Sixth Circuit seems to take an extreme view that there is no such thing as de minimis infringement of a sound recording in the context of digital sampling.   Therefore, all digital sampling is subject to compulsory licensing.  This was one of 500 counts brought against 800 defendants brought by the copyright owners of George Clinton and Funkadelic’s work.

Bridgeport Music v. Dimension Films, (6th Circuit, Sept 7 2004).

George Clinton’s Sample Some Of Disc, Sample Some of DAT here.

UPDATE:  World famous copyright lawyer Craig Mende calls in to emphasize that he agrees with the Sixth Circuit’s own observation that this holding is without precedent.  He points out that in seemingly analogous situations, such as the brief use of a photograph in a movie, circuit courts have allowed ‘de minimis’ use (Sandoval v. New Line, 147 F.3d 215 (2d Cir 1998). 

 

Straightforward case re lawful use of a trademark by an unauthorized sales/service provider.  House of Vacuums ran a yellow page ad (reprinted in the decision here) which seems somewhat common.  The name of the store, HOUSE OF VACUUMS is the dominant element, and 13 different brands of vacuums are listed.  No claims are made regarding authorization by the brand-owners.  Infringement and dilution claims by plaintiff (1 of the 13 brands listed) dismissed at summary judgment.

Scott Fetzer v. House of Vacuums, no. 03-51118 (5th Cir. Aug. 12, 2004).

Photograph of House of Vacuums here.

Ah, the summer of 2001, when trademark owners wasted time and money buying .BIZ and .INFO domain names they didn’t need and didn’t want, in the process giving interest-free loans to finance the start-up of Afilias and Neulevel.  ICANN has commissioned a report “Evaluation of the new gTLDS: Policy and Legal Issues” (Executive Summary here).  The report is thorough.

I thought this statistic was striking:

Number of UDRPs by TLD by number and by percentage of all registrations in that TLD:

11,637     .043%   .COM

1,879       .042%   .NET

253          .022%   .INFO

169          .017%   .BIZ

0              0           .AERO

0              0          .COOP

0              0          .NAME

0              0          .MUSEUM

Now you can spend sometime discussing whether the fact that .BIZ had only half of the UDRPs of .INFO proves that it had a better sunrise, but I think that those four TLDs with zero instances of cybersquatting is the much more interesting thing to focus on (ok, not really zero – .NAME had 6 ‘charter’ disputes and there were one or two eligibility disputes in the others).  Granted the total number of registrations in those four are small, but those are four TLDs with no cybersquatting, probably little to no trademark infringement, probably little to no consumer fraud, no drive-by downloads of spyware and probably little to no domain names used for spam.

And there are also new information services provided by these ‘restricted’ TLDs.  Did you know that if you type in the three letter code of an airport plus .AERO, you get that airport’s website – try LAX.AERO or JFK.AERO.  If you type in INDEX.MUSEUM you get an, uh, index of museums.

I think the way to go with TLDs is either meaningful TLDs (.AERO) with oversight, or meaningless TLDs (random characters) without.  The problem is that .COM, .BIZ and .INFO are in the middle – without oversight the meaningful (.COM) becomes misleading.  How can .COM be a zone for reliable ecommerce when you can obtain a domain name with fraudulent contact data?

Look at those numbers again.  Compare the TLD with 11,000 instances of cyberpiracy to those with zero.  Where would you feel more secure giving your credit card number?

“The question raised in this case is whether the First Amendment protects a misleading use of plaintiffs’ marks in domain names to attract an unwitting and possibly unwilling audience to [defendant’s] message.  Use of a famous mark in this way could be seen as the information superhighway equivalent of posting a large sign bearing a McDonald’s logo before a freeway exit for the purpose of diverting unwitting travelers to the site of an antiabortion rally.”

from  Coca Cola ,et. al. v. Purdy, Civ. No. 02-2894 (8th Cir. Sept. 1 2004).  Note: The photo above is from a billboard company here and is not related to this case in any way.

Via Guiding Rights, M. Scott Donahey, “‘Distinctive’ and ‘Famous’ – Separate Requirements Under The Federal Trademark Dilution Act?“

From the conclusion:

McCarthey’s position that “distinctiveness” and “fame” are synonymous terms does not square with the plain language of the statute and with the way that the terms are used in the Trademark Law Revision Commission Report.  The Second Circuit’s view treats the statutory language respectfully and fully reflects the concepts expressed in Frank Schechter’s pioneering work.  And while the Supreme Court has yet to completely weigh in on this disagreement, it’s thumb is already on Justice Leval’s side of the scales.  The FTDA appears to require proof of both fame and distinctivenss.