HERSHEY COMPANY v. FRIENDS OF STEVE HERSHEY http://t.co/6wWmNFLu5a
— TrademarkBlog (@TrademarkBlog) September 6, 2014
Justia.com Opinion Summary: Fortres develops and sells a desktop management program called “Clean Slate” and holds a federally-registered trademark for use of that name to identify “[c]omputer software used to protect public access computers by scouring the computer drive back to its original configuration upon reboot.” When Warner Bros. Entertainment used the words “the clean slate” to describe a hacking program in the movie, The Dark Knight Rises, Fortres experienced a precipitous drop in sales of its software. Fortres sued, alleging that the use of the words “clean slate” in reference to the software in its movie infringed its trademark in violation of Lanham Act, 15 U.S.C. 1114, 1125, and Indiana unfair competition law. The district court dismissed, reasoning that Fortres had not alleged a plausible theory of consumer confusion, upon which all of its claims depend, and that Warner Bros.’ use of the words “the clean slate” was protected by the First Amendment. The Seventh Circuit affirmed without reaching the constitutional question. Juxtaposed against the weakness of all the other relevant factors, the similarity of the marks is not enough to establish confusion. Trademark law protects the source-denoting function of words used in conjunction with goods and services, not the words themselves.
43(b)log discussion here.
This is interesting for a bunch of reasons. The San Francisco Forty-Niners sue a nightclub near its stadium, that promotes events that refer to the Niners or its players. See Exhibits Q, R and S in the second document below for ads the club distributes to promote, for example, birthday parties ‘in honor of’ specific Niner players, with photos of the player wearing his Niner uniform. Of particular interest is the Niners’ invocation of its unusual 3-D trademark registrations in its uniforms (see Exhibit J through M).
One fact that isn’t clear (to me) from the pleading is whether the nightclub had the consent of the player whose birthday it was allegedly celebrating. And its not clear if the players showed up for their party.
There was a recent case that stands for the proposition that you can’t end-run a false endorsement cause by claiming that you were exercising your First Amendment rights by ‘foisting’ some kinds words on the celebrity (Michael Jordan prevailed against a drugstore that ‘congratulated’ him on being inducted into the Hall of Fame (in a full-page ad that featured all sort of MJ indicia)). So if the players didn’t authorize, there may be an action there as well.
p.s. There’s also a straight-forward copyright claim, as the nightclub appears to have used Niner photographs without authorization.
Last night I took the family to see ’22 Jump Street’ (“Mindless fun” says The Trademark Blog. “Could have been a lot worse”) and we saw the trailer (above) for “The Interview,” a Seth Rogen/James Franco comedy scheduled for release this fall. The movie appears to be about an attempt to assassinate Kim Jong-un, the leader of North Korea.
Now, the plot device of an attempt to assassinate a recognizable individual seems to be quite common. Personally, I recommend (the original) “The Day of the Jackal“, about an attempt to assassinate Charles de Gaulle.
The movie hasn’t been released so we don’t know what it says precisely. So we will have to wait and see.
There’s no such thing as bad publicity.
2d Circuit reversed. FCC procedure followed but Court kicks it back to 2d Circuit to determine constitutionality.
Decision Fcc Expletive
Wired.com: “RIAA Decries Attorney-Blogger as ‘Vexatious’ Litigator“:
The Recording Industry Association of America is declaring attorney-blogger Ray Beckerman a “vexatious” litigator and is seeking unspecified monetary sanctions to punish him in his defense of a New York woman accused of making copyrighted music available on the Kazaa file sharing system.
French décrier, from Old French decrier, from de- + crier to cry
1 : to depreciate (as a coin) officially or publicly
2 : to express strong disapproval of
Not IP but interesting. A Michigan Republican allegedly says to a newspaper that Republicans will challenge voters based on foreclosure lists. The paper prints it, the Republican demands a retraction, the paper refuses, the Obama campaign brings a suit requesting an injunction against a ‘lose your house, lose your vote campaign.’ Ripeness issues?
43(B)log: “Copyright and California’s Anti-SLAPP Law“:
Duncan sued defendants, including the Sierra Club, based on Thomas Cohen and Kristi Cohen’s attempts to make a film of Duncan’s book The River Why. He alleged copyright infringement and various state-law claims.
The court first rejected the argument that California’s anti-SLAPP statute applied to federal claims. It then reached the same conclusion as to the state law claims. The threshold question is whether the state-law claims arise out of protected activity—the exercise of free speech.
Designboom: “‘Liquidated Logos by Zev“:
“zevs is a young french artist who lives and works in paris. he doesn’t typically display his work in galleries, preferring instead to use the urban environment as the canvas for his street art. he has pioneered his own style of french street art that blurs the line between vandalism and art.”