The Trademark Blog

Lucas Films has a registration for THE DIG, a video game from 1995, used copies of whichI found for sale on eBay and on Vintagegaming.org.

DIGG is an archetypical 'user content' website - it is a news and information site listing stories from all over the web, based on voting by Digg members. Perhaps you've seen the DIGG THIS button below some blog posts to faciliate selection. I've previously discussed attempts to 'game' the DIGG system but that's another story.

Lucas has now filed a Notice of Opposition (not a lawsuit as reported in some places), alleging that registration of DIGG for news services about, among other things, gaming, would be confusingly similar to THE DIG for a video game. Reaction in the blogosphere is pretty much what you'd expect.

Lucas' Notice of Opposition is here. If you have a good theory as to what Lucas wins if it wins, tell me and I'll post it. My totally speculative theory, unfettered by actual facts, is that Lucas is keeping its options open for adapting THE DIG into a different property, perhaps a movie, and will want to broaden its coverage. Steven Spielberg reportedly conceived this game and Orson Scott Card wrote the dialogue for it, so why not?

Posted by Marty at 09:23 PM | Permalink | Comments ()

A reviewer for Grammophone puts a Liszt CD performed by the last pianist Joyce Hatto, into iTunes. ITunes identifies it as Liszt alright, but somebody else as the performer. And the uncovering of a high profile incident of plagiarism in concert music had begun.

The rest of the Hatto story in text form via Stereophile here, and as a NPR podcast featuring some the non-Hatto works in question here.

Posted by Marty at 11:33 AM | Permalink | Comments ()

MercuryNews.com: "Sex.com hijacker pleads poverty after fleeing to Mexico":

"A man who siphoned millions of dollars from a pornography Web site and fled to Mexico cried poor Monday and asked a judge to erase the $65 million he owes the rightful owner of Sex.com.

Stephen Michael Cohen was released from prison in December so he could surrender assets to Gary Kremen, the online entrepreneur who registered the domain name in 1994. But Cohen told U.S. District Court Judge James Ware that he's jobless and broke."

Posted by Marty at 10:02 AM | Permalink | Comments ()

Carl Oppedahl practices trademark and patent law from beautiful offices perched in the Rockies, and from that vantage point, he monitors the online infrastructure of the PTO. He maintains a listserv concerned with the Madrid Protocol (subscribe here) and posted the following, presenting interesting statistics on ETEAS, paper filings and Madrid (reprinted with permission):

"Today a client of our firm asked me "How long does it take for my USPTO applications to show up in TESS?" I did some searching to see how long it takes these days.

Used to be it averaged two weeks for an e-filed case and almost three weeks for a paper-filed case to turn up in TESS. Back in those days, a case would turn up in TARR several days before it would turn up in TESS. So a persistent searcher who wished to try very hard to learn about the most recently filed cases would do so by searching TARR, not TESS (plugging in successive serial numbers until the most recent case had been found).

Summary: These days it seems to average just under a week for an e-filed case to get into TESS. And TARR and TESS match, in the sense that anything that is in TARR is also in TESS; there is not a delay with things turning up in TARR first and then only later in TESS.
Paper-filed cases take about a week and a half to get into TESS and TARR.
Madrid cases get into TESS and TARR essentially instantly, meaning they get into TESS and TARR the same day that WIPO communicates them to USPTO.

Details: Here are some actual search results carried out today (the 25th, a Sunday). I looked for e-filed US trademark applications (1(a) and 1(b)). I looked for paper-filed US trademark applications (1(a) and 1(b)). And I looked for Madrid Protocol applications (66(a)). In each case my goal was to find the most recently filed case. I defined this as the highest-numbered serial number in each series (77, 76, and 79 respectively).

The most recent records to enter TESS and TARR were Madrid Protocol records. The highest-numbered "79" case (Madrid Protocol) was 79034226. This is a case which WIPO communicated to USPTO on February 22, 2007 (this past Thursday). Its US filing date was January 8, 2007, meaning that the time between January 8, 2007 and February 22, 2007 were spent at the Office of Origin (in this case, Sweden) and at the International Bureau. USPTO loaded this case into the USPTO databases on the same day that WIPO communicated it to USPTO.

The next previous day on which Madrid applications got communicated to USPTO was February 15, 2007, exactly a week earlier. I did not pursue this further, but the impression I get is that may be WIPO communicates Madrid cases to USPTO once a week, on Thursdays. If so, then sometimes (as today) the most recent records entered into TESS and TARR are Madrid records, but on other days of the week it might happen that the most recent records entered would be e-filed 1(a) and 1(b) cases.

The second most recent category of cases loaded into TESS and TARR (as of today) were the e-filed cases. The most recently e-filed case to be entered into TESS and TARR was a case that was e-filed at 23:58:34 EST, about a minute and a half before midnight Eastern Time on February 20, 2007 (this past Tuesday). This was application number 77112022.

The remaining category is, of course, the paper-filed cases. The most recently filed paper application to turn up in TESS and TARR was application number 76672824, filed February 16, 2007. So it took about a week and a half for that case to find its way into TESS and TARR.

What fraction of these cases were paper-filed, e-filed, or Madrid?

Of the 1(a) and 1(b) cases (US origin cases) that were filed February 16, 2007, the answer is that just over 95 percent were e-filed and just under 5 percent were paper-filed. This was on a day that there were 1182 US-origin cases filed. On that day, of the 1182 cases filed, 52 were paper-filed and 1130 were e-filed.

At around the same time, a weekly data load from WIPO amounted to 215 cases. This suggests that the workload of the USPTO trademark law offices is lately averaging maybe ten percent Madrid work and maybe ninety percent non-Madrid work."

Posted by Marty at 02:40 PM | Permalink | Comments ()

Full text of statement:

SAN JOSE and CUPERTINO, California—February 21, 2007—Cisco and Apple® today announced that they have resolved their dispute involving the “iPhone” trademark. Under the agreement, both companies are free to use the “iPhone” trademark on their products throughout the world. Both companies acknowledge the trademark ownership rights that have been granted, and each side will dismiss any pending actions regarding the trademark. In addition, Cisco and Apple will explore opportunities for interoperability in the areas of security, and consumer and enterprise communications. Other terms of the agreement are confidential.

Posted by Marty at 10:10 PM | Permalink | Comments ()

THe Smoking Gun: Lawsuit Over Topless Aniston Photo.

Posted by Marty at 10:07 PM | Permalink | Comments ()

Zee News: "Intel's Namesake (sic) Restrained From Using Its Trademark"

"The Delhi High Court has restrained a local company from using Intel Corporation's registered trademark 'Intel' and asked it to give compensation to the global chip maker for the infringement. "

Posted by Marty at 08:36 PM | Permalink | Comments ()

New Tee Vee: "Is NHL Putting YouTube On Ice?"

"The NHL, which gained nearly universal praise for its decision to allow widespread use and sharing of highlight clips on YouTube, seems to be putting the practice of allowing embedding on ice, with some NHL clips on YouTube now sporting the line Embedding disabled by request in the embed code field."

Posted by Marty at 08:30 PM | Permalink | Comments ()

Discussion of settlement in keyword purchase case by Prof Goldman.

Posted by Marty at 11:06 AM | Permalink | Comments ()

Reel.com: Viacom to put clips on Joost, Rebuffs Youtube:

"Just three weeks after pulling their content from YouTube, Viacom is expected to announce today a broad licensing agreement with Joost, a P2P video platform which was only recently released into beta. Viacom CEO Philippe Dauman says the decision was made because Joost promised to protect Viacom's copyrights.

Viacom's decision to go with Joost is a very public rebuff to YouTube's irksome decision to only deploy filtering technology after a company signs a distribution agreement."

Posted by Marty at 10:34 AM | Permalink | Comments ()

NY Times: "New Weapon in Web War Over Privacy":

"The new technological weapon is content-recognition software, which makes it possible to identify copyrighted material, even, for example, from blurry video clips."

Posted by Marty at 10:18 AM | Permalink | Comments ()

More about The Big Game here. Background about the NFL's published application for The Big Game here.

Posted by Marty at 10:09 PM | Permalink | Comments ()

This is only the second time I've used the word 'chutzpah' in 5 years of blogging, but, if the facts are as they appear, the use is justified.

Voicing an apparently widespread belief, comic Joe Rogan accused Carlos Mencia of stealing jokes. Rogan showed up at Mencia's act at the Comedy Store, and films a confrontation in which he accuses Mencia of plagiarism. Rogan uploads the video to YouTube. Mencia then uses the DMCA to remove the video that accuses him of plagiarism.

Rogan's website and Google Video still show the video.

UPDATE: A reader writes to advise that Rogan was onstage, made a remark about Mencia, then Mencia took the stage. More from Rogan about the protection of stand up comedy material, or lack thereof, here.

Posted by Marty at 11:51 AM | Permalink | Comments ()

Coverage of the Burning Man trademark case.

Complaint in the Burning Man case

Wikipedia entry for Burning Man

Posted by Marty at 08:26 PM | Permalink | Comments ()

I reported in 2003 that Levis had sued Esprit over a red tab on jeans. I see that Levis has sued 'Esprit Us Distribution' in the Northern District of California, on Tuesday. There are no news reports, and the complaint isn't available on ECF. I might as well link to my recent post on Levis

Posted by Marty at 08:17 PM | Permalink | Comments ()

Wendy Seltzer: "My First DMCA Takedown":

"On Feb. 8, I posted to YouTube a clip taken from the Super Bowl: not the football, but the copyright warning the NFL stuck into the middle of it, wherein they tell you it's forbidden even to share "accounts of the game" without the NFL's consent.

Their copyright bot didn't seem to see the fair use in my educational excerpt, so YouTube just sent me their boilerplate takedown. Time to break out that DMCA counter-notification."

Posted by Marty at 06:16 PM | Permalink | Comments ()

Counterfeit Chic: Knockoff News 50

Posted by Marty at 02:12 PM | Permalink | Comments ()

Hint: inspiration for one of the better selling U.S. novels of all time.

Discussion of the cover of Jonathan Livingston Seagull garnering zero % unaided awareness here.

Posted by Marty at 12:56 PM | Permalink | Comments ()

IHT: "Brussels Court Rules Against Google In Copyright Case":

"A court in Brussels ruled Tuesday that Google violated copyright laws by publishing links to stories from Belgian newspapers without permission, a case that legal experts said could have broad implications in Europe for the news services provided by search engines."

. . .

Google condemned the court decision and defended the news site. "This is an isolated case, and it would be inaccurate to portray Google News as standing in conflict with the publishing industry," said Jessica Powell, a spokeswoman in London for Google. "We currently have 10,000 sources in Google News and get contacted every day by others seeking to be included."

Powell added that the main complaints raised by the publishers in Belgium — references to their stories without prior permission and the availability of stories that the newspapers subsequently place behind a firewall — are easily rectified without recourse to legal action."

Posted by Marty at 06:32 AM | Permalink | Comments ()

Bloomberg: CitiGroup to sell umbrella logo St Paul Travelers.

The biggest U.S. bank plans to sell its red umbrella trademark to St. Paul Travelers Cos. and operate under the ``Citi'' name after failing to get most consumers to think of anything except insurance when they saw the 137-year-old symbol. The deal, announced in separate statements, reunites the Travelers name with a logo that consumers still associate with the insurer and the slogan, ``You're better off under the umbrella.''

Posted by Marty at 07:20 PM | Permalink | Comments ()

First Life bills itself as a 3D Analog World. It makes ambitious claims about the users' ability to 'work, reproduce and perish.' There does not seem to be a terms of service agreement, suggesting that users would have to rely upon the court system for intellectual property protection, a distinct disadvantage compared to, for example, Second Life.

Among the advanced features of First Life is a link at the bottom of its page labled 'Comments or Cease and Desist Letters." One user has already availed itself:

"This notice is provided on behalf of Linden Research, Inc. (“Linden Lab”), the owner of trademark, copyright and other intellectual property rights in and to the “Second Life” product and service offering, including the “eye-in-hand” logo for Second Life and the website maintained at http://secondlife.com/. It has come to our attention that the website located at http://www.getafirstlife.com/ purports to appropriate certain trade dress and marks associated with Second Life and owned by Linden Lab. That website currently includes a link in the bottom right-hand corner for “Comments or cease and desist letters.”

As you must be aware, the Copyright Act (Title 17, U.S. Code) contains provisions regarding the doctrine of “fair use” of copyrighted materials (Section 107 of the Act). Although lesser known and lesser recognized by trademark owners, the Lanham Act (Title 15, Chapter 22, U.S. Code) protecting trademarks is also limited by a judicial doctrine of fair use of trademarks. Determining whether or not a particular use constitutes fair use typically involves a multi-factor analysis that is often highly complex and frustratingly indeterminate; however a use constituting parody can be a somewhat simpler analysis, even where such parody involves a fairly extensive use of the original work.

We do not believe that reasonable people would argue as to whether the website located at http://www.getafirstlife.com/ constitutes parody – it clearly is. Linden Lab is well known among its customers and in the general business community as a company with enlightened and well-informed views regarding intellectual property rights, including the fair use doctrine, open source licensing, and other principles that support creativity and self-expression. We know parody when we see it.

Moreover, Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody. Indeed, any competent attorney is well aware that the outcome of sending a cease-and-desist letter regarding a parody is only to draw more attention to such parody, and to invite public scorn and ridicule of the humor-impaired legal counsel. Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception.

In conclusion, your invitation to submit a cease-and-desist letter is hereby rejected.
Notwithstanding the foregoing, it is possible that your use of the modified eye-in-hand logo for Second Life, even as parody, requires license from Linden Lab, especially with respect to your sale of goods with the parody mark at http://www.cafepress.com/getafirstlife/. Linden Lab hereby grants you a nonexclusive, nontransferable, nonsublicenseable, revocable, limited license to use the modified eye-in-hand logo (as displayed on http://www.getafirstlife.com/ as of January 21, 2007) to identify only your goods and/or services that are sold at http://www.cafepress.com/getafirstlife/. This license may be modified, addended, or revoked at any time by Linden Lab in its sole discretion.

Best regards,
Linden Lab

HT Jessica.

Posted by Marty at 05:09 PM | Permalink | Comments ()

Read the correspondence between Apple and ">iPodMonday while you can.

Posted by Marty at 10:29 PM | Permalink | Comments ()

We blogged about trade dress protection for the Shelby Coupe in 2003, in 2005 and now in 2007.

Posted by Marty at 10:21 PM | Permalink | Comments ()

The Hardball case's first time to the Seventh Circuit in 2003 here.

The Hardball case's second trip to the Seventh Circuit here.

Posted by Marty at 01:29 PM | Permalink | Comments ()

IHT: "Universal Music Group poised to win royalties war with Bolt.com"

"Bolt has agreed to admit that the uploads were a violation of Universal's copyrights and to pay a settlement valued at several million dollars, said Aaron Cohen, Bolt's chief executive. Bolt will also agree to pay royalties in the future any time its users submit videos that contain Universal music.

. . .

Bolt is also negotiating similar royalty arrangements with other music labels, including Warner Music Group, Cohen said.

To pay for the settlement, which will combine cash, stock and advertising credits, Bolt has agreed to sell itself to GoFish, a smaller rival, for as much as $30 million in GoFish stock."

Posted by Marty at 09:58 AM | Permalink | Comments ()

Posted by Marty at 09:13 PM | Permalink | Comments ()

You know how the NFL polices the mark SUPER BOWL, as in, a store can't say 'Your Super Bowl Party Headquarters,' because, you know, people would be confused.

So stores would say "Your Big Game Headquarters" or "Buy some snacks for your Big Game Party"?

Well, check out this pending trademark application, currently in the opposition period:

THE BIG GAME

Goods and Services IC 016 posters, calendars, trading cards, series of non-fiction books relating to football; magazines relating to football, newsletters relating to football,notepads, stickers, bumper stickers, paper pennants; greeting cards; printed tickets to sports games and events; pens and pencils, note paper, wrapping paper, paper table cloths, paper napkins, printed paper party invitations, paper gift cards; paper party decorations, collectible cards; collectible card and memorabilia holders, souvenir programs for sports events

IC 028. toys and sporting goods, namely, plush toys, stuffed toy animals, play figures, golf balls, footballs, sport balls, toy banks, playing cards, Christmas tree ornaments

Standard Characters Claimed

Serial Number 78804122

Filing Date February 1, 2006

Original Filing Basis 1B

Published for Opposition January 23, 2007

Owner (APPLICANT) NFL Properties LLC LTD LIAB CO DELAWARE 280 Park Avenue New York NEW YORK 10017

Attorney of Record Paula M. Guibault

Word Mark THE BIG GAME

Goods and Services: Men's, women's and children's apparel, namely T-shirts, fleece tops, caps, headwear

IC 041. Entertainment services in the nature of football exhibitions; providing sports and entertainment information via a global computer network or a commercial on-line service

Serial Number 78803677

Filing Date January 31, 2006

Current Filing Basis 1B
Original Filing Basis 1B

Published for Opposition January 23, 2007

Owner (APPLICANT) NFL Properties LLC LTD LIAB CO DELAWARE 280 Park Avemue New York NEW YORK 10017

Attorney of Record Paula M. Guibault

Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "GAME" APART FROM THE MARK AS SHOWN

Posted by Marty at 05:39 PM | Permalink | Comments ()

Our Firm recently represented an IP owner who alleged that goods sold
by defendant infringed its rights. A complaint was
filed in federal court. The matter was ultimately settled on
favorable terms.

A matter such as this is amendable to being handled on a 'hybrid' billing basis. In such an
arrangement, representation is on a contingent recovery basis,
however the initial work is billed on an attorney/time basis. After
a billing threshold is reached, the parties can then re-negotiate the
billing arrangement (typically at a point by which discovery has
begun, and therefore the parties have more information on which to
base decisions as to the likelihood and scope of a financial recovery).

The advantage to a client of such an arrangement is that it can
control its litigation expenses while exploring the strength of its
claim. The advantage to the outside firm is that it can moderate the
risk involved in undertaking a contingent fee arrangement.

If you are an IP Owner and have questions regarding such arrangements, please contact us.

Posted by Marty at 11:28 AM | Permalink | Comments ()

MIT Ad Lab: The advent of Internet-based flight tracking technology enables an entirely new kind of skywriting. Gulfstream Aerospace sent up one of their $50M business jets today on an 8.5-hour test flight spanning 11 states for the sole purpose of leaving their mark on the Net in the form of a flight track that spells out 'GV' (the nickname of the Gulfstream V aircraft being flown) when viewed online."

Posted by Marty at 09:23 AM | Permalink | Comments ()

CBS4Denver: "Makers Of Enviga Drink Face False Advertising Suit": Health watchdog group sues makers of ENVIGA drink for negative calorie claim for green tea extract/caffeinated beverage.

Posted by Marty at 10:58 PM | Permalink | Comments ()

How Bill Gates feels about these ads.

Posted by Marty at 10:27 PM | Permalink | Comments ()

BlackBerry and BlackJack, now Blackjack, settled.

Posted by Marty at 10:16 PM | Permalink | Comments ()

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Posted by Marty at 01:16 PM | Permalink | Comments ()

David Pecker is the chairman of American Media, Inc., publisher of, among others, National Enquirer and Weekly World News. 'Mr. Ferris' registered the domain name DAVIDPECKER.COM, had a PPC company host it, where it was keyed to ads for porn, because, according to the registrant, the word PECKER was in the domain name. Mr. Pecker brought a UDRP.

Although 'Mr. Ferris' (as he is identified in the decision) did not seem (to me) that he could establish a bona fide intent to use the name in conenction with an offering of goods or services, and altohugh there seemed to be plausible evidence of bad faith, the UDRP was denied. Complainant could not establish rights in his name as a trademark:

" A number of disputes under the Policy have involved personal names, as here, and the panels’ decisions have been mixed on the issue of whether the complainants have rights in the names. See, e.g., Tom Cruise v. Network Operations Center / Alberta Hot Rods, WIPO Case No. D2006-0560 (finding common law rights in “Tom Cruise”); and The Reverend Dr. Jerry Falwell and The Liberty Alliance v. Gary Cohn, Prolife.net, and God.info, WIPO Case No. D2002-0184 (finding no rights in “Jerry Falwell”).

Indeed, the issue of rights in personal names has generated enough cases and raised enough questions that the matter has been addressed by the “WIPO Overview of WIPO Panel Views on Selected UDRP Questions”, which states: “While the UDRP does not specifically protect personal names, in situations where an unregistered personal name is being used for trade or commerce, the complainant can establish common law trademark rights in the name.” “WIPO Overview of WIPO Panel Views on Selected UDRP Questions”, paragraph 1.6, “http://arbiter.wipo.int/domains/search/overview/index.html” (visited January 15, 2007).

. . .

In this case, Complainant has provided no evidence of his rights in the Disputed Domain Name other than broad assertions that he “is known nationally and internationally by the name David Pecker and his high profile name is linked inextricably with AMI and is cited frequently by the media”, and an affidavit from AMI’s assistant general counsel that Complainant “possesses a strong common law service mark in his name by virtue of his position as being one of the leaders in the publishing industry… David Pecker’s personal fame and reputation have caused his name, as a leader in the publishing industry and as Chairman and CEO of AMI, to acquire a secondary meaning in the industry. Complainant’s name is used to promote AMI and the public understands his name as referring to AMI”. While these statements may well be true, it is nevertheless incumbent on a complainant, except in the most obvious cases, to provide evidence in support of a claim to rights in a personal name for the purposes of the Policy. . . . It is also unclear to the Panel on the evidence provided whether, as required by the Policy in such cases, Mr. Pecker “has ever used his personal name for the purpose of advertising or promoting his business or for the sale of any goods or services”. Joacim Bruus-Jensen v. John Adamsen, WIPO Case No. D2004-0458.

. . .

In light of the above, the Panel is not convinced, based on the limited record before it, that Complainant has established rights in the name “David Pecker” for the purpose of this proceeding. Therefore, the Panel finds that Complainant has not succeeded in proving the first element of the Policy.

[HOWEVER]

Complainant’s lack of success in this proceeding in proving its rights in the name “David Pecker” does not necessarily mean that Complainant has no remedy. “He may have claims under the Anticybersquatting Consumer Protection Act (‘ACPA’), which expressly provides for protection of personal names, or perhaps his actions lie in tort. Complainant is free to pursue his claims in U.S. courts.” The Reverend Dr. Jerry Falwell and The Liberty Alliance v. Gary Cohn, Prolife.net, and God.info, WIPO Case No. D2002-0184.

Note: Complainant has indicated he is considering an ACPA proceeding.

Comment: Entertainers usually fare better in UDRPs than well-known executives, as it tends to be easer for them to show, in the absence of a registration, that their names function as common law trademarks for the entertainment services they provide. That should be some comfort for PETER O'TOOLE.

Posted by Marty at 12:51 PM | Permalink | Comments ()

New TeeVee: Legend of Bridezilla: You Can't Own a YouTube Hit (discussing multiple claims of ownership, copying and unauthorized sale of videos on YouTube).

Posted by Marty at 10:23 AM | Permalink | Comments ()

Reuters: Pfizer appeals against Viagra trademark ruling in China:

"Pfizer Inc. has filed an appeal after losing a lawsuit over the Chinese name for its impotence treatment Viagra, the U.S. drugmaker said in a statement on Wednesday.

Pfizer, the world's largest drugmaker, sued a Chinese firm over its usage of the brand "Wei Ge" or "Mighty Brother" in November 2005, but lost the case last month, Pfizer said."

While Pfizer markets the anti-impotence pill as Wan Ai Ke in China, it is commonly called Wei Ge by the public (via BBC).

Posted by Marty at 10:13 AM | Permalink | Comments ()

Steve Jobs: Thoughts on Music

"So if the music companies are selling over 90 percent of their music DRM-free, what benefits do they get from selling the remaining small percentage of their music encumbered with a DRM system? There appear to be none. If anything, the technical expertise and overhead required to create, operate and update a DRM system has limited the number of participants selling DRM protected music. If such requirements were removed, the music industry might experience an influx of new companies willing to invest in innovative new stores and players. This can only be seen as a positive by the music companies."

Posted by Marty at 10:49 PM | Permalink | Comments ()

DirecTV ran ads promoting its satellite TV service featuring William Shatner in one ad and Jessica Simpson in another (Shatner clip and background here). In the Simpson ad, the claim is made that DirecTV provides the best picutrem and the narrator states ". . .For an HD Picture that can't be beat, get DirecTV." Time Warner sued in the Southern District of New York in December, arguing that because the HD quality of both cable and satellite HD service is equivalent, the claim that DirecTV's picture is the best, is literally false. DirecTV argued that the claim that the picture was the 'best' referred to the signal for all channels, including non-HD ones.

Held: Viewing the commercial in its entirety, the claim that the picture was the 'best' had to be interpreted in the context that the entire ad focuses exclusively on HD channels, and therefore the claim that the picture was the 'best' was literally false. The commercials were enjoined.

Time Warner Cable, Inc. v. DirecTV, 06-CV-14245 (SDNY Feb 5, 2007) (Swain, J). Email me for a copy of the order (too large to upload).

Posted by Marty at 03:05 PM | Permalink | Comments ()

SD PETOSEVIC: "Fake NIKE Destroyed In Serbia."

"According to the Customs Authorities, one of the major obstacles to destruction was the lack of suitable facilities in Serbia for destroying plastics, rubbers and other similar materials in an environmentally friendly way . . . 13,000 pairs of counterfeit running shoes, bearing the trademarks of NIKE and DEISEL, were destroyed in one day at the State waste facilities. Instead of burning the running shoes, as was done in other countries, the shoes were cut into small pieces by a large machine used for destroying tires. The method had the approval of the Serbian Ministry of Environment, as is required under the law."

English translation of Serbia's Trademark Law.

Posted by Marty at 11:47 AM | Permalink | Comments ()

Thompkins v. Lil' Joe Records, 05-10143 (11th Cir. Feb. 5 2007):

"This appeal requires us to consider what happens when a debtor-in-
possession in a Chapter 11 bankruptcy case, who negotiated the purchase of
copyrights prior to the bankruptcy proceeding, later uses the bankruptcy code to
reject those contracts that transferred ownership of the copyrights to the debtor.
Our resolution of that question determines the outcome of much of this suit by a
rap artist who created the works giving rise to the copyrights in question. The
artist sold copyrights in his works to a music recording company in exchange for a
recording contract that entitled the artist to future royalties. The recording
company later went bankrupt, becoming the debtor-in-possession. In confirming
the debtor’s reorganization plan, the bankruptcy court ordered that all of the
debtor’s contracts with the artist be rejected under the bankruptcy code and the
copyrights sold to a rival recording company and its owner, two of the defendants
in the instant case.

Years later, the artist sued the defendants, alleging that they did not actually
gain ownership of the copyrights through the bankruptcy, or if they did, they now
owe him royalties. Based on that premise, the artist asserts numerous claims
sounding in federal and state law. The district court granted summary judgment in
favor of the defendants on all claims, and for the reasons set forth below, we
affirm. "

Rationale: Pre-bankruptcy rejection of the copyright assignment by the debtor as an 'executory contract' (one that had not been completely executed) does not act as a recission of the contract (which would have returned ownership of the copyright to the creditor), but instead is merely a breach by the debtor, and the payments owing under the assignment, become an unsecured claim.

UPDATE: Prof Patry: 2 Live Bankrupt.

Posted by Marty at 11:12 AM | Permalink | Comments ()

American Association of Advertising Agencies White Paper: "Best Practice Guidance: Ownership of Agency Ideas, Plans and Work Developed During the New Business Procedure."

Ad Age coverage of white paper here.

Posted by Marty at 07:56 AM | Permalink | Comments ()

NY Times on Super Bowl Ads: A study from FKF showed that the many Super Bowl commercials with violent imagery generated reactions in regions of the brain associated with anxiety, Mr. Freedman said, including the amygdala, which he characterized as the “threat detector,” and as a result they generated “no connection, engagement or appeal” with viewers . . .

By comparison, only a few spots fired the brain regions associated with positive emotions, Mr. Freedman said, which he termed unusual in that advertisers typically seek to stimulate responses in those areas . . .

Among the positive commercials, Mr. Freedman listed the “Live the Flavor” commercial for Doritos and a light-hearted spot by Wieden & Kennedy for Coca-Cola Classic, sold by the Coca-Cola Company, which spoofed violent video games."

Posted by Marty at 07:16 AM | Permalink | Comments ()

Reel Pop: "A Brief guide to Online Video Lawsuits" (collection of information on litigation against the major video-sharing sites. Details on lawsuits and subpoenas against Veoh, Bolt, Grouper, YouTube, Google Video and MySpace.

Posted by Marty at 10:53 PM | Permalink | Comments ()

NewTeeVee: 'YouTube Should Call Viacom's Bluff'

Mark Cuban: 'Gootube Terrorizes Copyright Owners by Withholding Filters' (in which he advocates the uploading of porn to YouTube to test its filtering abilities.

Reel Pop: "YouTube's inability to remove copyrighted clips could get it sued" (in which it monitors Google's progress in removing Viacom clips).

Posted by Marty at 10:41 PM | Permalink | Comments ()

Bloomberg: Apple Ends Dispute With Beatles Over Trademarks

In 2003, I wrote here:

"In 1989 Apple Computer paid Apple Corps. (the Beatles' label) $27 million to settle a trademark lawsuit. I believe that Apple also paid several million in legal fees at the time (Apple's unsuccessful attempt at getting insurance to pay its fees reported here). Without seeing the 1989 settlement agreement, I can't comment on the somewhat surprising news that Apple Computer launched its new iTunes service without assurance that Apple Corps. wouldn't sue again. It has . . . This makes Apple Computer look like a repeat offender."

Posted by Marty at 09:45 AM | Permalink | Comments ()

Info/Law analyzes the question as to whether a Church can host a Super Bowl party, utilizing a 70" TV, and concludes "yes, assuming the Church does not charge admission."

Posted by Marty at 07:55 PM | Permalink | Comments ()

After I posted about the THE OTHER WHITE MEAT demand letter below, I was going to pose a question to the readership: what are the risks in sending dilution-based demand letters? In view of the rapid take-up of this story on the web, one answer seems to be: Don't send a demand letter to a blogger if the subject matter is breasts, as they make for good copy.

However another issue, raised in one of the forums blasting the Pork Board, caught my eye. It seems that the US Government, through the National Pork Board, owns the PORK, THE OTHER WHITE MEAT trademark, and that they are paying $3 million a year for twenty years, to the private pork trade group, which apparently developed the mark.

The National Pork Board appears to be funded by a 'pork check-off,' a payment made by pork producers. Which raises more questions:

Is paying $60 million for the trademark a method of refunding the pork check-off to the pork producers?

Who pays for the PORK, THE OTHER WHITE MEAT ad campaign?

Who pays for the demand letter sent to the breast-feeding website?

The slogan "THE OTHER WHITE MEAT" seems, on its face, not to merely encourage an increase in consumption, as the GOT MILK? campaign does. It seems to encourage substitution of pork for other forms of white meat protein, presumably chicken and turkey. Assuming that pork, when eaten in moderation, is as healthful as chicken and turkey (and that might not be a reasonable assumption), should a government agency levy producer taxes to promote product substitution (as opposed to merely promote increased per capita consumption).

I'm not familiar with the use of trademarks for 'check-off' programs so more information, resources, views, will be appreciated.

Posted by Marty at 12:56 PM | Permalink | Comments ()

Reuters: Viacom demands YouTube pull down videos:

"Viacom Inc. (VIAb.N: Quote, Profile , Research) has demanded that Google Inc.'s online video service YouTube pull down all of its video clips after they failed to reach an agreement, the company said.

About 100,000 video clips from Viacom-owned properties including MTV Networks and BET has been asked to be removed (sic).

Viacom said its pirated programs on YouTube generate about 1.2 billion video streams, based on a study from an outside consultant"

UPDATE: Well, that was fast. Google is taking down the Viacom videos from YouTube. Says a YouTube spokesperson:

"It's unfortunate that Viacom will no longer be able to benefit from YouTube's passionate audience, which has helped to promote many of Viacom's shows,"

Aside: Can you imagine the expense in having to prove ownership of 100,000 videos? Can you imagine having to pay damages for 100,000 acts of infringement?

Posted by Marty at 12:31 PM | Permalink | Comments ()

Improper combination of milk and meat here (Use of The OTHER WHITE MILK by breat-feeding activist, protested by Pork trade association, owner of THE OTHER WHITE MEAT). Demand letter from Pork Board here.

Improper combination of the kosher symbol and porn, here.

Competing kosher symbols here.

God Hates Shrimp website here.

Posted by Marty at 08:29 PM | Permalink | Comments ()

NewTeeVee: "YouTube, MySpace Face European Copyright Clash":

"Collective licensing organizations throughout the continent have been demanding compliance in recent months, seeking their share of the potential billions generated by online video. At the forefront of this movement is GEMA – a German organization that now now has its sights on YouTube and MySpace."

Posted by Marty at 02:22 PM | Permalink | Comments ()

Law.com: IP'S Brave New World - Discussion of SecondLife's IP policy and attempts at dispute resolution.

Slashdot: "EBay Delisting All Auctions For Virtual Property." ("Given the nebulous nature of ownership in online games, eBay has decided the prudent decision is to remove the possibility for players to sell what might be the IP of other parties via their service. ")

Posted by Marty at 12:32 PM | Permalink | Comments ()