Honeywell has lost its motion for a preliminary injunction regarding Eco Manufacturing’s distribution of a round thermostat.  Honeywell’s own thermostat had been the subject of a long-expired utility patent, and thus the round shape of the dial was functional, and not protectable as trade dress.

Eco Manufacturing v. Honeywell, 1:03-cv-0170 (S.D. Ind. June 20, 2003).

Via the NY Times, “The Marketing of No Marketing,” about the relative success of PABST BLUE RIBBON’s no advertising no-hype approach.  Although the article refers to the NO LOGO movement and eponymous book by Naomi Klein, the success of PABST seems to illustrate less and anti-brand movement and more what type of brand positioning resonates during a recession.  These PABST drinkers like the free t-shirts.

The Sixth Circuit has denied Tiger Woods’ appeal of a decision dismissing his trademark and right of publicity claims against an artist who had included Woods’ image in a lithograph entitled “Masters of Augusta” (above).  In pertinent part:

” . . .we find that Rush’s work does contain significant transformative elements which make it especially worthy of First Amendment protection and also less likely to interfere with the economic interest protected by Woods’ right of publicity. Unlike the unadorned, nearly photographic reproduction of the faces of The Three Stooges in Comedy III, Rush’s work does not capitalize solely on a literal depiction of Woods. Rather, Rush’s work consists of a collage of images in addition to Woods’s image which are combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of Woods’s achievement in that event. Because Rush’s work has substantial transformative elements, it is entitled to the full protection of the First Amendment. In this case, we find that Woods’s right of publicity must yield to the First Amendment.”

ETW Corporation v. Jireh Publishing, No. 00-3584 (6th Cir. June 20, 2003)

 

Viacom lost its appeal of the SPIKE TV case before the Appellate Division of NY State Supreme Court yesterday.  Viacom alleges that it has wasted $17 million in promotional expenses as a result of the injunction.  Two reactions: first, I wouldn’t be thinking about Spike TV at all if it weren’t for this case.  Second, Spike Lee’s name is now inextricably linked with that of SPIKE TV.

If you have comments on this case that you would like to share with the world, anonymously or otherwise, please send them to mailto:marty@schwimmerlegal.com

First comment in:  Anonymous of Southern Westchester writes in to say that there are 189 registrations or pending applications on the US registry containing the element SPIKE.

Anonymous writes: This will turn out not to be the Summer of Spike after the NY COA does the right thing.

Anonymous writes: Spike Jonze is a better director.

An anonymous elevator in a mid-town Manhattan skyscraper notes through the Captivate Elevator network that its poll suggests that 78% of respondents don’t believe that plaintiff has a meritorious case (although looking at the questions asked I’m not sure this is an admisable survey).  This is the first time I’ve ever cited an elevator on this blog.

TV Guide, via The Business Lawyer, says that Spike Lee is vain to think that the network is about him.

An anonymous famous trademark lawyer notes that the reported $500,000 bond is a tad short of the reported $17 million Viacom claims to have lsot as result of this ‘misunderstandng.’

This would have been an interesting case.  Weight Watchers had sued a UK Supermarket for publishing ” Weight Watchers points” on its packaging – indicating to dieters how many ‘points’ that particular meal would use dieter’s allotment of points.  But the case  is reported to have been settled.

Weight Watchers success story, Fergie, depicted right.

A Third Circuit decison interpreting the advertising injury provision of a commercial general liability insurance policy, holding that the insurer is obligated to pay for the insured’s defense against trademark infringment involving misuse of a domain name.  A plainitff had alleged that the insured had infringed its trademark in MAGAZINES.COM by utilizing MAGAZINE.COM to send traffic to an adult entertainment site.

Held: The allegation of mis-use of the domain name constitutes misappropriation of an advertising idea or style of doing business under Pennsylvania law..

Cat Internet Services v. Providence Washington Insurance Co., No. 01-4166 (3d Cir June 17, 2003) (note: this decision came out in November as non predental and has now been made precedental).

A previous piece on advertising injury insurance here.