So David Stein of Naiad Studios was sitting in front of the computer this week when:

“I had a friend forward the [Miss Piggy image] to me the other day, just thinking they were passing on a joke.  I just STARED at the screen, like that bad picture of you in a leisure suit from the 70’s that comes back to haunt you . . .

That piece is probably 10 years old now, I can’t recall the exact date I created it.  It did it both as a joke and as an example of using PhotoShop’s cloning tool to create “Celebrity Fake” image that was all the rage back then.  It was originally posted to a PhotoShop user’s newsgroup along with a step by step on the process.  We all had a chuckle over it.  It also reappeared on a Fake Nude newsgroup soon after that.

It’s funny that nothing ever vanishes from the Net.  It’s curious how it only now resurfaces in light of the “Tempest in a B Cup”.”

I had suspected that the image had been created prior to the Super Bowl, unlike this version of Miss Piggy, which features the nipple shield.

That’s it for nipples this week on the Trademark Blog.  As Homer said this week on the Simpsons “I’m confused, is this a happy ending or a sad ending” to which Marge replied “It’s an ending, that’s enough.”

MONTEREY JACK cheese is named after David Jacks, Monterey land owner and dairy farmer.

Via deepikaglobal.com, an Indian research institute alleges that a US company has improperly registered the name JEEVANI, a ‘fatigue-busting wonder’ developed with the help of traditional herblore of the 16,000 member Jani tribe.  However, looking at the U.S. register, the company identified in the article abandoned its application for JEEVANI (although it still uses the R in circle on its site), and another US company has filed for JEEVANI JOLT, disclaiming JEEVANI.

More on JEEVANI here.

Discussion of ‘bio-piracy’ here.

Think about the ‘diverted off the highway’ metaphor from the MovieBuff case, the diverted from the Calivn Klein shop in Macy’s’ metaphor from the Playboy case.

Then consider this discussion on IPKat of presumably permissible in-store diversion, based on this AdAge article on in-store advertising.

This AP story reports that Google banned an Adword ad keyed to ‘cruise vacation’ and ‘cruise ship’, linking to a website critical of Royal Caribbean.  The article reports that the ads themseleves did not use the term ‘Royal Caribbean.’

The DMCA requires ISPs to implement a policy that terminates access to subscribers who repeatedly violate copyright.  Part of successful implementation involves providing a means by which a copyright owner can notify an ISP of a potential copyright violation.  In Fall 1999, AOL changed the email address that it had created to receive DMCA notices.  It didn’t tell the world about that change until April 2000, so for approximately six months notices to AOL regarding copyright infringements apparently fell into the ether (they must have enjoyed the peace and quiet for six months).

During that period, an AOL subscriber allegedly violated author Harlan Ellison’s copyrights.  Ellison brought vicarious and contributory copyright claims against AOL.  AOL claimed DMCA Safe Harbor protection.  District Court agreed with AOL and dismissed the claims against AOL.

The Ninth Circuit reversed and said that if there’s no working email for notice, then there may be no working copyright protection poilicy.  Go to trial and one of the issues will be whether there should be a DMCA Safe Harbor.

Ellison v. Robertson and AOL, No. 02-55797 (9th Cir. Feb. 10, 2004).

Btw, Ellison wrote a book in 1970 called “The Glass Teat” about TV, that’s worth reading.

So, now that the judge in the Lindows case has ruled that the jury must consider whether the WINDOWS mark is a generic term, if, after trial, the jury did come to that holding, and the judge entered it, and the final appeal on every aspect of the order was over, when would the WINDOWS mark lost its protectable status?

The Miss Piggy item has become the most linked-to and viewed Trademark Blog item ever.  Sex sells, even if made of terry cloth.

Discussion continues around the blog world, such as this post from CalBlog, which argues that the Cat Is Not In The Hat case was wrongly decided.  Although CalBlog takes issue with the legal test itself, namely determining whether defendant’s parody (lawfully) comments on plaintiff’s work, or merely appropriates plaintiff’s style in order to comment about a third party subject, CalBlog also argues in effect that in that case, the finding was wrong.  Can it be argued that while certainly The Cat Is Not In The Hat commented about the OJ case, doesn’t the work comment on the limitations of a Dr. Suess worldview as well?  When ‘juvenile’ style is juxtaposed with an adult topic, do style and subject comment on each other?

Also, the next time you see a Weird Al Yankovic parody, you’ll notice that not only do his (licensed) parodies comment upon the primary work referred to, but also about an unlimited number of his other obsessions, including himself, the Amish, and food.

For further discussion of the parody defense in a trademark context, see Timbers and Huston, “The ‘Artistic Relevance Test’ Just Became Relevant:  The Increasing Strength of the First Amendment as a Defense to Trademark Infringement and Dilution,’ 93 The Trademark Reporter 1278 (Nov-Dec 2003).