I apologize for not blogging this sooner. Mattel sold (in 2006) a series of toy cars named MOTOWN METAL. You can buy these ‘new’ on Amazon, but I’m not sure if they’re still in stores. Pictured above is the 1970 Chevelle. My parents had a ‘Malibu Gold’ ’69 Chevelle and it did not look like this. The Chevelle was discontinued in 1977. Anyway, Mattel filed for MOTOWN METAL and UMG, owner of Motown Records opposed on confusion and dilution grounds, winning on both (decision below). I agree with TTABlog’s analysis, in that we’re not so sure about this.

Mattel has now appealed to the Central District of California, adding a request for a declaration of non-infringement (which is interesting, as the cars appear to have been on the market since 2006).

There are marks that are famous but still have alternate meanings that are triggered by context (TIME and APPLE are the first two I could think of in a hurry). Then there are completely unique marks that do not have alternate meanings and are not dependent on context.

These were MOTOWN METAL toy cars, where Motown is a nickname for Detroit, where cars made of metal come from. What if these were TEENAGE MUTANT TURTLE METAL toy cars (or, just to rib UMG, STAX METAL toy cars).

Image from here.

 Ttab Motown Metal(function() { var scribd = document.createElement(“script”); scribd.type = “text/javascript”; scribd.async = true; scribd.src = “http://www.scribd.com/javascripts/embed_code/inject.js”; var s = document.getElementsByTagName(“script”)[0]; s.parentNode.insertBefore(scribd, s); })();

I’m a little skeptical that the Velvet Underground’s VELVET UNDERGROUND album is the 13th best rock album of all time, so defendant, Andy Warhol Foundation, should probably deny that allegation.  I’m not a big Nico fan. Nevertheless, a strong album (“Heroin” for example, is a decent song).  Any way, the Velvet Underground paid Andy Warhol $1500 to design the album cover and it has since become one of the most famous album covers of all time.  I still have my copy (btw, if you want to recommend a USB turntable, please do so using the comment section).  VU alleges that the banana design has achieved secondary meaning.  The Warhol Foundation has been licensing the design to third parties.

 Vlevet Underground v Warhol(function() { var scribd = document.createElement(“script”); scribd.type = “text/javascript”; scribd.async = true; scribd.src = “http://www.scribd.com/javascripts/embed_code/inject.js”; var s = document.getElementsByTagName(“script”)[0]; s.parentNode.insertBefore(scribd, s); })();

We agree with applicant that consumers who do not
speak Italian will perceive LAPELLE to be an arbitrary term
without any meaning associated with leather for furniture.
However, Italian speakers would understand LAPELLE to mean
“the leather.” Without the space, LAPELLE is equivalent in
sound, meaning and commercial impression to LA PELLE which
means “the leather” and, therefore, it is merely
descriptive of leather for furniture identified in the
description of goods.

 

Ttab LAPELLE Foreign Equivalents(function() { var scribd = document.createElement(“script”); scribd.type = “text/javascript”; scribd.async = true; scribd.src = “http://www.scribd.com/javascripts/embed_code/inject.js”; var s = document.getElementsByTagName(“script”)[0]; s.parentNode.insertBefore(scribd, s); })();

In which I appear on “This Week In Law” not so much defending SOPA but defending the attempt for creating remedies for the sort of ills (specifically, online counterfeiting by non-US entities) that SOPA is supposed to address. My bit starts at about the 3:00 point. As an aside, we could view a SMS crawl from viewers, and let me tell you, it was not (initially) a pro-SOPA crowd.

I taped this two weeks ago. Since that time, UMG appears to have (all the facts aren’t in yet so I’m saying ‘appears to have’) brought a bad faith DMCA notice against the Megaupload, designed not to protect its own valuable copyrights but to suppress speech (or more, probably, to fuck with people it doesn’t like – which is not an intent of U.S. copyright law).

In the run-up to the holiday season, I find myself saying to my kids “If you don’t take care of the things you have, I won’t get you new things.” I don’t really say that to them, I just think that. Well, you can say that to content lawyers as well. If the truth of the Megaupload situation turns out to be as bad as it looks, then my view is:

Screw SOPA. You’re too irresponsible to be handed new powerful ex parte tools. The bill should not be made law.

And I’m a content lawyer, and I think we need many of its provisions, so I don’t say that lightly.