Defendant opens ‘breastaurant’ named ‘Ricky Bobby’s Sports Saloon & Restaurant.’ Hilarity ensues. Extensive discussion of ‘Talledega Nights’ and ‘male-oriented entertainment clubs,’ or ‘breastaurants.’
. . . a two dimensional representation of applicant’s ketchup bottle container and the product labels affixed thereto, which two dimensional representation is itself used as a logo mark on single serve packaging for the applicant’s goods.
It owns a 3d version described as:
. . . a glass bottle, the lower portion of which contains eight hexagon panels which are round on the top and bottom and the upper portion which tapers inward slightly from the top of the panels to the top of the bottle and cap thereto.
Defendant sells MELINDA-brand spicy ketchup, depicted above. I’m not sure why anyone would buy a glass ketchup bottle at this time, when squeezable palstic versions are available. The word KETCHUP is Chinese in origin. That and other fun ketchup facts are found here. Heinz claims that the ketchup will pour faster if you hit it on the ’57′ on the neck. Ketchup is a non-Newtonian liquid.
KETCHUP is acknowledged to be the standard spelling these days (apparently there are regional hold-outs). Heinz Dawid claimed that one time he instructed a foreign associate to file an application covering CATSUP and the associate filed for CAT SOUP.
Time’s up from yesterday’s post.
Jewel ran the above ad in a commemorative issue of Sports Illustrated, without the authorization of Michael Jordan. MJ sues. MJ concedes that if the ad is held to be non-commercial speech, then his various claims fail. The Court, interestingly, says that it’s not so sure that’s correct (page 10) but that was the concession, so there you go. The question is therefore, is this ad commercial speech (and therefore entitled to a lowel level of First Amendment protections.
Held: Give me a break. Why did Jewel run the ad?
We don’t doubt that Jewel’s tribute was in a certain sense public-spirited. We only recognize the obvious: that jewel had something to gain by conspicuously joining the chorus of congratulations on the much-anticipated occasion of Jordan’s induction into the Basketball Hall of Fame. Jewel’s ad is commercial speech. (p. 20)
Accordingly, motion in favor of defendant was reversed, and the suit returns to the District Court to determine if there is a valid false endorsement claim. That should be an interesting question as well. If you are flipping through a special issue of SI, and every single ad says ‘Congratulations, Mike’ ‘Congratulations, Mike’, etc, do you believe that MJ authorized each ad, or merely that every advertiser paid SI so that they could get some beneficial glow?
Every year I run the same gag on Super Bowl Sunday: in order to avoid a false endorsement claim, rather than suggest that the NFL endorses me, I say “The Super Bowl is the official professional football championship of The Trademark Blog.” I am not deterred by this decision.
On today’s segment of ‘You The Judge’, please analyze the claims Michael Jordan may have against Jewel-Osco regarding the ad reproduced above (which ad ran without his authorization). This ad appeared in the inside back cover of a special issue of Sports Illustrated commemorating MJ’s induction into the Hall of Fame. Something you might need to know is that “Just Around The Corner” is the well-known slogan of Jewel-Osco. Also, 23 was MJ’s jersey number (and anyone who picked up that issue of SI would know that).
Tomorrow, I will upload the Seventh Circuit decision.
Plaintiff owns incontestable registration in SOBER COLLEGE for educational services and substance abuse treatment services. Alleges defendant is infringing its mark in relation to its educational services for students who have had substance abuse problems.
The United States Patent and Trademark Office (USPTO) is closed today, Monday, March 3, 2014. Trademark Electronic Application Submission (TEAS), Trademark Electronic Application Submission International (TEASi), and Electronic System for Trademark Trials and Appeals (ESTTA) remain available for use, and trademark filings therefore can be submitted electronically despite the closure. Nonetheless, any action or fee due on Monday, March 3, 2014, will be considered timely on the next succeeding business day on which the USPTO is open. Because the forms cannot be reprogrammed to accept delayed filings, if customers choose to file tomorrow, they will need to employ workaround procedures, which may include filing petitions. Thus, it is strongly recommended that any submissions due today be filed today, if possible.
Plaintiff claims trade dress in distinctive features of portable bluetooth speaker including ‘rectangle with rounded corners,’ ‘perforated grille,’ and ‘circle design passive radiators.’ See para. 39 for list of features. Interestingly, it seems to be claiming distinctive sounds made when pressing certain buttons, as part of the trade dress, making the claim and interesting mix of audio and visual elements (certain motion trademarks, such as the MGM lion roar, contain visual and audio elements, but this is a little different).
Aggravating factor: both parties used the same factory in China.
Drafting point: Just as well not to use the phrase ‘easy to use’ in the paragraph listing the elements of your trade dress.
Actress likely to establish that she owns independently copyrightable interest in her performance in a film.
Plaintiff sells the REPR rifle. Defendant publicly disputed inventorship. Plaintiff sues for 43(a) false statements and state torts relating to defamation and business disparagement.
Interestingly, while Rule 11 prohibits knowingly false statements in pleadings (at the federal level), statements made in a lawsuit tend to be privileged with regard to defamation.
The Gatling Gun, while not a truly automatic weapon, was one of the first rapid-fire guns, first deployed in the American Civil War The T-Shirt cannon is believed to have been introduced by the San Antonio Spurs during the mid-90′s. Plaintiff owns a trademark in T-SHIRT GATLING GUN. Plaintiff alleges defendant sells inferior guns under the mark T-SHIRT GATLING GUN, thus souring the Big Ten and the Milwaukee Bucks on the product. The video appears to illustrate defendant’s product.