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"Seeing Fakes, Angry Traders Confront EBay." Discussion of Tiffany v. EBay case re intermediate liability.
A case to read in the meantime: Fonovisa v. Cherry Auction, 76 F.3d 259 (9th Cir. Jan. 25, 1996).
Texas A&M has been using 12th MAN since 1922, the Seattle Seahawks have only been using the mark since 1984. What concerns me the most is that Texas A&M students sway in unison, making the stadium shake, That can't be safe. Don't they know that soldiers break lock step when crossing a bridge? (google 'bridge synchrony').
The SUPER BOWL is the official professional sports championship of the Trademark Blog.
March Madness post here.
Threepeat post here.
Discussion by Saatchi Gallery here.
Commonlymistyped.com. 'Top Internet Searches and The Corresponding Common Mistyped Queries.'
Strange case. Website owner sues Google for copyright infringement based on its practice of providing links to cached versions of his website. There is no explanation why author did not use tages to tell Google to exclude his site. The Court pointedly commented that if plaintiff had merely used such tags, there would be no suit. Held: Google's cache constitutes fair use.
Why was this suit brought? Reader Henry from NYC points us to page 24 of the decision: "Field decided to manufacture a claim for copyright infringement against Google in the hopes of making money from Google's standard practice."
Field v. Google, CV-S- 04-0413 (D. Nevada Jan 12 2006).
UPDATE: EFF commentary on case.
I suppose that this disclaimer should be applied to most of my postings but to this one in particular: I point to items of interest that usually don't provide all the information necessary to come to any sort of legal conclusion (in other words I'm not saying who's right and who's wrong):
Here is Adaptive Path's home page.
This post from Stop Design suggests that it created that page in 2003.
Here's a Flickr page showing what until recently was the home page of ColoradoLandRush.com.
Here is the home page of Site Surfer.com which appears to indicate that ColoradoLandRush.com unveiled its site in June 2005. Important note here: some of the comments in the Flickr page suggest that SiteSurfer designed ColoradoLandRush's site and point out the irony that Sitesurfer has worked with some IP sites. I'm not so sure SiteSurfer designed the site - it may merely be the hosting company.
Here is the home page of ColoradoLandRush.com today that states:
'We believe we have been the victims of US copyright law infringement with our Web site.
We have pulled the Web site and will launch a substitute in the next several hours as we investigate this issue.'
Practice pointer - Reps and Warranties and Worries
When you pay a vendor to provide you with material that may be subject to intellectual property protection, you need at least two things - a representation that the work is not subject to ownership by third parties; and indemnification that the vendor will pay for third party claims (this is without regard to how the parties determined ownership of the IP).
These reps and warranties don't protect you completely from worry. Free lance creators have, how shall we put it, views of 'fair use' that don't jibe with the law - they may completely believe in their heart of hearts that the product they deliver is their's to sell, and be quite wrong about it.
Second, indemnification from a free lance creator may not be worth much.
What else can you do? (1) do your own due diligence that the work you purchase is not a copy of someone else's (difficult); (2) work with reputable contractors (expensive); (3) maintain IP protection insurance (difficult and expensive).
Second Practice Pointer - Hidden Tags
A principal at Adaptive Path was asked how they spotted the second comer. He replied: We found it by searching on the google for "Adaptive Path" - since all the alt tags in their graphics still have our name in them, they're showing up on the first page of results. Nice!
Map makers used to put imaginary towns on their maps; directory publishers listed fake entries; software coders add (useless) commands or comments. The reproduction of these hidden tags by a third party may be evidence of wholesale copying.
Use unique tags in your source code and search for them on search engines.
Copyfight on the re-branding of Jane Austen.
Prof Patry on Tom Waits on those who mimic Waits for profit.
Trivia: Which Tom Waits song contains the lyric: "Change your life, change into a 9 year old Hindu boy"?
Answer here.
NY Times article by David Pogue: 'Google Video: Trash Mixed With Treasure.'
Background discussion in YouTube here.
Removal of a trademark logo and link is not 'removal of copyright management information' as barred by the DMCA. The District Court for New Jersey dimissed a copyright claim, interpretating 'copyright management information' as being part of an automated system, not part of a manual system (such as affixation of a copyright notice).
IQ Group v. Weisner Publishing, 03-5221 (D NJ Jan. 10, 2006) (via Rutgers, via BNA).
YouTube.com provides short video downloads. It reportedly receives 8000 new videos a day. A lot of these videos are mash-ups of copyrighted material. A favorite in my house consists of the characters from Naruto singing the Charlie and the Chocolate Factory song.
Many of the videos on YouTube (and Google Video) are amateurish (in good and bad senses of the word) and have little to no commercial value. However, according to this article from Om Malik, both sites may be conduits for infringing copies of the sort of short videos suddenly monetized by the video iPod (both sites have copyright policies in place).
This should be interesting.
We've run several items on registry-watchers who speculate on coporate moves based on trademark filings. This week there is coverage of Apple's application on MOBILE ME (from which it is inferred that Apple will bring out an IPOD phone). Some corporations deliberately file trademark applications in the 'dummy' names to frustrate this practice (See discussion here). Apple, for whatever reason, filed its first application for MOBILE ME in Hong Kong back in July, claiming the July priority date in the U.S. pursuant to the Paris Convention.
. . . 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.
Via Kottke, a Washington Post article on protection of recipes
One should distinguish between a recipe, a textual rendering ofa recipe, and a compilation of recipes. Publications Intl. v. Meredith, 88 F.3d 473 (7th Cir. 1996) dealt with alleged infringement of a recipe book:
"The identification of ingredients necessary for the preparation of each dish is a statement of facts. There is no expressive element in each listing; in other words, the author who wrote down the ingredients for "Curried Turkey and Peanut Salad" was not giving literary expression to his individual creative labors. Instead, he was writing down an idea, namely, the ingredients necessary to the preparation of a particular dish. "[N]o author may copyright facts or ideas. The copyright is limited to those aspects of the work--termed 'expression'--that display the stamp of the author's originality." Harper & Row, 471 U.S. at 547, 105 S.Ct. at 2223. We do not view the functional listing of ingredients as original within the meaning of the Copyright Act.
Nor does Meredith's compilation copyright in DISCOVER DANNON extend to facts contained within that compilation. As the Supreme Court stated in Feist: Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted. A factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement. In no event may copyrights extend to the facts themselves. Feist, 499 U.S. at 350-51, 111 S.Ct. at 1290. The lists of ingredients lack the requisite element of originality and are without the scope of copyright. The Copyright Office itself has stated that "mere listing[s] of ingredients or contents" are not copyrightable. 37 C.F.R. s 202.1. The next question is whether the directions for combining these ingredients may warrant copyright protection.
The DISCOVER DANNON recipes' directions for preparing the assorted dishes fall squarely within the class of subject matter specifically excluded from copyright protection by 17 U.S.C. s 102(b). Webster's defines a recipe as: a set of instructions for making something ... a formula for cooking or preparing something to be eaten or drunk: a list of ingredients and a statement of the procedure to be followed in making an item of food or drink ... a method of procedure for doing or attaining something. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (Merriam-Webster 1986). The recipes at issue here describe a procedure by which the reader may produce many dishes featuring Dannon yogurt. As such, they are excluded from copyright protection as either a "procedure, process, [or] system." 17 U.S.C. s 102(b).
Meredith fashioned processes for producing appetizers, salads, entrees, and desserts. Although the inventions of "Swiss 'n' Cheddar Cheeseballs" and "Mediterranean Meatball Salad" were at some time original, there can be no monopoly in the copyright sense in the ideas for producing certain foodstuffs.
Nor can there be copyright in the method one might use in preparing and combining the necessary ingredients. Protection for ideas or processes is the purview of patent. The order and manner in which Meredith presents the recipes are part and parcel of the copyright in the compilation, but that is as far as it goes. As Professor Nimmer states: This conclusion [i.e., that recipes are copyrightable] seems doubtful because the content of recipes are clearly dictated by functional considerations, and therefore may be said to lack the required element of originality, even though the combination of ingredients contained in the recipes may be original in a noncopyright sense. 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT s 2.18[I], at 2- 204.25-.26 (May 1996)."
IPKat on Estate of Picasso failing to block applicaton for PICARO for vehicles (prevailing party depicted above).
Patry: In Praise Of Imitation.
Atrios is the pseudonym for a blogger who writes for the popular Eschaton blog. Three times today he posted critical comments of Arlen Specter and ended all of them by providing Specter's contact info and the exhortation that his readers call Specter and ask him provocative questions.
If many people called Specter and ask him provocative questions, Specter may well be annoyed.
Does Specter have a cause under the new Intent to Annoy law (that he had a hand in drafting)? Can he force Atrios to testify as to his 'intent'?
Atrios provides a link to what he says is his real name. Is that a complete defense? Does Atrios have to forego anomynity because of this law?
More on Intent to Annoy here from Professor Volokh, (emphasizing that for purposes of anti-stalking laws, one-to-one communications such as phone and emial, are qualitatively different from one-to-many communications, such as websites.
A TV Ad linking Congressman DeLay was pulled after threat of legal action by the Congressman, alleging that the ad contained falsehoods. Via Chron.com.
There is a rumor that Leo Stoller, in the name of Sentra Industries, has filed upwards to 275 extension requests over the past few months to oppose recently published applications. I've seen one such request, and it provides a telephone number to call if you want to send money to XYZ Brand Licensing, where XYZ is part of the published mark. And XYZ doesn't appear on Stoller/Rentamark's 20 page list of the trademarks it purportedly owns.
The TTAB charges $300 in filing fees per class per opposition so good luck on those 275 oppositions.
Question for discussion: What to do? One attorney said to me: The TTAB won't want to intervene because they're not in a position to decide which if any of the 275 are legit.
I agree that the TTAB may not be in a position to take dispositive action for this reason. However, isn't it possible that among these 275 are applicants who don't read the Trademark Blog or TTABlog, and don't know the background, and may cough up money? Based on what we know of judicial decisions against Stoller in the past, we have a reasonable apprehension regarding these requests for payments.
The Trademark Office is the government agency tasked with the administration of the trademark system, and it may be argued that within its duties is an obligation to protect applicants from this sort of thing.
At a minimum, could the TTAB send an informational bulletin to applicants who have received extension requests from Sentra?
UPDATE: I am told that as of January 10, recent filings have approached 300. Also, some requests have been filed in the names of Central Mfg. Co. or Inc.
Tech Law Advisor takes on splogs (evil robots who re-post blog content word for word to create a pretense for running keyword ads), asking for much less than the one triillion dollars penalty I had proposed.
A new anti-cyberstalking law has the following language:
Whoever...utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both.
Some commentators have raised concerns that the language could be used to stifle critical speech (as in a pseudonymous blogger urges readers to take some act calculated to annoy a public figure). Others point out that the language tracks that of state statutes.
This is not my area of law and I defer to First Amendment lawyers out there. However, my immediate reaction to the language is the lumping together of all means of communications over the Internet. I have been the subject of 'harrassing language' via website, email and instant message (what can I tell you, I make friends wherever I go), and the targeted nature of email and IM make a difference.
Via Businessofbaseball.com, via May It Please The Court, a complaint filed by CBC, a vendor of rotisserie (or fantasy) league statistics software and services, against Major League Baseball. Fantasy league sports involve fans drafting their own teams of (real) players and competing based on the statistics of those players. Some media, such as USA TODAY and Sporting News, will administer leagues for readers, and CBC provides statistics for them. CBC had had a license to use the names of the players, but then the players union signed an exclusive contract witl MLB, which did not complete a license with CBC. CBC now seeks a judgment that it is not infringing MLB's rights.
From 43(B)log:
'Plaintiff . . . makes aftermarket leather seat covers for many different kinds of cars . . . Defendant Nissan has an approved aftermarket leather program (ALP) for some Nissan models, allowing Nissan dealers to buy aftermarket leather from approved vendors for installation by the vendors.
In 2003, in response to new federal air bag safety standards, Nissan began installing an 'advanced' air bag in some cars. This air bag uses a pressure sensor in the seat to detect whether a child or an adult is in the front passenger seat and thus turns off the passenger-side air bag when a child is present. Nissan soon decided to exclude cars with the advanced air bag from its ALP, based on concerns that installation of aftermarket leather could cause an air bag malfunction, posing a safety hazard. Nissan didn't conduct any tests to see whether this was true."
Because there will be a lot of traffic for GOOGLE CUBE and GOOGLE PACK?
IPOD v. SPODRADIO in Germany, via The Alarm Clock, hat tip Jay. Bonus reference to Caveman Lawyer in article.
Third Circuit case on reverse confusion: Freedom Card v. JPMorgan Chase. Small credit card issuer targeting sub-prime market uses FREEDOM CARD. Slightly after it ceases use Chase adopts CHASE FREEDOM for gas station-oriented credit card. Third Circuit affirms District Court holding of no likelihood of confusion.
(1) You have to live with your decision to adopt a weak mark.
Plaintiff had made a 'crowded field' argument in obtaining its registrations, specifically it had entered evidence of widespread third party use of the FREEDOM element. When you make arguments that part of your mark is weak, you consign yourself to an extremely narrow field of protection, making results like this likely.
(2) Third Circuit test for reverse confusion:
In the typical case in which there is a claim of
reverse confusion, a court should examine the
following factors [in determining] whether or not
there is a likelihood of confusion:
(1) the degree of similarity between the owner’s
mark and the alleged infringing mark;
(2) the strength of the two marks, weighing both
a commercially strong junior user’s mark and a
conceptually strong senior user’s mark in the
senior user’s favor;
(3) the price of the goods and other factors
indicative of the care and attention expected of
consumers when making a purchase;
(4) the length of time the defendant has used the
mark without evidence of actual confusion
arising;
(5) the intent of the defendant in adopting the
mark;
(6) the evidence of actual confusion;
(7) whether the goods, competing or not
competing, are marketed through the same
channels of trade and advertised through the same
media;
(8) the extent to which the targets of the parties’
sales efforts are the same;
(9) the relationship of the goods in the minds of
consumers, whether because of the near-identity
of the products, the similarity of function, or
other factors;
(10) other facts suggesting that the consuming
public might expect the larger, more powerful
company to manufacture both products, or expect
the larger company to manufacture a product in
the plaintiff’s market, or expect that the larger
company is likely to expand into the plaintiff’s
market.
(3) Third Circuit on Bad Intent by Junior User For Reverse Confsuion:
[Plaintiff] attempts to advance that contention by correctly
noting that the intent inquiry in a reverse confusion case differs
from an intent inquiry in a direct confusion case. However,
[Plaintiff]’s argument is misleading. As noted earlier, intent to
confuse is relevant to both reverse confusion and direct
confusion. A&H V, 237 F.3d at 232. The difference is that the
tenor of the intent to confuse evidence changes from the
deliberate intent to palm off or exploit the goodwill of the senior
user’s mark (deliberate confusion), id. at 225-26, to the
deliberate intent to push the senior user out of the market
(reverse confusion). Id. at 232.
Via USA Today, via Snark Hunting, the 100 most common words in blog names.
Amsterdam District Court holds that Armani shoe infringes Jan Jansen's 'Tutti Piedi.' Via Lovell's IP Newsletter (containing photo of both shoes).
Via Prof. Patry, Aharonian v. Gonzales, pro se attack on software copyrightability, brought by patent 'advocate.'
'Minnesota Political Blogger Sued For Defamation,' via Media Law Blog.
More on the 'Last Best Place' story. Background here.
Starbucks prevails in China against infringer, via a new blog from the WSJ named, LAW BLOG, with free Eddie Murphy reference.
Wired article: "How Click Fraud Could Swallow the Internet" Discussion of click fraud, impression fraud, splogs and zombie networks, and whether cost-per-action advertising is the answer.
