31
May/11

You Cannot Serve Both God and Pancakes, con't.


After mediation talks failed, the International House of Pancakes has again sued the International House of PrayerPrevious suit here.

 

 

Complaint Ihop Part Two



26
May/11

Draft of the Protect-IP Bill, Passed But On Hold


The Protect IP Bill was passed in committee but put on hold.

 
Bill Protect Ip Act 2011



26
May/11

Apple v White Phone Conversion Kit


Apple sues re alleged vendor of kits containing plates to convert a black iPhone to a white one. This complaint was withdrawn without prejudice the day it was filed. Interesting narrative starting around para. 21.

Compaint Apple White Phone



24
May/11

Nimmer on Tattoos


Coverage on Judge denying preliminary relief in Hangover tattoo case, noting that while the tattoo artist was likely to prevail, the harm in enjoining the release of the movie outweighed the harm in denying the injunctive relief.

Attached is the public portion of Prof Nimmer’s declaration on the copyrightability of tattoos, answering the question: how is Mike Tyson’s face like frost on a glass?

 
Nimmer Part 1



24
May/11

Copyrightability of Unauthorized (but Lawful) Derivative Work Starring Keanu Reeves As Johnny Utah


Plaintiff wrote parody of the Keanu Reeves masterwork ‘Point Break‘ (which also marked the zenith, I might add, of Lori Petty’s work).  The work was produced as a play by defendants, who decided to stop paying plaintiff royalties, arguing that plaintiff could have no rights in the parody as she had no rights in the underlying Point Break script.

Not correct.   The creator of an unauthorized but lawful derivative work, such as a parody, can obtain copyright in the protectable new derivative material.  Motion to dismiss denied.

 
Decision Point Break



24
May/11

"Seized Sites: The In Rem Forfeiture of Copyright-Infringing Domain Names"


Seized Sites: The In Rem Forfeiture of Copyright-Infringing Domain Names” by Andrew Sellars

Abstract:

In the summer of 2010, the Immigration and Customs Enforcement Division of the Department of Homeland Security began “Operation In Our Sites,” an enforcement sweep targeted towards websites allegedly dealing in counterfeit goods and copyright-infringing files. The operation targeted the websites by proceeding in rem against their respective domain names. For websites targeted for copyright infringement, ICE Agents used recently-expanded copyright forfeiture remedies passed under the 2008 PRO-IP Act, providing no adversarial hearing prior to the websites being removed, and only a probable cause standard of proof.

This Paper examines three specific harms resulting from Operation In Our Sites, and three ways in which the enforcement sweep could be changed to better balance the interests of intellectual property enforcement and free expression. By removing content from the Internet before being fully adjudicated as infringing, the civil forfeiture remedy works a prior restraint of speech. To avoid this, this Paper urges Congress and the courts to institute the same procedural First Amendment protections in place in the area of obscenity to copyright infringement. Secondly, the alleged infringement here appears to be conducted by third parties posting material on the websites. By keeping website owners out of the dispute process, this remedy disrupts the cooperative spirit sought to be instilled by the Digital Millennium Copyright Act’s inclusion of statutory safe-harbors for online service providers. To reinstate this cooperative spirit, agents should be required to attempt in personam contact against the website owners before proceeding against the websites in rem. Finally, by targeting website domain names instead of actual content servers, Operation In Our Sites has not effectively disrupted the activities of the targeted websites. In fact, many websites have grown in popularity since this enforcement sweep began. Due to the dubious efficacy of targeting domain names, this remedy should be reserved for situations where there exists some other extrinsic reason to believe that the enforcement tactic will work.



24
May/11

LIVE COMFORTABLY v LIVE LIFE COMFORTABLY


Owner of registrations for LIVE COMFORTABLY v La-Z-Boy for use of LIVE LIFE COMFORTABLY.

Complaint Live Comfortably



23
May/11

Ollie on Trademarks: POPSICLE et. al. v. BONESICLE


I’m Ollie.  Plaintiff, Unilever, owns an extensive portfolio of over 25 trademarks ending in -SICLE such as POPSICLE, FUDGSICLE and CREAMSICLE, primarily for quiescently frozen treats but for non-food goods as well.  I note in passing that the inventor, Epperson, had originally called his first creation the EPSICLE, which he re-named the POPSICLE.  Defendants promote BONESICLES, a ‘freezer pop dog treat.’  The website claims that ‘taste tests show 100% of dogs loved the flavor.’  A bold claim indeed.  Unilever moves under infringement and dilution theories.

Unilever asserts a family of marks, that is to say, the  -SICLE suffix has achieved secondary meaning, a reasonable assertion considering the popularity of POPSICLES, FUDGSICLES and CREAMSICLES among humans.

But query: whither Chewy Vuitton?

Complaint Unilever Koolpet



23
May/11

Apparently The IP BlogDex Will Be A Work-In-Progress


Thank you to everyone who submitted their IP blog or twitter feed to be included in the IP BlogDex (updated, found here).  If you would like to be included, click on the bright shiny ‘contact me’ button above, and send me a link, a clever blurb, and your jurisdiction.



23
May/11

The Navy Owns A Collective Mark Registration In The SEAL Mark


 

The reporting on Disney’s application for SEAL TEAM 6 is omitting an interesting fact.  The Navy owns registration 3285473 for SEAL, registered in 2007.  The specimen is reproduced above.  It is a collective mark indicating membership in a “organization of applicant that develops and executes military missions involving special operations strategy, doctrine, and tactics.”  Collective marks are used by members of an organization that sets and enforces criteria for membership.  AAA and AFSCME are examples of other collective marks.