Chanel-Style Bracelets?
Counterfeit Chic and the case of the scrimshaw bracelets.
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March 31, 2007
March 29, 2007
Utah Electronic Registration Mark?
Utah invents the electronic registration mark.
Utah General Counsel is reminded of the dormant commerce clause:
As required by legislative rule and practice, the Office of Legislative Research and General Counsel provides the following legislative review note to assist the Legislature in making its own determination as to the constitutionality of the bill. The note is based on an analysis of relevant state and federal constitutional law as applied to the bill. The note is not written for the purpose of influencing whether the bill should become law, but is written to provide information relevant to legislators' consideration of this bill. The note is not a substitute for the judgment of the judiciary, which has authority to determine the constitutionality of a law in the context of a specific case.
This legislation allows the registration of an electronic mark that would prohibit the triggering of an advertisement for a competitor. The most prominent application for this type of mark is the use of user-entered search terms in an Internet search engine to trigger advertisements. These triggered advertisements are often advertisements for a competitor of an entity whose name is entered in the search engine by a potential customer. Because of the potential impact on interstate commerce from the state's regulation of electronic registration mark use on Internet search engines, this legislation has a high probability of being held to be unconstitutional.
The Commerce Clause to the United States Constitution provides that Congress has the power to regulate interstate commerce. (U.S. Const. art. I, sec. 8). This provision also has a "dormant" aspect that "prohibits state . . . regulation that discriminates against or unduly burdens interstate commerce." General Motors Corp. v. Tracy, 519 U.S. 278, 287 (1997) (Citations omitted). Although the dormant aspect of the Commerce Clause is not implicated when Congress has delegated its power to regulate in an area to the states, that delegation "must be either 'expressly stated' or 'made unmistakably clear.'" New York State Dairy Foods, Inc. v. Northeast Dairy Compact Comm'n, 198 F.3d 1, 20 (citations omitted). Further, this delegation must be specific to that state action challenged. See Ind. Community Bankers Ass'n v. Bd. of Comm'rs of the Fed. Reserve Sys., 838 F.2d 969, 973-77 (8th Cir. 1988) (holding that although Congress authorized states to allow a bank's acquisition by out-of-state entity, Congress did not authorize restrictions on acquired banks).
In the context of this legislation, there has been no specific delegation by Congress of the authority to regulate the type of Internet advertising that this legislation targets, whether triggered by an electronic registration mark or any other method. Thus, the dormant Commerce Clause is implicated and the legislation will be analyzed to determine whether it places a burden on interstate commerce that outweighs the state's benefit. ACLU v. Johnson, 194 F.3d 1149, 1161 (10th Cir. 1999).
This legislation applies to an electronic mark registered in Utah that is used to trigger an advertisement if the advertisement is delivered in Utah or if the advertiser or person selling the advertisement is located in Utah. A large Internet search engine must first determine whether a user is located within Utah. If the user is in Utah, the Internet search engine must check search terms against Utah's registry of trademarks to prevent the unlawful triggering of advertising. Literally millions of search requests from locations worldwide each day would be subject to verification of location. Once verified, the search engine would then use a separate process for delivering advertising to Utah. This results in multiple systems of advertisement for a search engine to manage.
It is plausible that a search engine might merely decide to check all searches against the state's registry to avoid the need to ascertain the location of each user. This would be strong evidence of the magnitude of the burden of verifying the location of each user and of the interstate impact of this legislation. See, e.g., Id. (stating "the nature of the Internet forecloses the argument that [the statute] applies only to intrastate communications."). Whether deciding to verify a user's location or to merely check the registry with each search, any benefit to the state from this legislation is likely substantially outweighed by the burden on every Internet search engine or similar system to re- engineer its systems and constantly check the search terms or the location of a user. This is likely the case even with advances in technology that make it easier to determine a user's location.
In ACLU v. Johnson, the Tenth Circuit U.S. Court of Appeals held that a New Mexico statute that prohibited the dissemination of material harmful to minors by computer violated the Commerce Clause because it applied to material that was being disseminated over the Internet. Id. at 1152, 1161-63. This legislation is not dissimilar from the laws struck down in ACLU v. Johnson, in that it has the effect of requiring entities outside of Utah to verify the location of a user or ensure that all content complies with Utah law. Additionally, the benefit to the state from this legislation is likely less than in ACLU v. Johnson, which dealt with the protection of minors from pornography. Thus, in addition to regulating conduct outside of Utah, this legislation also likely provides a benefit that is substantially outweighed by the burdens on interstate commerce. For these reasons, this legislation has a high probability of being held to be unconstitutional.
Office of Legislative Research and General Counsel
March 28, 2007
Bruce Lehman: "Our Attempts At Copyright Control Have Not Been Successful"
MichaelGeist.ca: "DMCA Architect Acknowledges Need For A New Approach": (Former head of the Patent and Trademark Office, Bruce Lehman, influential in the creation of the DMCA, during a panel conference (available on video):
". . . Lehman says that we are entering the "post-copyright" era for music, suggesting that a new form of patronage will emerge with support coming from industries that require music (webcasters, satellite radio) and government funding. While he says that teens have lost respect for copyright, he lays much of the blame at the feet of the recording industry for their failure to adapt to the online marketplace in the mid-1990s."
I Would Not Mind If Martha Stewart Used ARMONK As A Trademark
TMBrandingCap.com reports that the village of Katonah (about ten miles from here) and at least one housewares business within Katonah, will take action against local resident Martha Stewart's applications for the mark KATONAH for housewares. Background here.
I wouldn't mind if Martha Stewart used my home town's name as a trademark. If the product wasn't junk, it could help property values.
McDonald's Seeks To Redefine 'McJobs'
AP: 'McDonald's Seeks To Redefine 'McJobs':
"McDonald's Corp. is reviving its campaign to ditch the dictionary definition of "McJob," this time setting its sites on the vocabulary of Britons. The world's largest fast food company said Tuesday it plans to launch a campaign in the U.K. this spring to get the country's dictionary houses to change current references to the word "McJob.""
March 25, 2007
Dog Bites Man
If It Weren't For Those Meddling Kids, Vitamin C Edition
TVNZ: "Thirst For Knowledge Leads To Court":
"Two Auckland schoolgirls have taken on one of the world's most powerful food and drug companies and won.
A school science experiment has led to GlaxoSmithKline being prosecuted for allegedly misleading consumers about the vitamin c content of Ribena."
March 23, 2007
"The American Girl Doll Racket"
The Conglomerate: "I Can't Believe I'm Defending the American Girl Doll Racket":
". . . a young girl on a playdate took her Target knock-off of an American Girl doll to the Manhattan American Girl doll store and was refused the $20 hair salon experience for her nonconforming doll."
Starz Sues Disney Over Movie Downloads
News.com: "Starz Sues Disney Over Movie Downloads":
"Liberty Media Holding's Starz Entertainment cable network said on Thursday it is suing a unit of Walt Disney for allowing other movie download services to sell titles while they were exclusively licensed to Starz.
The lawsuit, filed in U.S. District Court in Los Angeles, was brought by Starz against Disney's Buena Vista Television, which this year signed deals to sell movies on Apple's iTunes online store and Wal-Mart Stores' new movie download site."
HT BNA Internet Law News.
"Music Publishers Sue XM Over Digital Copying"
Hollywood Reporter: "Music Publishers Sue XM Over Digital Copying":
"The suit, filed in federal court in New York by the National Music Publishers Assn., alleges that XM engages in massive copyright infringement through its subscription digital music download service known as XM + MP3.
According to the NMPA, the suit was filed after months of discussions between NMPA and XM regarding the satellite radio company's obligation to compensate creators fairly for the songs it distributes."
HT BNA Reporter
"Viacom Sued Over Colbert Parody on YouTube"
News.com: "Viacom Sued Over Colbert Parody on YouTube":
"Viacom is misusing U.S. copyright law by forcing YouTube to remove a parody video of The Colbert Report, according to a lawsuit filed against the media conglomerate Thursday. However, Viacom denies the accusation and said it does not object to the video being on YouTube."
March 21, 2007
Zombie Brands
PagRank Lawsuit Against Google Dismissed
43(B)log: "KinderStart v. Google dismissed" (Google assigned page rank of zero to plaintiff's site).
Parody of Political Discourse
I Have The Face For Radio, continued
I participated in a podcast regarding the iPhone dispute (prior to its being settled) on the belatedly named This Week In Law with Denise Howell.
March 20, 2007
"A Gala Tribute to Global Copycats"
Naseem Javed (branding consultant): "A Gala Tribute to Global Copycats"
March 19, 2007
Egypt: SCOTCH Whiskey v. SCOTTS Whiskey
March 16, 2007
The "OSCAR in Italian" Decision Is A Pretty Significant Decision
I would imagine that the amicus committee at INTA has already been notified on this one. RAI, an Italian broadcaster's distributed (by satellite) into the U.S. award shows using the word OSCAR in the title such as the WINE OSCARS. The Academy sued RAI in Los Angeles. RAI defeated a summary judgment motion, creating an issue of fact as to whether the word OSCAR is generic for award in Italian.
From RAI's law firm press release:
Luce Forward received a favorable ruling for its broadcaster client on a summary judgment motion filed by the Academy of Motion Picture Arts and Sciences (Academy). The claim filed by the Academy arose from the alleged broadcast on the RAI International channel of Italian speaking award programs that contained the word “oscar” in their titles.
Los Angeles Judge Audrey Collins questioned the Academy’s right to prevent a producer or broadcaster of Italian language programming in the United States from using the word oscar in a program title which is intended for Italians living abroad in the U.S., and noted that there is evidence that the word “oscar” is a common word for an award in the Italian language.
In her ruling, Judge Collins wrote, “[the broadcaster] has raised a significant issue of fact regarding the distinctiveness of Plaintiff’s OSCAR mark among viewers of RAI International. [The broadcaster’s] evidence reveals that RAI International is broadcasted in the Italian language and is aimed at Italians living abroad. [The broadcaster’s] evidence also suggests that the word “oscar” in Italian can be generic for an award.”
Judge Collins added, “If the viewers of RAI International perceive the word “oscar” as being a generic term for an award when used in the Italian language, then the Italian award programs using the word “oscar” may not even bring about a mental association with the Plaintiff’s OSCAR mark.”
“We believe Judge Collins’ decision is significant because it recognizes that words have different meanings in different languages, and that the use of a word in a foreign language that has become generic in such foreign language does not infringe a trademark in the English language where the viewers of such programming understand such word in its generic sense.,” said Luce Forward Partner Kathy A. Jorrie, who led the legal team representing the broadcaster defendant. “In other words, in our case, because ‘oscar’ means ‘award’ in the Italian language, it is not likely that an Italian viewer would confuse Italian titles such as ‘Oscar del Vino’ (which means the ‘Wine Award’ in Italian) or ‘La Kore – Oscar della Moda’ (which means the ‘La Kore Fashion Award’ in Italian) to have any connection with the Academy of Motion Pictures & Sciences simply because of the inclusion of the word ‘oscar’ in the titles of such foreign language programs.”
"Not Reverse Domain Name Hijacking To Bring ACPA Case For Expired Domain"
What Should We Do In Chicago for INTA?
Go to a blues club? Hire a DJ? What?
Insurer Required to Defend Alleged Counterfeiter
Leora Hermann: "Insurer Required to Defend Alleged Counterfeiter"
Sex, Gender and Fair Use
Yeah, That'll Happen
March 15, 2007
Zsa Zsa Gabor's Husband Sues Bill O'Reilly
Who can not click on the headline "Zsa Zsa Gabor's husband sues Bill O'Reilly"?
Starbucks/Ethiopia Trademark Dispute - on YouTube
The botom video was made by a Starbucks representative and the top video is from Arnold and Porter, which represents the Ethiopian government.
A Law.com article discussing the dispute is here.
The trademark issue (as opposed to the overall business issue) is that Ethiopia filed for standard trademark, as opposed to certification mark, protection for the names of several coffee-growing regions in Ethiopia. Here's the most recent office action in Ethiopia's HARRAR application.
If a region's name has commercial value, as is the case here, then it is to the benefit of the merchants in that region that a single entity is motivated to protect that name - so some sort of protection is needed.
However, as the Law.com article states, the general consensus is that GIs are preferable to standard trademarks. I agree with both parts of that statement - GIs are preferable and it is the general consensus that they are preferable.
Ethiopia's U.S. lawyer states that the Ethiopian government does not prefer GIs because it would have less control over the marketing and sale of the coffee, and that would result in lower prices for the producers. It's true that Ethiopia would have less control and the speculation that that would result in lower prices for growers is plausible. But that might not be the only consideration.
In the U.S., a merchant that complies with the articulated standards for a certification mark, can use the mark. Thus, in theory, different growers from a region can use the name to indicate origin, and act independently of each other and cut its own deals.
As for a standard trademark, the trademark owner can prohibit any third party from using the mark. Thus the growers can be cartilized by the trademark owner, which can be a good or bad thing (probably both). In this case, growers in a particular region could lose the right to accurately indicate where their product comes from, if they do not have authorization from the trademark owner. This is scenario contravenes the policy behind the prohibition of the registration of geographical names as trademarks.
Again, this post deliberately does not address the 'fairness' issue of Starbucks' economic relationship with Ethiopian coffee growers.
Background (with link to PTO materials on geographical indicators) here.
March 14, 2007
Profile Of A Gumshoe
New Yorker (march 19, 2007): "Bag Man" (Profile of Harley Lewin, head of trademarks at Greenberg Traurig) (no online version). Harley's proficiency with John Doe orders (honed while representing rock bands going against t-shirt counterfeitors) led to his being retained by Reebok, and the rest is history.
Microsoft Press Release on Cybersquatting Intiatives
Text of Microsoft press release on cybersquatting initiatives:
LONDON, and REDMOND, Wash. — March 14, 2007 — Microsoft Corp. today announced new legal actions against cybersquatters in the United Kingdom and the United States, which include expansion of a lawsuit filed in Seattle in August and the filing of a new federal lawsuit against the U.S. company Maltuzi LLC for trademark infringement. In addition to these new actions, Microsoft revealed it has settled a domain infringement settlement with the Dyslexic Domain Company Limited from the United Kingdom and two U.S. civil lawsuits filed against defendants in Salt Lake City and Los Angeles.
Cybersquatters register Internet domain names (such as winowslivemessenger.com and www.micr0soft.co.uk) containing not only widely recognized trademarked names and brands but also misspelled variations of them, which often result in tricking unsuspecting computer users and illegally profiting from them through online ad networks. Screens filled with pay-per-click advertisements greet visitors to these Web sites, which can generate revenue for the registered domain owner and the online ad network. Microsoft has reclaimed more than 1,100 infringing domain names worldwide in the past six months with the help of Microsoft researchers led by Yi-Min Wang, who has played a major role in the company’s efforts to combat cybersquatting.
“These sites confuse visitors who are trying to reach genuine company Web sites, which can negatively affect corporate brands and reputations as well as impair the end-users’ experience online,” said Aaron Kornblum, senior attorney with Microsoft. “With every ad hyperlink clicked, a registrant or ad network harvests cash at the trademark owner’s expense, while derailing legitimate efforts by computer users who are trying to go to a specific Web site.”
Microsoft is also investigating potential violations of intellectual property law in other nations. “We hope that our stance and activity on this issue will help motivate and empower other companies whose brands are abused to take action,” Kornblum said.
U.S.: New and Amended Actions
Microsoft has filed or amended four civil suits in the United States:
•
Microsoft Corp. v. Maltuzi LLC, Case No. C07-1419 (N.D. California). Microsoft alleges that the California company has profited from domain names that infringe on Microsoft® trademarks. Microsoft further alleges that Maltuzi is a large-scale “domain taster” that registers large blocks of domain names, some of which infringe on Microsoft’s intellectual property rights, that it either retains or “drops.”
•
Microsoft Corp. v. Sule Garba, Darin Grabowski and Yi Ning, Case No. 06-1192RSM (W.D. Wash.). Microsoft has amended a civil lawsuit filed in August 2006 in federal district court in Seattle against the owners of 217 infringing domain names who masked their true registration information behind privacy protection shields. In the lawsuit, Microsoft originally named John Doe defendants 1–217 (a legal technique that permits further investigation to uncover actual identities), and has now successfully identified the owners of all 217 domains. Today, Microsoft is amending that complaint to name three defendants who collectively are alleged to have owned at least 135 infringing domain names.
•
Microsoft Corp. v. John Does 1–54, Case No. 07-2-08568-8 SEA (King County Superior Court, Washington). Microsoft has filed a civil lawsuit in state court in Seattle against John Doe defendants 1–54 to unmask defendants hiding their identities.
•
Microsoft Corp. v. John Does 1–105, Case No. C06-1766JLR (W.D. Washington). In December 2006, Microsoft filed a civil lawsuit in federal district court in Seattle to identify defendants who have allegedly registered infringing domain names and “parked” them by associating them with online ad network monetization services. The case is pending.
New and Settled Actions in the United Kingdom
Microsoft has conducted five new legal actions in the U.K. against companies allegedly having registered domain names infringing on Microsoft’s trademark and other statutory and common-law rights. In addition to these actions, Microsoft reached a settlement with U.K.-based Dyslexic Domain Company Limited, which Microsoft alleged had registered more than 6,000 domains. In addition to a monetary payment to Microsoft, Dyslexic Domain Company Limited agreed to other confidential settlement terms.
U.S.: Civil Lawsuits in Utah and California
Microsoft has also settled two federal civil lawsuits filed in August 2006 against five named defendants who allegedly profited from domain names that infringed on Microsoft trademarks:
•
Microsoft Corp. v. Cox et al: Case No. 2:06cv00692 TS. Microsoft filed this case in Salt Lake City, alleging that the defendants and their businesses had registered 324 domain names targeting Microsoft. The settlement ends the litigation with a stipulated order for permanent injunction against all defendants, a $2 million judgment as to defendants Jason Cox of New Mexico and Newtonarch LLC, the Utah-based business of the remaining individual defendants, and other confidential terms.
•
Microsoft Corp. v. Brown: Case No. cv06-5247R. Microsoft filed this case in Los Angeles, alleging that the defendant had registered 85 domain names targeting Microsoft. The settlement ends the litigation with a stipulated order for permanent injunction and a $1 million judgment as to defendant Dan Brown of California dba Partner IV Holdings, and other confidential terms."
March 13, 2007
Release the Hounds
Brietbart.com: "Dogs Used to Tackle Movie, Music Piracy."
Text of Complaint in Viacom v. YouTube
Coutesy WSJ Online, text of Viacom v YouTube complaint here.
I wonder what's the highest damages demand ever in a copyright case. UPDATE: $1.65 trillion. Why not ask for a gazillion dollars?
MORE UPDATE: Google Watch highlights 18 arguments in Viacom's complaint.
BuzzMachine makes an interesting point about the benefit of authorized videos on YouTube.
Viacom Sues YouTube
Viacom Press Release:
NEW YORK, March 13 /PRNewswire-FirstCall/ -- Viacom Inc. (NYSE: VIA and
VIA.B) today announced that it has sued YouTube and Google in U.S. District
Court for the Southern District of New York for massive intentional
copyright infringement of Viacom's entertainment properties. The suit seeks
more than $1 billion in damages, as well as an injunction prohibiting
Google and YouTube from further copyright infringement. The complaint
contends that almost 160,000 unauthorized clips of Viacom's programming
have been available on YouTube and that these clips had been viewed more
than 1.5 billion times.
In connection with the filing, Viacom released the following statement:
"YouTube is a significant, for-profit organization that has built a
lucrative business out of exploiting the devotion of fans to others'
creative works in order to enrich itself and its corporate parent
Google. Their business model, which is based on building traffic and
selling advertising off of unlicensed content, is clearly illegal and is
in obvious conflict with copyright laws. In fact, YouTube's strategy
has been to avoid taking proactive steps to curtail the infringement on
its site, thus generating significant traffic and revenues for itself
while shifting the entire burden - and high cost - of monitoring YouTube
onto the victims of its infringement.
This behavior stands in stark contrast to the actions of other
significant distributors, who have recognized the fair value of
entertainment content and have concluded agreements to make content
legally available to their customers around the world.
There is no question that YouTube and Google are continuing to take the
fruit of our efforts without permission and destroying enormous value in
the process. This is value that rightfully belongs to the writers,
directors and talent who create it and companies like Viacom that have
invested to make possible this innovation and creativity.
After a great deal of unproductive negotiation, and remedial efforts by
ourselves and other copyright holders, YouTube continues in its unlawful
business model. Therefore, we must turn to the courts to prevent Google
and YouTube from continuing to steal value from artists and to obtain
compensation for the significant damage they have caused."
March 11, 2007
Deja Vu All Over Again
"Edison was adamant that Edison recordings would be played only on Edison phonographs. His competitors, Victor and Columbia, shared the same playback technique, etching a laterally cut groove that sent the needle moving horizontally as the record played. Their recordings could be played on one another’s machines. Edison, however, adopted his own design, a groove that varied vertically, called at the time a “hill and dale” cut. An adapter permitted Victor records to be played on an Edison Disc Phonograph, but Edison forbade the sale of an attachment that permitted his records to be played on competitors’ machines."
From "Edison the Inventor, Edison the Showman" - The New York Times.
March 10, 2007
Network Solutions Purchased By Private Equity Frim
Biz.Yahoo.com: "Network Solutions Annonces Ownership Change" (General Atlantic Partners purchase NetSol from Pivotal Private Equity).
March 09, 2007
And I'm Sitting Here On Capitol Hill
Let me anticipate two questions.
C-Span is not a government entity, but a not-for-profit consortium backed by the cable industry, and, all other things being equal, can own and assert copyright.
Second, a congressperson showing a bit of C-Span footage of a congressional hearing on the congressperson's website, would seem to be fair use.
OK, C-Span asked Speaker Pelosi to remove a clip of its coverage of a House committee hearing on global warming from her blog. This apparently after Republicans accused Pelosi of violating C-Span copyright.
Now C-Span has changed its policy to allow the Speaker of House to show footage of congressional hearings on her website.
Schoolhouse Rock materials available here.
Par Value of One Thousand Words Per Picture
Getty Images Inc. is one of the largest vendors of still and moving images to the media industry. It is also a publicly traded company, which means that there is interesting stock coverage, commentary and SEC filings, relating to the marketing and valuation of images in the digital era.
NY Times On Branding
March 08, 2007
NFL Copyright Warning Put Back On YouTube
Wendy Seltzer recovers from her first DMCA takedown and get her video of NFL's copyright warning put back up on YouTube.
March 07, 2007
ROTOWIPER Brand Weed Wiper Triumphant
ArkansasBusiness.com: "New Zealand Manufacturer Gets Injunction Against Northwest Arkansas Group":
Rotoworks International Ltd., a New Zealand farm implement manufacturer, received a preliminary injunction Monday in a trademark infringement case involving a bait-and-switch scheme by a northwest Arkansas group.
In the lawsuit filed by the Henry Law Firm of Fayetteville, Rotoworks claimed the defendants — Grassworks USA LLC, Grassworks!!! LLC, Robert D. “Bobby” Umberson and Linda K. Reed — infringed on the federally registered Rotowiper trademark and violated several trademark laws by manufacturing copies of Rotoworks’ herbicide applicators, known generically as “weed wipers.”
Not Necessarily Stoned, But Infringing
NME: 'Hendrx Family Sues Vodka Brand":
"The family of Jimi Hendrix have filed a lawsuit over the use of his name in association with a brand of vodka.
Seattle businessman Craig Dieffenbach is marketing the brand, called Hendrix Electric Vodka, which is packaged in a purple bottle and features Jimi Hendrix' face and signature.
Dieffenbach is defending his right to use the likeness, as a 2005 court ruling decided that the Experience Hendrix owns the right just to his music, and not his name and image. "
I looked at the PTO registry and there seem to be a boatload of registrations and applications for the JIMI HENDRIX signature in the name of Experience Hendrix. However there is a cryptic reference in Wikipedia that Al Hendrix, Jimi's father, donated Jimi's 'likeness' to the James Hendrix Foundation, not to Experience Hendrix. A right of publicity can be a descendable asset. So there may be some confusion. If you're aware of the 2005 court ruling referred to, send it on in.
True story: I was playing 'Bold as Love' in my office when my legal assistant comes in and says 'oh, someone did a cover of the John Mayer song?'
BUT TO BE FAIR: I don't really know how Emo punk is different from regular punk.
Bizarre. Maybe It Was In A Lookalike Best Buy Store
WaPo: "Best Buy Web Site Pricing Probed":
"Best Buy is under investigation by Connecticut's attorney general after consumers complained they were denied deals found at the electronic retailer's Web site by store employees who pulled up a lookalike site that listed higher prices on some merchandise."
Update: Engadget comments, quoting Best Buy that this was an intranet. I wonder if the sites were identical not to deceive, but, assuming that the intranet site served as a 'beta' or 'draft' or 'mock up' for the public site, many pages would be identical to the public site, and some employees may have been genuinely confused themselves about the relationship between the public and private sites. Just speculating.
More On Webcasting Royalty Rates
China: IFPI SuesYahoo Over Links To Unlicensed Music
ZDNet: "Yahoo China Sued For Alleged Copyright Breach":
"Music industry giants including Warner Music Group are suing Yahoo China for alleged copyright infringement by providing links to unlicensed music, trade organization IFPI said on Wednesday.
Beijing's No. 2 Intermediate Court has accepted the case, which was filed in early January by 11 companies and seeks damages of $710,686 (5.5 million yuan), said Leong May-seey, the International Federation of the Phonographic Industry's (IFPI) Hong Kong-based regional director for Asia."
Microsoft: "Searching For Principles: Online Services and Intellectual Property"
Thomas C. Rubin (Associate General Counsel for Copyright, Trademark and Trade Secrets, Microsoft Corporation): "Searching for Principles: Online Services and Intellectual Property" (speech delivered to the Association of American Publishers):
"So the question we need to ask ourselves is: What path will we as a society choose in making the world’s books and publications available online? Will we choose a path that nourishes creativity and innovation over the long term and that preserves incentives for authors to offer their best works online? Or will we choose a path that encourages companies simply to “take” the works of others, without any regard for copyright or the impact of their actions on authors and publishers too?"
Microsoft 'backgrounder' with Rubin: "Balancing Copyright Protection and Intellectual Property Rights in the Digital Age"
$520 Million - Nice, For A Single Trademark License
March 06, 2007
Various Briefs Re Keywords In 2d Appeal
Prof Goldman: Rescuecom Files Reply Brief in Rescuecom v. Google.
Attention New York-area Law Students
Observe the romance and adventure of trademark law close up. If you're a 2L or 3L New York-area law student, and you'd like to work for me this semester part-time, send a resume to marty @ schwimmerlegal dot com. 'Demonstrated interest in intellectual property,' as they say. Offices in mid-town.
March 05, 2007
Could This Be The End Of Webcasting?
Colleague Paul Fakler stopped by on his way to the coffee machine to advise that webcasting as we know it may soon be over. Forced by me to expand, Paul advises:
"Although the public version of the decision has not yet been released pending various redactions of sensitive financial information, the newly-formed Copyright Royalty Board has issued its decision setting new rates and terms for webcasters and certain other digital audio services. The news is not good for webcasters. The RIAA and its affiliate SoundExchange have a long history of proposing wildly high royalty rates for the various compulsory licenses provided by the Copyright Act (except, of course, when they are the licensees, e.g., mechanical licenses from song composers). In every prior proceeding, the arbitration panels have rejected that proposal and crafted a rate somewhere between the RIAA proposal and the licensees' proposals. Until now. In the previous rate setting proceeding (instituted in 2000 with rates set in 2002), RIAA requested a per-play rate of .4 cent for webcasters. The Copyright Arbitration Royalty Board (CARP, under the old system) initially set a rate of .14 cent per play, which was lowered further on appeal to .07 cent. In 2004, the first time the rates were up for reconsideration, the RIAA and webcasters agreed to extend this per-play rate. The parties could not settle when the rates recently came up for reconsideration again, and an rate proceeding commenced. According to the RAIN newsletter the Copyright Royalty Board issued its decision last Friday, and for the first time adopted the record labels' full proposed per-play rate of .19 cent (phased in from .08 cent from 2006 through 2010). According to the analysis on RAIN, even the retroactively effective rate for 2006, .08 cents per play, works out to over 100% of a typical webcaster's revenue. It boggles the mind how a supposedly market-rate determination by the Copyright Royalty Board could end up with such a rate that no sane webcaster ever could have agreed to."
This is a shame. I was hoping that Bose or Tivoli would invent a table radio with WiFi, that would receive every radio station in the world.
Disclosure: Paul represents a client in a proceeding against Sound Exchange.
Other coverage: TechDirt: "RIAA Pushes Through Internet Radio Royalty Rates Designed To Kill Webcasts.
Pretty Big News, At Least For Me
Effective immediately, in addition to my ongoing role at the Schwimmer Mitchell Law Firm ("SML"), I will be Of Counsel to the New York law firm of Moses & Singer LLP ("M&S"). The Schwimmer Mitchell Law firm continues business as usual. And to answer a question several of you have asked, yes, the Trademark Blog will continue, unchanged.
The new relationship will create exciting opportunities for SML clients. Moses & Singer has an active, nationally recognized transactional, litigation and counseling practice in the fields of entertainment and intellectual property law. The firm has long been a key advisor to companies of all sizes and individuals in a variety of industries including television and motion picture; book, periodical and music publishing; recording; electronic media; and the performing arts. My affiliation with M&S will enable me to introduce clients who need such services to a group of experienced, respected and highly responsive lawyers in other practice areas outside the scope of my current practice, including major intellectual property litigation in the copyright and patent areas.
I should point out that any opinions expressed in the Blog are either my own or stolen without attribution, and are not the opinions of Moses and Singer.
March 04, 2007
Watching YouTube
TechCrunch: "Good News, Bad News at GooTube"
Good Morning Silicon Valley: "YouTube Hopes Classy Brits Jumpstart Its Gentrification Plan."
Washngton Post: "YouTube Struggles Despite Dominance"
March 02, 2007
More On The Big Game
San Francisco Chronicle: "NFL Marketers Want 'Big Game' Trademark":
"One way that advertisers who aren't NFL sponsors typically attach themselves to the Super Bowl is simply to refer to it as "The Big Game.'' As in, "Get your flat-screen TV in time for the Big Game."
What is a generic term for most people becomes a very specific term in the lamp-blacked eyes of the NFL.
But the Big Game also has a very specific application for Stanford University and UC Berkeley, whose annual football game dates back to 1892. It has been known as the Big Game since 1902, according to San Francisco author Ron Fimrite, who is writing a history of Cal football."
Also, Canada.com weighs in, attributing the story to us.