Marvel sends TechCrunch a demand letter saying ‘don’t print the demand letter.’
UPDATE: The email is up.
Background: TechCrunch used the theater’s group sales to purchase all the seats for a showing and then invited its readership to the screening. Marvel doesn’t identify a legal basis for its demand but advises that TechCrunch may not ‘exhibt, sell tickets to or invite the public’ to the screening.
Well, TechCrunch is not selling tickets, it’s not exhibiting, and, in the words of my colleague Paul Fakler, under the Copyright Act there’s no exclusive right to invite the public.
I suppose that you could posit a fact pattern where somebody gives away a branded product in a promotion in such a way as to deceive the public that he/she was endorsed by the brand owner.
But (use deep movie trailer announcer voice here) IN A WORLD where people give away iPods at trade shows all the time (and people don’t read that as endorsement), I will speculate in general, (not having reviewed all of TechCrunch’s promotions of this event,) that to be actionable as false endorsement, the language would have to be closer to ‘false on its face’ as in “Join TechCrunch and Marvel at a screening . . .” than to language that theoretically implies an endorsement (“Join TechCrunch at a screening of Iron Man.”).
Differing views glady accepted at marty at symbol schwimmerlegal dot com.
Still in all, can’t wait to see Iron Man.
2d Update: Goodness Prevails, Minus $2000 In Legal Fees.
Various buildings overlook Wrigley Field, home of the Chicago Cubs. Entities unrelated to the Cubs operate businesses on those buidlings’ rooftops, charging admission and selling food and drink during Cubs games. The Cubs have sued some of these businesses for, among other things, falsely suggesting endorsement by the Cubs:
Chicago National League Ball Club. LLC v. Wrigley Rooftops II, LLC, et. al., 08 c 968 (ND Illinois Feb 15 2008).
The Cubs are also considering putting up screens to block the view.
From the complaint:
“Since 2000, Plaintiff has been engaged in the commercial entertainment distribution industry. Plaintiff formerly sold and rented edited movies. Plaintiff currently rents unedited movies via an online business. Until recently, Defendant sold and rented edited movies. This case is about Defendant falsely representing himself to be a founder, owner, franchisee, or dealer of Clean Flicks or otherwise affiliated with Clean Flicks.
. . .
Since on or about 4 December 2007, numerous news stories have appeared identifying Defendant as “CleanFlicks Founder”, “co-founder of CleanFlicks”, “Former ‘Clean Flix’ owner”, “the owner of ‘Clean Flix’, the company that edited R-rated movies and was recently closed down by Hollywood lawyers”, “a former Clean Flicks franchisee”, “a franchise operator for Clean Flicks”, a man who “used to own four Clean Flicks franchises”, a man who “at one time ran a successful Clean Flicks store”, a man who “formerly operated Clean Flix – a business in Orem that edited feature films to remove or alter conduct deemed inappropriate for children”, and “a former dealer of edited movies with CleanFlicks”. Each of these statements is false.”
Clean Flicks Media, Inc. v. Daniel Dean Thompson, 2:08-cv-00086-PMW (D Utah (Central) Feb 1 2008).
From the complaint:
. . . Defendants have been manufacturing, offering for sale . . . a line of so-called “home theater chairs” one of which is called “The Eastwood.” . . . Defendants also have been manufacturing . . . “home theater chairs” named after various other living and deceased celebrities, including “The Brando,” “The Cagney,” “The Cooper,” “The Bronson” and “The Connery.”
Clint Eastwood v. Palliser Furniture, CV08-00266 (CD California Jan 16 2008).
Gorillaz has a good song named “Clint Eastwood.” “High Plains Drifter” may be my favorite of his westerns. ‘Bird,” I think, was underrated.
You’ll note that several of the movie stars listed in the complaint are dead and may wonder whether that would affect the analysis. It depends – research the term “descendability of publicity.”
Allegation form the complaint:
Defendant sare engaged in an Internet marketing business of a dubious nature. In
order to lure people to the Web sites of defendants and other entities, defendants blast untold
numbers of unsolicited SPAM e-mails to people’s e-mail accounts. These e-mail messages are
sent in a way to make them falsely appear to come directly from Bed Bath& Beyond, and make
illegal use of the BBB Marks.
Bed Bath & Beyond v. Jumpstart Technologies, Harding Innovations and Greg Tseng, 2:08-cv-00357-JLL-CCC (D NJ Jan 18 2008).
Prof Goldman: “Online Word of Mouth and its Implications for Trademark Law“:
This Chapter discusses the emergence of online word of mouth, the process by which consumers disseminate their views about marketplace goods and services. Due to online word of mouth, consumers have an unprecedented ability to influence the brand perceptions of other consumers. Unfortunately, these effects have put doctrinal pressure on trademark law, leading to judicial interpretations that inhibit the flow of online word of mouth and may damage the efficacy of marketplace mechanisms. This Chapter will explore how trademark law should be interpreted to preserve the flow of socially beneficial online word of mouth.
Hollywood Reporter: “When Do TV Show Titles Violate Trademark Law?”
When the choice of title has no artistic relevance to the subject of the show. Sorry, I gave away the ending.
43(b)log and Prof Goldman on producer Scott Rudin’s attribution of NY Times Online reader comments as coming from the Times (which he is doing to protest the Times’ practice of posting reader comments).
In 1961, famed Braodway producer David Merrick found 7 people with the names of NY threatre reviewers and quoted them in an ad promoting his play “Subways Are For Sleeping.” True but misleading, as we say in the trade.