Not That The Case Turns On This . . .

. . . but it’s a little odd that Bogart’s lawyers don’t know that Claude Rains, and not Bogart, delivers the line ‘Round Up The Usual Suspects.’ See para. 25, page 7 of the state complaint. Burberry should certainly deny that allegation.

Coverage here.

bogart v burberry


What Would You Think If 'adidas' And 'Three Stripes' Weren't In The Title Of This Post?

Adidas sues Wolverine for infringement of adidas’ three strip mark. Pictures of the allegedly infringing footwear on pages 11 and 12 of the complaint (one is pictured above).

Para 61 on page 19 is interesting as it alleges that the infringing footwear ‘also’ dilutes’ adidas’ rights in 34 states other than Oregon (where the suit is being brought).

I thought I’d have a bit of fun with this post below. Remember, people who read The Trademark Blog (and can see other people’s comments) don’t represent the relevant universe that a real survey would examine (because they are extremely erudite and good-looking).

adoidas v wolverwine 3 stripe


Please Take This Quick Survey Re This Shoe

Who do you think puts out the shoe shown here?

Do you think the shoe is put out by that company alone or in association with someone else? If so, who would that be?

Do you think that the company that puts out this shoe got permission for some other company? If so, who would that be?

Update: see post above.


Carpe Copyright

A group of prestigious publishers (Oxford University Press, Cambridge University Press and Sage Publications) brought a copyright infringement suit against Georgia State University, claiming that the University’s “e-reserve policy” under which students had access to electronic version of course works, exceeded the bounds of fair use, alleging ninety nine separate instances of infringement.

After a trial, a 350-page decision has just been released and it is interesting in that it delivers a bright-line rule for what constitutes fair use – for books of nine or fewer chapters, fair use is use of 10% of the total page count or less; for books of ten chapters or more, the fair use threshold is use of less than a single chapter. Cambridge University Press v Becker (ND. GA. May 11, 2012).

But that’s not what we want to draw to your attention today.

Over ONE-THIRD of the claims were dismissed prior to the Court’s fair use analysis because the publishers didn’t have the paperwork to prove that they owned copyright in the relevant work.

The publishers either couldn’t provide authentic certificates of registrations, or couldn’t identify assignments, or produce work-made-for-hire agreements from authors of individual chapters.

The important lesson is twofold:

(1) The Copyright Act has a statute of frauds – all transfers of ownership have to be in writing; and
(2) That which goes without saying often goes without doing.

It goes without saying that the publisher (or software developer or production company or website operator) is “supposed” to be the owner of the commissioned work. But getting the assignment in writing, even something as simple as “I, author, assign any and all worldwide rights I may have in the work to ____”; well, it sometimes gets lost in the rush to get the product out the door. And as for filing a copyright application? Next week, after things calm down.

So avoid the trap that snared these prestigious publishers. Ask yourself RIGHT THIS SECOND: for all your important copyrightable works (the website, the ad campaign, the smartphone app) – do you have signed writings from all the involved parties? Did you file an application for copyright registration?

Not to put too fine a point on it: You cannot prevent the unauthorized infringement of your copyrightable property, or receive statutory damages for infringement, without doing this.


E Clampus Vitus?

e clampus vitus trademark


Final Trademark Exam Question

Hypothetical: Two days ago, Apple files an ITU application for iEXAMPLE for widgets. Yesterday Apple holds a conference and announces the new product. It is met with acclaim and every media outlet in the world covers the news. By the end of the day, iEXAMPLE is a household word. Distributors cannot yet place orders for the iEXAMPLE with Apple.

This morning, Bad Guy #1, a serial cybersquatter, registered the domain name iEXAMPLE.com, and uses it for keyword ads relating to Apple and its products.

Also this morning, Bad Guy #2, a serial counterfeitor, registered the domain name CHEAPiREPLICAS.COM, and starts to offer widgets under the iEXAMPLE mark.

Assume all behavior described above takes place in the US.

Discuss Apple’s remedies as they exist today.

Good luck, cheating is allowed, have a good summer.


Bloomberg's Use of Swatch Conference Call Transcript Held To Be Fair

The Bloomberg news service copied a transcript of a conference call between Swatch and stock analysts. Swatch claimed copyright. Held: fair use (relying heavily on (1) news reporting purpose; (2) thin copyright; and (3) no discernable effect on the ‘market’ for the work. Background here.

decision swatch bloomberg fair use


Volokh on Google As Publisher

Volokh First Amendment Paper Copy



Tyr is the Norse god of single combat, victory and the high tech swimwear, hence its use by Tyr Sport. Tyr Sport also sells water bottles and is suing Tyr Spring Water.

Fun fact: TIW is old english for TYR, which led to Tiw’s Day, which led to Tuesday. And today is Tuesday.

tyr v ttyr complaint


My Blog Supports Health; It Opposes, But Doesn't Necessarily Prevent Disease

43(B)log: FTC ALJ rules many Pom ads misleading, unsubstantiated:

Though I don’t think the opinion explicitly says so in so many words, it implicitly acknowledges what I think any honest observer of the general consumer market would have to: ordinary consumers are unlikely to regularly distinguish between a “supports health” claim and a “prevents disease” claim in any relevant way, meaning that the DSHEA’s framework is fundamentally rotten.