I Can't Afford To Heart NY
From here.
November 19, 2008
October 30, 2008
Wassup WIth The Wassup Parody
Turns out that the director of the original Wassup commercial for Bud had retained the rights and had merely licensed the property to Busch, and that's why he can do a 'parody' for Obama. Story here.
October 25, 2008
Wassup Parody
Original:
July 23, 2008
Trademark Infringement Makes Small Children Cry
. . . or perhaps it was the trademark enforcement.
Wall Street Journal article on trademark owners policing use of character costumers by local party performers: "Why Dora the Explorer Can't Come To Your Kid's Birthday Party":
. . . .Though the walk-about "Dora" had the expected pageboy haircut and backpack, her expression was blank and her legs appeared out of proportion to the rest of her body. "When Dora came out," Mrs. Sorkin says, "none of the kids would go to Dora, including my daughter, and a few of the kids started crying."Elvira Grau, who owns Space Odyssey USA, where Mrs. Sorkin held her daughter's party, says the costume companies that service her parties try to make their costumes look sufficiently different from the trademarked characters to avoid lawsuits. When Mrs. Sorkin complained to her that Dora was "hideous," Mrs. Grau gave her a $250 credit. "But I told her, 'You can't have the real Dora. If you want the real Dora, call Nickelodeon.' "
Every sentence in this article is both funny and extremely sad.
There is a sentiment expressed by Justice Stevens in Moseley v V Secret, that where there is no confusion, a tarnishing use reflects on the tarnisher and not the trademark owner. It might be the case that where there is no confusion that the local children's clown is 'licensed' by anyone, that if the clown stumbles around drunk or otherwise behaves inappropriately, in a character costume, that that reflects on the clown, and not on the costume.
Comment away.
June 16, 2008
Goodnight Nobody
NY Times: "The Secret to Success in Publishing: Bash Bush, With Nods to a Classic":
The cover of “Goodnight Bush” looks almost exactly like “Goodnight Moon — green and orange, with an image of a window and fireplace — and uses a similar rhyme scheme. But there the thematic similarities end.The authors, Erich Origen and Gan Golan, set their story in “a situation room.” There is no bunny snuggling into bed, but rather George W. Bush, grinning and wearing a “Mission Accomplished” flight suit. Instead of three little bears sitting on chairs, there are “war profiteers giving three cheers.”
Well, let's see. First I would read the book and dust off one of our copies of "Goodnight Moon." I would check out the Cat Is Not In The Hat case, then the Priceless decision, and take it from there.
UPDATE: 43(b)log take on this.
June 02, 2008
UTAH LIGHTHOUSE: Inherently Protectable?
Plaintiff uses the mark UTAH LIGHTHOUSE in connection with goods and services that critque Mormonism. There has been extensive history between plaintiff and the LDS faith. Defendant FAIR responds to such critiques, and created a parody website that was similar in appearance to that of Plaintiff. Defendant used domain names such as UTAHLIGHTOUSE.COM to direct to the parody site (the names listed in this summary of the case on the Citizen Media Law Project's site all appear to point to plaintiff's site as this time).
There are complex and controversial issues here involving the intersection between trademark use and parody, and what constitutes commerical use of a trademark in a primarily religious/political speech context, similar to the issues raised by cases such as PETA v Doughney and JEWS FOR JESUS v Brodsky
Which issues I will not address in this post today.
I instead want to talk about the strange way the issue of whether plaintiff had a protectable mark was handled. Plaintiff received a registration 3119677 for UTAH LIGHTHOUSE after filing its complaint. Sections 7(b) and 33(a) of the Lanham Act discuss the evidentiary presumptions that a registered mark receives, including the validity of the mark as a protectable mark. See also McCarthy Section 32.134 and 32.138 for a general discussion of the presumptions that flow from a trademark registration.
In addressing the requirement as to whether it owned a protectable mark, plaintiff appears to have only cited its registration and relied upon the presumption. The District Court held that because the mark was not registered at the time the suit was filed, plaintiff was not entitled to that presumption (pg. 8) and then found that plaintiff had not shown secondary meaning (and then proceeds on a tangent about the absence of secondary meaning).
On appeal, plaintiff argues that even without the presumption, UTAH LIGHTHOUSE was inherently registrable.
The 10th Circuit choose not to entertain this argument as it had been raised only on appeal for the first time.
Oddly, it also finds that plaintiff failed to produce sufficient evidence that UTAH LIGHTHOUSE was protectable. If the registration was in the record, then, because it was issued under Section 2(a) and not 2(f), it would seem to be at a minimum evidence of the PTO's expert opinion that UTAH LIGHTHOUSE was inherently registrable as of March 21, 2005, the application's filing date (prior to the date that the suit began). With a minimum of evidence of trademark use (such as plaintiff's website), it is hard to see how defendant could establish that the mark wasn't protectable.
It could be that plaintiff's travails could have been avoided by plaintiff merely arguing in effect 'we are entitled to a presumption because of our registration but in any event, the mark is inherently registrable . . .', and that the court is penalizing the lawyering (unfettered by knowledge, I speculate freely).
As I stated above, I'm not speaking to the questions as to whether defendant's actions rose to commercial use, and whether it had good parody or other defenses. Based on one reading of the circuit court opinion, and none of the underlying documents, the holding that UTAH LIGHTHOUSE was not a protectable mark seems problematic at best.
Comments enabled.
May 05, 2008
%) Greatest Commercial Parodies Of All Time
Boing Boing: 50 Greatest Commercial Parodies Of All Time
Vuitton v Darfur T-Shirt con't
Some websites are reporting that Vuitton actually sued the artist who created the Darfur t-shirt (background here), soemthing I have been unable to confirm. Here is an interesting analysis from a brand analyst from Forrester Research as to what Vuitton's options are in a situation like this.
April 29, 2008
Vuitton v Darfur T-Shirt
Counterfeit Chic: "Copying For Charity"
September 24, 2007
Separation of Church and Brand?
The Seattle Trademark Lawyer has a post on Kerusso, a seller of Christian-themed t-shirts. Several of its reported best-sellers are based on well-known trademarks. STL points to two Ninth Circuit cases, the Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1405 (9th Cir. 1997), and the Barbie Girl case, Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 901 (9th Cir. 2002), to conclude that these are likely infirnging uses. To put it simply, the shirt uses the Deere logo (for example) not to mock Deere but to get attention, and therefore is not a permissible parody.
However, to refer out loud to the elephant in the room, a trademark owner protesting such a usage runs the risk of being seen as anti-First Amendment and anti-religious expression. This can be handled in part by emphasizing that Jesus Christ is not a named party to an infringement suit but Kerusso Activewear, Incorporated, would be.
July 02, 2007
Carol Burnett Lawfully Placed In Awkward Ridiculous Crude and Absurd Situation
Prof Patry: I Was a Maid In A Porno Store II Family Guy does 'joke' depicted above, Carol Burnett sues, judge does good fair use analysis, Family Guy prevails.
May 21, 2007
Must See For Those Interested In Parody and Political Speech
HT Talking Points Memo.
April 19, 2007
Parody Different
Discuss, using the phrases 'Cat Is Not In The Hat", "Mastercard v. Nader" and "Weird Al Yankovic" in your answer.
UPDATE: Friend of the blog James G. points out that the 'Here's to the crazies' commercial has been done before. Same question as above. As for me, I think both analyses would come out the same way but one parody would be easier to defend than the other.
April 08, 2007
March 21, 2007
Parody of Political Discourse
February 13, 2007
An Ironic Demand Letter
First Life bills itself as a 3D Analog World. It makes ambitious claims about the users' ability to 'work, reproduce and perish.' There does not seem to be a terms of service agreement, suggesting that users would have to rely upon the court system for intellectual property protection, a distinct disadvantage compared to, for example, Second Life.
Among the advanced features of First Life is a link at the bottom of its page labled 'Comments or Cease and Desist Letters." One user has already availed itself:
"This notice is provided on behalf of Linden Research, Inc. (“Linden Lab”), the owner of trademark, copyright and other intellectual property rights in and to the “Second Life” product and service offering, including the “eye-in-hand” logo for Second Life and the website maintained at http://secondlife.com/. It has come to our attention that the website located at http://www.getafirstlife.com/ purports to appropriate certain trade dress and marks associated with Second Life and owned by Linden Lab. That website currently includes a link in the bottom right-hand corner for “Comments or cease and desist letters.”
As you must be aware, the Copyright Act (Title 17, U.S. Code) contains provisions regarding the doctrine of “fair use” of copyrighted materials (Section 107 of the Act). Although lesser known and lesser recognized by trademark owners, the Lanham Act (Title 15, Chapter 22, U.S. Code) protecting trademarks is also limited by a judicial doctrine of fair use of trademarks. Determining whether or not a particular use constitutes fair use typically involves a multi-factor analysis that is often highly complex and frustratingly indeterminate; however a use constituting parody can be a somewhat simpler analysis, even where such parody involves a fairly extensive use of the original work.
We do not believe that reasonable people would argue as to whether the website located at http://www.getafirstlife.com/ constitutes parody – it clearly is. Linden Lab is well known among its customers and in the general business community as a company with enlightened and well-informed views regarding intellectual property rights, including the fair use doctrine, open source licensing, and other principles that support creativity and self-expression. We know parody when we see it.
Moreover, Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody. Indeed, any competent attorney is well aware that the outcome of sending a cease-and-desist letter regarding a parody is only to draw more attention to such parody, and to invite public scorn and ridicule of the humor-impaired legal counsel. Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception.
In conclusion, your invitation to submit a cease-and-desist letter is hereby rejected.
Notwithstanding the foregoing, it is possible that your use of the modified eye-in-hand logo for Second Life, even as parody, requires license from Linden Lab, especially with respect to your sale of goods with the parody mark at http://www.cafepress.com/getafirstlife/. Linden Lab hereby grants you a nonexclusive, nontransferable, nonsublicenseable, revocable, limited license to use the modified eye-in-hand logo (as displayed on http://www.getafirstlife.com/ as of January 21, 2007) to identify only your goods and/or services that are sold at http://www.cafepress.com/getafirstlife/. This license may be modified, addended, or revoked at any time by Linden Lab in its sole discretion.
Best regards,
Linden Lab
HT Jessica.
December 26, 2006
Can't Leave My Work In The Office
My son asked me to order a "Get Fuzzy" book for him and I wound up blogging.
November 29, 2006
Barney's Lawyers Pays Settlement After Using His Words
News.com: "Barney's legal threats end up extinct" (Barney's law firm settles suit brought by EFF on behalf of Barney commentary site - link to settlement agreement in article). Background here.
November 20, 2006
One Bank, One Card, Two Demand Letters
NY Times article on the demand letter
A website named StereoGum hosted this video and attorneys for Universal sent a demand letter and posted a courtesy copy in the comments thread as well as a copy of Universal's letter to Bank of America (See the November 13 comments here for the text of the letter).
This is a pretty interesting fact pattern. The Times article quotes the singer to the effect that this was on the approved list of songs, so what is that about (maybe BA paid licensing fees?). If you buy into the 'parody uses the original work to comment upon the original work' theory, is this song a parody? If you don't buy into that theory, is this a parody? If someone filmed this without BA's approval, and uploaded it to YouTube without BA's approval, then does BA have exposure?
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October 06, 2006
Doctrine Of Eternal Fair Use
Madisonian.net discusses whether Nietzsche Family Circus, which pairs a randomized Family Circus cartoon with a randomized Nietzsche quote, is fair use.
September 24, 2006
Parodies In Virtual Reality
August 28, 2006
[Fill In Barney The Dinosaur Joke Here]
What can be said about Barney the Dinosaur that hasn't already been said?
August 16, 2006
Film Class: Vonage Parodies
NY Times: "Agencies Are Watching as Ads Go Online."
You will not be able to get the "Woo Hoo" song out of your head if you watch these consecutively.
This seems to be an authorized Vonage 'People Do Stupid Things" commercial
Here is a self-described 'mockery' of the Vonage ad:
Another, labeled 'Vonage Parody"
Did Toyota authorize this one?
Political speech (Zarqawi doing stupid things):
Painful footage in this one:
July 28, 2006
Coulrophobia, Continued
Eric Goldman on more coulrophobia.
June 26, 2006
I Can't Define Parody But I Know It When I Download It From YouTube
March 25, 2006
March 13, 2006
Mind The Gap Netween Commercial and Non-Commercial
IPKat discusses this.
February 14, 2006
WSJ ON Parody and Coulrophobia
February 06, 2006
Parody Gone Wild; Milk Gone Bad
PETA created a parody of the GIRLS GONE WILD video style to make a statement about milk. Girls dancing in bars raise their t-shirts to display udders. ABC refused to show it (as an aside, it's interesting that PETA was prepared to spend $2.2 million).
The banned MILK GONE WILD commercial is available here. It's work-safe, depednign on where you work.
This a great fact pattern, made greater by the fact that PETA is selling MILK GONE WILD merchandise (including the Cafe Press specialty, the thong).
Here's an over-simplistic Cat Not In The Hat analysis: PETA borrows Girl Gone Wild's style of expression to comment on a third party, the Milk Industry.
Here's a quick 'Priceless' analysis: PETA's commercial comments on the 'Girl Gone Wild' 'mind-set' in addition to commenting on the Milk Industry.
Bonus issue: note the AIM running guy with udders used on the mikgonewild.com website.
Bonus bonus issue: Is the GIRLS GONE WILD mark famous and eligible for dilution protection?
January 16, 2006
If You Are A Canadian IP Attorney . . .
. . . we would be happy to hear your views on the agreement described in this NY Times article, that bars use of footage from political debates on parody shows.
December 16, 2005
Jones Day Lawyer Target Of Spoof Site, Wins Injunction
November 29, 2005
Coulrophobia In International Affairs
Kazakhstan, taking the bait, has protested comedian Sacha Baron Cohen's portrayal of Borat, a fictitious Kazakh.
November 08, 2005
Panexa: Ask Your Doctor For A Reason To Take It
You can't make this stuff up. A variant of the parody defense is the argument that the target of the parody doesn't exist. More on a demand letter sent to a fictitious company here.