NY Times Reviews "Common As Air": History of IP

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NY Times: “A Republic of Letters: Review of “Common As Air“:

Intellectual property has become such a hot topic that it needs to be doused with some history. Strange as it may sound, this is an argument developed convincingly in Lewis Hyde’s “Common as Air,” an eloquent and erudite plea for protecting our cultural patrimony from appropriation by commercial interests.
The history that Hyde invokes goes back to the Middle Ages, when vil­lagers enjoyed collective rights to common lands, but for the most part it is situated in the era of the founding fathers. Hyde invokes the founders in order to warn us against a new enclosure movement, one that would fence off large sectors of the public domain — in science, the arts, literature, and the entire world of knowledge — in order to exploit monopolies.
He cites plenty of examples from Hollywood, the pharmaceutical industry, agribusiness, and the swarm of lobbyists who transform public knowledge into private preserves by manipulating laws for the protection of intellectual property. Then he draws on Franklin, Adams, Jefferson and Madison for arguments against such privatization.



Nicole Polizzi, TV’s SNOOKI, filed SN 77929985 for SNOOKI, covering books and class 41 ‘personal appearances.’ The appllication has now received a preliminary Section 2(d) refusal, citing reg 2844692 for ADVENTURES OF SNOOKY for a ‘series of children’s books.’ Coverage here.


A&P v Stop & Shop re "Save More Every Time You Shop""

Defendant supermarket’ ran two ads titled “Save More Every Time You Shop”, one with a subtitle “Eileen Saved 9% at Stop & Shop” and one with a subtitle “Diane Saved 19% at Stop & Shop.” The ad indicates that on two specifed days, the same items purchased at the A&P were correspondingly less at the Stop & Shop. Among other issues, plaintiff alleges that the claim is false as a one-time price check doesn’t justify the claim that Stop & Shop’s prices are lower every time. Furthermore, for the two days cited in the ads, no customer records could be found matching the amounts of the purchase orders claimed in the ads (para. 24).
Complaint a&p Stop&Shop False Advertising


4th Circuit: Post-Purchase Confused Restroom Users

GP licenses the ENMOTION towel dispenser to distributors who license it to restroom operators. The restroom operators are contractually obligated to use only ENMOTION brand toweling. Von Drehle created compatible (and allegedly inferior) paper for the ENMOTION dispenser. Fourth Circuit reverses lower court’s dismissal of GP’s trademark infringement cause, as GP may be allowed to show actionable post-purchase confusion by the non-purchasing public: namely restroom users who expect ENMOTION towels to come out of an ENMOTION dispenser (GP argued that this was analogous to expectations that COCA COLA is dispensed from a COCA COLA-marked soda fountain.
Question: Assuming that the restroom operators are not confused, how would confusion among restroom users affect GP monetarily?
Also: the concurrence on page 25 is a must-read.
Decision 4th Circuit GP Enmotion Dispenser


"Avoiding The Wrath of Righthaven"

Las Vegas Trademark Attorney: “Avoiding The Wrath of Righthaven”:

There has been a lot of discussion in the Las Vegas area (and nationwide) about the numerous copyright infringement lawsuits filed by a Las Vegas company named Righthaven, LLC. As of August 4, 2010, Righthaven had filed approximately 86 lawsuits against various website operators claiming copyright infringement. While not immediate apparent from the lawsuits, Righthaven is essentially a company established by Stephens Media LLC, the owner of numerous newspaper including the Las Vegas Review Journal (the “RJ”), in order to go after any and all third party websites that improperly excerpt all or part of the copyrighted articles from the RJ.


This Gives The UDRP A Good Name Or A Bad Name, Depending On Your Outlook

Complainant appears to have been misleading as to whether it adopted its mark before or after respondent’s registration of the domain name CREDITEUROPE.COM, and argues that it is simply more important than registrant. Complainant loses on the first prong and there’s a stinging concurrence.
Coverage here.
Decision UDRP Credit Europe


Second Circuit Personal Jurisdiction: Chloe v Queen Bee – One Trap Sale "Might Well Be" Sufficient

This is now the latest Second Circuit decision on minimum contacts in NY in an IP context.
Chloe sues Defendant. Defendant sold 52 non-Chole bags into NY and one alleged Chloe-counterfeit to Chloe’s NY law firm. The 2d Cir finds the totality of those sales sufficient for personal jurisdiction Page 18: the court says that a single trap sale ‘might well be sufficent.’
Decision Chloe Queen Bee 2d Circuit PJ


Another LEVI'S Arcuate Lawsuit

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Levi Strauss fiercely protects its ‘arcuate’ trademarks, the arch-like design on back pockets, etc. Revise Clothing received the registration above, received a demand letter from Levis, and now brings a declaratory judgement action.
Complaint Revise Vanilla Star Levis Arcuate Trademark


The Burden Of The Past And The American Comic Book Writer (Gaiman v McFarlane)

Plaintiff Gaiman (famous writer) sues Defendant McFarlane (famous comic artist). Defendant hired plaintiff to write some scripts for the SPAWN comic book. Plaintiff creates a new character, Dark Age Spawn. Defendant later uses a Medieval Spawn. Judge, in determining damages, finds that Medieval Spawn infringes Dark Age Spawn.
Rainy day fun: compare the copyright analysis of Dark Age Spawn v Medieval Spawn, to the analysis of Bratty Dolls in the Ninth Circuit Bratz case. Who would win in a fight: Medieval Spawn or a Bratz Girl?
Decision Gaiman Mcfarlane Spawn


BUDWEISER Stalled At 23 Of 27 EC Countries

Budejovicky Budvar of the Czech Republic, owner of the BUDWEISER trademark in certain EC countries, including Germany, successfully oppose InBev’s CTM application for BUDWEISER. IPKat commentary here, text of ECJ decision here.