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July 31, 2006

Your Brain On Brands, con't

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I'm on vacation this week but I made a point of finding wi-fi so I could bring this article to your attention, from the NY Times Sunday magazine: The Brand Underground. It had the promise og being about something - namely how the latest generation is responding to the consumerist lifestyle but ultimately the article (and perhaps, the latest generation, deteriorating into just a list of places to buy $60 t-shirts.

When I read sentences such as "there is an apparent disconnect between the idea of 'brand' and the idea of 'underground', I am reminded that the song "Boys of Summer" that contains the lyric "I saw a Deadhead sticker on a Cadillac", is over twenty years old.

So if there will be a change in the anti-sell-out/sell-out cycle, this article didn't make a convincing case (to me at least), nor did it really demonstrate why these $60 t-shirts are more significant than expensive t-shirts of yesteryear.

There was, however, this interesting (to a trademark lawyer) observation:

The Hundreds [a brand discussed in the article] lifestyle and its components — Los Angeles, skateboarding, music, art — sound a little vague and may be most apparent by analyzing a recent Hundreds T-shirt graphic. The shirt has a title: Jerky Boy. The design takes the logo of Tommy Boy, the pioneering hip-hop label, and reimagines its three silhouette figures in the style of the moshing cartoon teenager used as an emblem of the legendary Southern California punk band the Circle Jerks. Looming over the Circle Jerks mascot, who is repeated in three Tommy Boy poses with props including skateboards and handguns, is “The Hundreds” and the phrase “California Culture.”

Streetwear designers often refer to graphics that riff off some other logo or icon or brand name as “parodies.” Kind of like the Ramones logo, which took the presidential seal but substituted a baseball bat for the arrows the eagle clutches in its talons. But the word “parody” can be misleading: often the visual references are more like a sampled bass line — recognizable to some but not to others — that makes a remix add up to more than the sum of its parts. It can be tribute or mockery or something in between, but the new cultural value that results accrues to the minibrand that did the remixing.

I'm going to totally cop out and blame it on the fact that I'm on vacation and I'm expected to rejoin my family at the beach shortly but I will leave you with a superficial observation - Andy Warhol's soup cans aptly demonstrates that consumerism and branding are important subjects for artistic comment - however the law does not seem as amenable when that artistic comment appears on clothing.

If we have a generation of designers growing up who have consumed nothing but brands (to the soundtrack of sampled music), then our concepts of infringement and dilution may have to accomodate the way this generation perceives brands.

July 29, 2006

Blogging Sporadic At Best Until August 7

July 28, 2006

New IP Blog From Massachusetts: Legal Fixation

From Newburyport, Massachusetts, the law firm of Saunders and Silverstein bring us Legal Fixation.

Prof Patry on Idea Theft

The Patry Copyright Blog: "Grosso Mondo: Bad Ideas Never Die"

Coulrophobia, Continued

Eric Goldman on more coulrophobia.

Today's Typo Site

www.yputube.com

Buyer Beware, In Italy

Counterfeic Chic reports that in Italy, buyers of counterfeit bags may be subject to fine (and the government provides info on how to spot fake bags).

July 27, 2006

SciFinder Scholar v. Google Scholar

News.com: "Google Scholar trademark case ends."

Video: One Logo's Story

Designer Chris illustrates the step by step process of creating a logo.

July 26, 2006

EURid Says Good EuRiddance To Registrars

Silicon.com: Dot-eu 'warehousing' scandal strikes US registrars.'

EURid press release here.

Prior Trademark Blog coverage of allegations of irregularities concerning the .EU roll-out here.

She Drinks The Zombie From The Cocoa Shell

Did the song "Cousin Dupree" inspire the movie "You, Me and Dupree"? Steely Dan thinks so.

Today's trivia question: name song titles subsequently used as movie titles. Should we include bio-pics (Coal Miner's Daughter, Walk The Line)? Movies inspired by songs (Ode to Billy Joe)?

We'll go first:

Peggy Sue Got Married

UPDATE:

The answers pour in:

BioPics:

Sweet Dreams
Great Balls of Fire
Round Midnight
La Bamba
What's Love Got To With It

(the thought occurs - someone like Scorcese or Paul Thomas Anderson whould do a BioPic of Ornette Coleman)

Somehow based on the song:

Rock n' Roll High School
Nine To Five

Not Related to the song:

Stand By Me
Pretty In Pink
Sixteen Candles
Helter Skelter
Amazing Grace
Dazed and Confused

Beatles movies

Hard Day's Night
Help
Yellow Submarine
Sgt Pepper (eech)

Concert films have been disqualified from the list.


July 25, 2006

LV Brand Awning?

Check out this photo via Counterfeit Chic.

Reimagined Logos

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Various logos, reimagined. HT kottke.

July 24, 2006

Trademark Blog Befriends Court In First Amendment/Trademark Case

The Trademark Blog was a signatory on a friend of the court brief in Freecycle v. Oey. The case involved two problematic points - a finding that talking about a trademark (without more) might constitute trademark infringement, and an order enjoinging defendant from making any remark that might disparage plaintiff's trademark. Details at the Volokh Conspiracy and links to the relevant papers here.

Video - How To Spot A Fake Rolex


From ReplicaWatchReport.com

July 21, 2006

Lagerfeld on Counterfeiting

Showing Off Your New Trade Dress

Details here at Shape Blog.

YouTube TOS - Anatomy Of A Blog Thread

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This Boing Boing post on YouTube's terms of service as it pertains to any rights it reserves in the user's submissions, illustrates a common pattern of how the blogosphere puzzles out contractual terms:

1. Alarmist Parade of Horribles (YouTube will own your stuff and sell it)

2. Amen Chorus in Comment Thread (Those thieving copyight-owning VC-funded MSM bastids)

3. The Inigo Montoya correction (Someone writes in to note that "I don't think it means what you think it means")

4. The Horse's Mouth (YouTube spokesperson responds)

5. (Sometimes) Alarmist last word (they're still thieving copyright-owning VC-funded MSM bastids).

July 19, 2006

Your Brain On Brands

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Austrian website Monochrom (an art-technology-philosophy group) attempts to investigate branding power by asking consumers to draw famous logos from memory.

July 18, 2006

Stoller Sanctioned

TTAB: TTAB sanctions Leo Stoller: Vacates All Extensions Granted Since November 2005.

A Shout Out To Nintendo

I can't get into the details but someone at Nintendo performed an act of compassion and charity for a child we know. Thank you, and that's the opinion of the firm.

July 17, 2006

Senator Stevens, Tubes, MySpace, and Bad Robots

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All things considered, I would rather not start the day reading in the NY Times that someone who works for me was accused of copyright infringement, even erroneously, but there you are.

Net Neutrality is an important issue and Seante Commerce Committee chairman Ted Stevens (R, Alaska), who was ridiculed last year for the Bridge to Nowhere, was ridiculed again last week for making a speech about the Internet that was widely viewed as being, uh, incoherent.

Part of that ridicule consisted of a song composed by Andrew Raff, blogger and attorney here. He put together The Ted Stevens Fan Club on MySpace. 2500 users last week accessed the site to hear the song about Internet tubes.

Then the site was taken down and Andrew received an email from MySpace stating:

MySpace has deleted your profile because we received a credible
complaint of your violation of the MySpace Terms of Services.

Prohibited activity includes, but is not limited to:

-Any automated use of the system, such as using scripts and/or bots
to add friends, send messages, etc.

-For band and filmmaker profiles, MySpace prohibits sexually
suggestive imagery or any other unfair, misleading or deceptive
content intended to draw traffic to the profile.

-MySpace also investigates credible complaints of copyright/
trademark infringement and will delete any materials that infringe
upon the intellectual property rights of third parties.

Now Andrew certainly didn't do the first two things, and he composed the music and the lyrics (other than those that quote the Senator) for the song, so we, and the NY Times, wondered whether the Senator, or someone acting on his behalf, had brought the complaint.

Which would have many disturbing ramifications.

So I wrote the general counsel of Fox Interactive this morning and asked who brought the complaint and what work was infringed. He responded:

" . . .the account was not suspended due to a user report.
Our customer service group monitors "fan sites" through arrangements
with record labels whose artists have official pages on the site.
"

This actually makes sense. MySpace would have to use crawlers to monitor all that user content. Andrew's site attracted a lot of traffic in a short period of time, to download an audio file, and had 'fan club' in its title to boot. This fits a music pirate profile.

And what of the first email that said a credible complaint had been received? Simply put, it was wrong.

The site was put back up, and the song is available again, so no harm, no foul?

However that a policing 'bot (or human supervision thereof) should be empowered to take down the site for 40 hours - that's of some concern.

As is the fact that someone such as Senator Stevens has so much power of the issue of Net Neutrality.


Australian government explanation of the Internet here.

What Has The Schwimmer Mitchell Law Firm Been Up To, Lately?

Well, in the Southern District Court of New York, we're representing a clothing designer that is suing a discount retailer and manufacturer for copyright and trade dress infringement.

In the Eastern District Court of NY, we're representing a games manufacturer against a competitor in an unfair competition and cybersquatting action.

Also in the EDNY, we're defending a domain name registrar against a former domain name registrant, who has alleged a variety of putative torts and quasi contractual claims.

In the Trademark Trial and Appeal Board, we're defending a manufacturer against claims by a standards organization that is administering a software standard conceived, developed and named by our client that the standards organization owns the mark.

Also in the TTAB, we're defending a restaurant against a competitor's claims that periods of nonuse by our client's predecessor in interest consitute abandonment notwithstanding evidence of efforts to resum use.

We have several UDRPs going, representing trademark owners, famous and otherwise.

We have various and sundry matters on-going, including various enforcement activities, negotiation of trademark licenses, and opinion letters regarding the protection of unconventional trademarks.

Thanks for asking.

July 14, 2006

Enough Trademarks Used Generically To Fill A Bankers Box

Wikipedia provides a list of 'generic trademarks' and a list of 'trademarks often used generically.'

HT Invent Blog.

A Chance To Meet Other People Who Oppose Counterfeiting

FOR IMMEDIATE RELEASE
July 14, 2006

IACC HOLDS ANNUAL FALL CONFERENCE IN DALLAS
Leading Experts to Discuss Anticounterfeiting Issues and Strategies

WASHINGTON, D.C. - The International AntiCounterfeiting Coalition (IACC), the largest international organization devoted to combating product counterfeiting and piracy, will hold its 2006 Annual Fall Conference October 4-6 at the Adam’s Mark Hotel in Dallas, Texas.

Leaders in the anticounterfeiting field, including intellectual property lawyers, brand protection managers, private investigators and security managers, will discuss efforts to stop counterfeiting.

Rene Albury of the Software & Information Industry Association will be among the conference’s well-respected keynote speakers. Representatives from Authentix, Calvin Klein, General Motors, Seven For All Mankind, and many other leading brands will lead panel discussions.

Experts will share strategies and best practices during special break-out sessions and roundtables covering various industries affected by piracy – from automotive to luxury goods, from pharmaceuticals to electronics, and many more. Additional sessions will offer the latest efforts to fight counterfeiting in foreign countries.

Guests will also have an opportunity to meet with IACC’s new president, Nils Montan, former Vice President of Senior Intellectual Property Counsel at Warner Bros.

To register, download the registration form at www.iacc.org/Conferences.html.

Facts about the problem of counterfeiting:
- The problem has grown over 10,000 percent in the last 20 years.
- Counterfeit goods are estimated by the World Customs Organization to make up between 5 and 7 percent of all global trade.
- The profits from counterfeiting have been linked to funding organized crime, drug trafficking and terrorism.
- The estimated annual sales in counterfeit products worldwide is $600 billion.
- 68 percent of counterfeit goods (ranked in dollar value) seized by U.S. Customs originated in either China or Hong Kong in 2004.

About the IACC:
The International AntiCounterfeiting Coalition (IACC) is the largest international organization devoted solely to combating product counterfeiting and piracy. Comprised of a cross section of business and industry - from autos, apparel, luxury goods, and pharmaceuticals, to food, software and entertainment - the IACC's members' combined annual revenues exceed $650 billion. The IACC develops and conducts training for domestic and foreign law enforcement officials, submits comments on intellectual property enforcement laws and regulations in the United States and abroad and participates in regional and international programs aimed at improving intellectual property enforcement standards.

###

July 13, 2006

Further Evidence That You Cannot Believe A Damn Thing You Read In The Papers

From the Corrections & Amplifications in today's Wall Street Journal:

"When a ball is passed toward the Opponent's goal line in soccer, an attacking player who is even with the next-to-last defender or with the last two defenders is in a legal position. The "On Sports" column in Friday's Weekend Journal imprecisely said that players who are even with the last defender aren't considered off-side in that situation."

Exclusively Blue

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Textile World reports that Linq Industrial Fabrics has registered the color blue. Reg. no. 3097115 covers: synthetic resinous fabrics for use in the manufacturer of bulk container in the nature of bags and wraps for industrial use."
The description of the mark (pictured above) in the registration is:

"The color blue is claimed as a feature of the mark. The color blue appears throughout the mark as it is a part of the goods. The mark consists of the color blue as applied to the goods themselves. The broken lining in the drawing serves to show the position of the mark on the fabric goods and is not a part of the mark itself."

The mark as applied to the goods looks like this:

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The Website Formerly Known As NPGMC

Price closes his website at NPGMusicClub.com and his attorney says it has nothing to do with a recent lawsuit brought by antoher NPG.

Shoes For Industry

The Patent and Trademark Office is opening a new exhibit "Shoes: Innovations At Your Feet" in the National Invetors' Hall Of Fame in its offices in Virginia.

July 12, 2006

More Websites About Buildings And Food

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WSJ (free for a while): "Making a Buck Off Your Pet-Trick Videos" (discussing websites such as Revver.com, that pay users for submitting content).

I'm reminded of the Talking Heads song 'Found A Job,' about people producing their own television shows, which song was only twenty five years ahead of its time.

"Domain Name Service Promises Safer, Faster Browsing"

News.com: "DNS service promises safer, faster browsing" (domain name look-up service intended to combat phishing and typo sites).

July 11, 2006

Maybe They Should Push The FANTA

Discussion of backlash agaisnt Coke in Somalia, now that Islamic Militias have taken over, via NY Times.

Rejuvenating Brands

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NY Times: "Mr. Peanut, You're Perfect. Now Change."

July 06, 2006

Real Trademark Issues In Virtual Worlds

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Second Life, in its own words, is:

". . . a 3-D virtual world entirely built and owned by its residents. Since opening to the public in 2003, it has grown explosively and today is inhabited by over 200,000 people from around the globe . . .

You'll also be surrounded by the Creations of your fellow residents. Because residents retain the rights to their digital creations, they can buy, sell and trade with other residents.

The Marketplace currently supports millions of US dollars in monthly transactions. This commerce is handled with the in-world currency, the Linden dollar, which can be converted to US dollars at several thriving online currency exchanges. " (emphasis added).

A Business Week profile on Second Life reports that it "could even challenge Microsoft Corp.'s Windows operating system as a way to more easily create entertainment and business software and service."


American Apparel, will now open a virtual store in Second Life.
(screen shots courtesy of the store's designer, Aimee Weber.

At the same time, people are apparently selling 'items' in this virtual world bearing recognizable trademarks. Pop-PR and Scobelizer give examples. Pop-PR notes the American Apparel opening and opines that:

If corporations are going to begin launching officially branded SL products in the game, if there are already trademark infringements, that is going to impede companies from going in to the SL universe.

So Scobleizer asks "Can trademarks be defended in Second Life?"

I think the answer is "probably" as long as it remains within Second Life's interests to defend trademarks.

I was interviewed for this article in The Guardian that discusses some of the issues involved. The important point is that the users of Second Life enter into terms of service agreements. This gives SL the power to enforce trademarks. Other 'intermediaries' such as Verisign, Google, EBay have adopted varying models of how they go about it, but they certainly can 'take down' the most egregious infringements.

However if an avatar beckons you from a darkened virtual doorway, pulls up his virtual sleeves to reveal six virtual watches on each virtual arm, and a text balloon says 'Hey buddy, would you like to buy a watch real cheap?,' then enforcement in that case may be more complex.

July 05, 2006

What Is Cosmo?

Ken Jennings, Jeopardy champ, has a blog, and has written an excellent post on the protectability of facts, that is to say, fictional facts about sitcoms, such as Kramer's first name. HT 43(b)log.

Have A Nice Day

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NY Times: 'Smiley Face Is Serious To Company' Story of the Loufrani family, which owns trademark registrations to the 'smiley face' around the world. If you have tiume to kill, you can go to TTABVue and use 'Loufrani' as a search term, to pull up dockets for its various oppositions against the likes of Wal-Mart.

The article claims that the smiley face was created by Harvey Wall in 1965 (and doesn't credit Forrest Gump). Loufrani reportedly filed in the U.S. in 1997, Wal-Mart reportedly used the mark in 1996.

July 03, 2006

Al Queda: Tall, Grande or Venti?

We have previously noted how the 'clash of civilizatiions' manifests itself in small part as reactions against Western brands (MECCA Cola and QUIBLA Cola, and the RAZANNE Doll).

However, as illustration of unintended consequences, I suggest that but for Al Queda and the Taliban, there would not be a Starbucks in Kandahar (albeit an unauthorized one). HT Ann Althouse.

We Can Get It For You Retail

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Europe By Net takes orders for designer furniture through its catalog and website, apparently fulfills these orders by buying at retail in Europe, and ships them to the customer. It still, reportedly, can beat U.S. retail prices for those items. Europe By Nets' website claims that some of its prices are 20 to 30% below U.S. retail. For example, the Flexform sofa depicted above is advertised at $7066, compared to $11,192 US retail.

Europe By Net is now asking the EU to investigate whether five Italian furniture manufacturers are engaged in a campaign of slander and price-fixing, making it more difficult for the comany's Web site to advertise its service and sell its items. Via NY Times.