Plaintiff provides seminars promoting its executive leadership methodology.  Seminar participants received a copyrighted manual, and sign a non-dsclosure agreement.  Defendants operate a website and publish materials as professional ‘de-programmers’  They obtained the manual from a former seminar customer, and published a critique, leading to published reports that plaintiff was a cult.  Plaintiff sued for copyright infringement and trademark disparagement.

Second Circuit:  Although it might have been the case that defendant obtained a copy of plaintiff’s work in bad faith, such bad faith is not determinative in the fair use analysis, especially as other fair use factors tended to favor defendant.   Trademark disparagement count dismissed as defendant’s use of mark was not part of competitive activities.

NXIVM and First Principles v. The Ross Institute, 03-7952 (2d Cir April 20, 2004).

Do po-up ads cause consumer confusion?  Let’s say a computer user is viewing the website of Superior Morgage Broker Services, and a window appears advertising say, Vanguard Mortgage Broker Services.  Whether the user is confused as to some conection between the services advertised in the main window and the identical services advertised in the pop-up window, may depend on whether the user is aware that pop-up adware is installed on his or her computer.  The extent to which people know (1) that such software is installed and (2) what such software does, is a contended point in cases such as 1-800-Contacts v. WhenU and Wells Fargo v. WhenU.

Both the NY Times (free sub required) and the Wall Street Journal have articles today on spyware and adware.  They both quote Avi Naider, CEO of WhenU as indicating that WhenU’s adware has been installed on 100 million, and was no longer active on 80 million (we don’t know the time frame).  Mr. Naider asserts that this statistic indicates that the software was user-friendly and easy to remove.  The Journal immediately notes that the ‘high’ uninstall rate may also “reflect the disdain with which most consumers view the technology.”

What else may the statistic suggest?  Questions for the survey experts arise:  How does an 80% uninstall rate compare to those of other programs?  Is the uninstall rate evidence that people either didn’t know that the software was initially installed or, if they did know, that they didn’t know what the software did?

 

As an IP lawyer I should be cheered by this CNN.COM story about SCO and its fight against Linux (background here), however when reading this quote from an embittered SCO investor who believes:

“. . . SCO needs to hire executives with more savvy about intellectual property cases and spend less money on its Unix products . . .”

well, I understand what he’s saying, but it still sounds funny.

Also, the issue of champerty arises.

 

 

Odd:  The operator of the RUGLES.COM blog put RUNNING SHOES into Google and received the prompts depicted above, including DID YOU MEAN NIKE RUNNING SHOES and several other prompts identifying brand names. 

It’s a good thing Rugles took the screen shot above because no one can reproduce the results, suggesting that Google might have been conducting an unannounced test for a short period of time.  It’s interesting to ponder the ramifications of Google selling keyword prompts.  This test involves a prompt for specificity in response to a general search term (NIKE RUNNING SHOES as a prompt for RUNNING SHOES) but the technology would seem to allow for any type of prompt (WHY NOT TRY REEBOK INSTEAD? as a prompt for NIKE).  Well, I see issues with that.

Meanwhile, KARTROO is already deploying an interesting integration of brand directory and search engine.

UPDATE: It has been pointed out that Google could merely be adding its version of the “refine your search” and “related search” function found in Lycos and Yahoo respectively, in that the prompt supplies the most common search terms which incorporate the phrase.  On Yahoo, the first two suggestions for RUNNING SHOES are NIKE RUNNING SHOES and WOMENS RUNNING SHOES.

It’s certainly possible that this is what Google intends.  The three keyword prompts for running shoes, NIKE, NEW BALANCE and BROOKS, are the most searched brands using the term RUNNING SHOES, at least on Overture. 

 

Although “. . . pert noses, bow lips and large widely space eyes are standard doll features,” Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir. 1966),  someone’s particularized expression of pert noses, bow lips and large widely spaced eyes (such as that of the Barbie doll), may be protectable.  The Court did not reach the issue as to whether defendant’s Rockette doll infringed the copyright in Mattel’s Barbie doll.

Mattel v. Goldberg Doll Manufacturing and Radio City Products, 02-9042 (2d Cir. April 16, 2004)

Rockette doll photo from here.

Responding to Colin Powell’s use of the phrase “The Pottery Barn Rule” to refer to the rule “You break it, you own it,” Williams-Sonoma, parent of Pottery Barn, has issued a press release stating that its policy is in fact to write-down breakage.  I’m serious.

Update: It has been brought to my attention that the State Department, showing more concern for the breakables in Pottery Barn than the US Government did for the breakables in the Iraqi National Museum, actually issued a statement yesterday indicating that it did not intend to cast aspersions on the Pottery Barn mark.