Dave and Doc lobby Google to introduce a “date of first use on the Web” feature. I second that. That would be immediately useful in trademark work, where timing sometimes is everything. It wouldn’t be authoritative because of the unknown unknown “dark web” in the past (uncached web pages), but still it would be helpful.
Trademark Ramifications of Spoofing Continued
This will be interesting. Madonna has reportedly uploaded “decoy” files to peer-to-peer networks, in order to discourage piracy. Users who believe that they are downloading Madonna’s new album receive instead a recorded admonition from Madonna herself advising the user to respect the copyright in her work (not precisely in those words).
When the record companies began ‘spoofing’ the P2P networks, I wondered aloud what precisely might happen if it became known that an artist was disseminating low-quality or no-quality versions of one’s own work under one’s own trademark, and I referred to one possibility as self-tarnishment.
Well, from a branding point of view (which is what I had in mind when I said what I said), we are seeing something of a backlash against Madonna. Look at the comment thread here filled with threats never to buy her records again. Also, her website has been hacked. Whether she makes this back with re-gained sales, hard to tell.
The trademark analyis is more complex. This assertion that Madonna is possibly abandoning her mark may go too far. In any event, how Madonna could be said to abandon her mark to the point that she couldn’t prevent another recording artist from naming themselves Madonna is hard to imagine.
The trademark analysis may hinge on the legality of a ‘normal’ transaction on a peer to peer network and the user’s expectations. When someone is downloading a copy of an album from a peer to peer network, and they believe that they are downloading an unauthorized copy of a copyrighted work (or have an objectively unreasonable belief that they are authorized to download the work), is that transaction even considered to be lawful commerce? Does the law protect infringers from being deceived?
On the other hand, if these P2P transactions are legal, well, then, the spoofer might have some problems, trademark and otherwise.
More on the Relationship Between Search Engines and Domain Names
Plasticbag.org rebutting arguments that search engines will reduce the importance of domain names. Many accurate observations, but, in my view, they better support the argument that search engines will not decrease the importance of brands.
The Wine Known As Two Buck Chuck
An attentive reader, inspired by the Spaldeen piece below on protectable rights in a public’s nickname for a product, forwards this pertinent story from winebusiness.com. A $1.99 wine by Bronco Wine named Charles Shaw is popularly known as TWO BUCK CHUCK. A third-party has now come out with its own TWO BUCK CHUCK wine. Now all Blog readers will know what law governs rights created by nicknames (should it come to that),
Ironic tidbit: Speaking of nicknames adopted as trademarks, the attentive reader works at MOFO.
A Poem As Lovely As Targeted Advertising
How one man made art of Google AdWords.
Raiders Using Trademark Law To Obtain On-Field Advantage?
When read quickly, the first paragraph of this article:
“The Oakland Raiders have asked a judge to prevent the Tampa Bay Buccaneers and the Carolina Panthers from wearing their uniforms for games in California because they violate the Raiders’ trademark rights.”
suggests an absurd image.
Spalding Sells Rights in Spaldeen Business
Spalding has announced that it will sell its non-golf business to Russell Athletic. This article says that the sale will include ownership of the SPALDING name for those sporting goods, making SPALDING one of the better known split-ownership marks.
The article does not mention the SPALDEEN mark. If you grew up in New York City, then you owned a Spaldeen, period. I will not go into a maudlin reverie about stickball now but I wouldn’t mind a quick game of chinese handball. The name derived from the Noo Yawk attempt to pronouce Spalding. At some point the company woke up to the prevalence of the alternate name and acquired a federal registration for SPALDEEN covering high bounce balls.
Other companies have aquired protectable rights in nicknames for their products created by the public, COKE, HOJO, AMEX, MICKEY D’s and BIG BLUE being examples. SUNNY D is probably not an example as I doubt anyone other than a copywriter ever used that term. Usually the companies adopt those nicknames and they become plain old trademarks, sometimes they can assert rights merely on the use by the public. An excellent summary of the caselaw on the protectability of brand nicknames by the Arent Fox firm is here.
History of the Spaldeen, chinese handball and asses-up here.
Maybe Someone Had Prior Rights
TechLawAdvisor’s explanation as to why Sony dropped the SHOCK AND AWE game is dubious.
Iraqi Trademark Law
The Abu-Ghazaleh firm on Iraqi trademark law.
JessicaLynch.pfc
The domain dossier takes a string and searches the whois of the major TLDs (com, net, org, info and biz). It reveals that domains names beginning with JESSICALYNCH, PFCJESSICALYNCH and PFCLYNCH are pretty much all gone by now. Other people named Jessica Lynch (presumably) registered jessicalynch.com and jessicalynch.net previously. The rest got snapped up on April 2 or 3. A few jessica-lynches have been registered as well. The UDRP does not protect personal names as such.