspension of the process of ‘delegation’ of the TLD.

Again, the hot button of ‘who is in charge here’ has been pressed.  The history of the relationship between ICANN and the U.S. Government is ‘complex’ to put it mildly, as is the role of the GAC, or Government Advisory Committee of ICANN.  I recommend resources such as ICANN Watch for those interested in analyzing this matter in the context of Internet Governance.

 



24
Aug/05

BioCryst Gripe Site UDRP Case


Mark Partridge via CircleID on gripe site case involving BioCrystPharamceuticals.com.



24
Aug/05

IMPORTANT: Fourth Circ, Decision in Lamparello v. Falwell (FALWELL.COM)


Text in Lamparello v. Falwell, Fourth Circuit decision in which registrant of FALWELL.COM receives summary judgment agaisnt Rev. Falwell, dismissing infringement and cybersquatting action.



24
Aug/05

FedEx Furniture


A resourceful guy built some furniture completely out of FEDEX boxes. 

Then he built a website named FEDEXFURNITURE.COM.

Then FedEx protested on trademark, copyright and terms of service grounds.

Then Standford’s Cyberlaw Clinic helped him out.

Now he’s doing the talk shows.

The analysis likely differs for furniture made of boxes he receives directly from FedEx and boxes he comes by after they’ve been used.  Exhaustion doctrines would apply to ‘found’ boxes.  Also, when you order supplies from FedEx, you enter an agreement to use the supplies for shipping, not furnishing your home (note that FedEx alleges breach of its TOS and this may rise to conversion as well (no pun intended)).

Via Mommy Blawg and Wired.

UPDATE:  UK practitioner John Lambert gives us an English perspective on this matter.