The soupy IP legacy of Andy Warhol

Andy Warhol, we hardly knew you.  Then again, we knew more about you in some respects than we might have wanted to.  But on the other other hand, who knew you’d make such a mess of intellectual property concepts?

Familiarity with at least some of the general topic is assumed. Let’s start in the middle, kind of:
What’s going on here? Read More…

Reuters: Never mind.

Originally posted 2009-11-17 19:33:21. Republished by Blog Post Promoter

I am sure it was accurate, in some Ratherian sense … but it was fake, and the blogsphere did brilliantly what it does best: Caught it and called the fakers out. Kudos of a sort to Reuters for, unlike Dan and the People’s Commissariat of Propaganda at CBS, admitting the undeniable. Yes, that’s what we’re grateful for these days. Considering that outfit’s very checkered past, let’s not take small miracles for granted.

For better and frequently for worse, there is nothing like visual “proof” to convince people of something, but there is one thing we have learned: a picture is more amenable to double-checking than mere words. All of which raises the question: What fakeness — from Reuters and the usual suspects — are we not catching? And why ever are the “mistakes” always in one direction?

UPDATE: Instapundit, tanned, rested and ready, weighs in, along similar lines. Chris Muir, finally having taken a cold shower (or a relatively tepid one), finds the lighter side.

(Posted Monday, August 7th on Dean’s World.)

Trademark “use in interstate commerce” and the decline of federalism

add-a-zeroWhat’s the use?

Trademark use, that is.  Heck, it’s getting harder to figure out what’s not “trademark use” these days, as John Welch reports:

The CAFC reversed the TTAB’s decision in adidas AG v. Christian Faith Fellowship Church, Cancellation No. 92053314 (September 14, 2014) [not precedential], ruling that the sale of two hats at the Church’s bookstore to an out-of-state purchaser constituted use in commerce of applicant’s mark ADD A ZERO. The Board had granted the petition of adidas AG for cancellation of two registrations owned by the Christian Faith Fellowship Church for the mark ADD A ZERO, in standard character and design form, for “clothing, namely shirts and caps,” finding that these sales were de minimis and insufficient to show use that affects interstate. Christian Faith Fellowship Church v. adidas AG, Appeal No. 2016-1296 (Fed. Cir. November 14, 2016) [precedential]. . .

The CAFC observed that its prior rulings in “use in commerce” cases reflect the broad scope of Congress’s Commerce Clause powers. For example, in Larry Harmon, the court argued that the Lanham Act’s requirement could be satisfied by a single-location restaurant and it refused to adopt a de minimus test for the “use in commerce” requirement. 929 F.2d at 663. In Silenus Wines, the CAFC held that the intrastate sale of imported French wine constituted “use in commerce.” 557 F.2d at 809.

In the case at hand, the Court found it clear in light that the Church’s sale of two “ADD A ZERO”-marked hats to an out-of-state resident is regulable by Congress under the Commerce Clause and, therefore, constitutes “use in commerce” under the Lanham Act.

Shoe number two, meet floor. Read More…

Someone dropped in an extra zero, right? RIGHT?

Originally posted 2008-10-16 00:01:17. Republished by Blog Post Promoter

It’s a month-old story, and how it got past us here notwithstanding, it’s not getting past us now.  Per the ABA Journal, remember the Bratz litigation?  Well, you haven’t read half of it yet:

Two toy companies battling for rights to the Bratz dolls-with-attitude have racked up legal fees of at least $93 million in the case.

MGA Entertainment has spent $63 million in fees since 2004 defending a lawsuit by Mattel Inc. that contended the doll’s designer conceived of the idea before leaping from Mattel to MGA, the Daily Journal reports (sub. req.). Plaintiff Mattel has spent $30 million in just the first half of the year, the story says.

Mattel was awarded $100 million in the case, far short of the more than $2 billion in damages it had sought.

The Daily Journal got MGA’s figures in a lawsuit it filed against its insurers seeking full payment of the Bratz fees, while the publication got the Mattel figure from a stock analyst.

The ABA item quotes a Jones Day litigation partner who is flummoxed at the idea that there is any conceivable way to get to $93 million for a trademark case, even over the course of four years.  We sure are, too.  And re-read this ‘graph:

MGA Entertainment has spent $63 million in fees since 2004 defending a lawsuit by Mattel Inc.  . . . Plaintiff Mattel has spent $30 million in just the first half of the year, the story says.

That $30 million was just the first half of ’08!  That means Mattel spent WAY more than $30 million since the suit began in ’04, and that the total legal fees must have blasted way, way past $100 million since the case began.

Is there anyone out there who can even remotely do this math and explain how you can get to numbers like this — not how they can be justified, for, given the business interests involved, they are not irrational.  But how many widgets, and of what kind, does a law firm have to spit out to get to these kinds of numbers?

Light at the end of the tunnel

Originally posted 2009-10-08 00:05:06. Republished by Blog Post Promoter

StationStops reports that the MTA has backed off at least part of its obnoxious “IP enforcement program” and undone some of the damage the agency caused between the company and Apple:

Finally, 2 weeks after MTA sent a priority request to re-instate StationStops for iPhone, Apple has finally put our application back for sale in the iTunes app store.

StationStops for iPhone – (iTunes Link)

My battle with MTA over the app lasted 2 months, and cost me approximately $2500 in legal fees and lost sales royalties, as well as occupying pretty much all of my work time with legal, political, and media action for 2 months.

Gosh, I wonder if anyone at MTA will feel any of the consequences for this.

Not really.

Here, read this

Originally posted 2013-09-02 07:00:49. Republished by Blog Post Promoter

"An enormous charm bracelet"

“An enormous charm bracelet”

While I’m busy with this Long Island jury, which — bless their souls — seems to be in for a longer shlep than they may have expected, I can at least send readers to the December Quick Links on Eric Goldman’s Technology & Marketing Law Blog.  That’s December as in a retrospective posted in January.

It’s probably all stuff I should know, anyway.  So let’s say I do know it  by incorporation.  It’s my little Exhibit A, you could say.

This is Not Censorship

Originally posted 2005-03-07 07:05:17. Republished by Blog Post Promoter

52-funniest-thingsEditor and Publisher reports about the canning (“resignation” following a “suspension”) of the tasteful gent who ran that front-page story that New Yorkers saw staring out of newspaper boxes:  in the New York Press, “New York’s Premier Alternative Newspaper.” Hey, what happened to the Village Voice?! The Voice, it appears, is actually “New York’s most influential must-read alternative newspaper.” Both papers (the premier and the must-read) are free.

Anyway. Guy was fired because the publisher needed a goat to sacrifice when the story blew up. (I was about two blocks from St. Patrick’s Cathedral when I first saw the paper. There are over a million Catholics in New York City.) That’s the publisher’s right. No government made him do it; the First Amendment is not implicated. So let’s just don’t go there.


Trademarks and the candidates

It’s a little late, but not irrelevant for all that:


Click through (before they archive it!) to read what the so-called “IP experts” (yes, LIKELIHOOD OF CONFUSION® is supposedly one of them!) have to say.

The royal Fifth Estate

Originally posted 2014-04-22 21:57:09. Republished by Blog Post Promoter

Glenn Reynolds:

[Former New York Times ombudsman Bill] Keller writes: “It’s an unusual and powerful thing, this freedom that our founders gave to the press. . . . The power that has been given us is not something to be taken lightly.”

The founders gave freedom of the press to the people, they didn’t give freedom to the press. Keller positions himself as some sort of Constitutional High Priest, when in fact the “freedom of the press” the Framers described was also called “freedom in the use of the press.” It’s the freedom to publish, a freedom that belongs to everyone in equal portions, not a special privilege for the media industry.

— as we have been saying, hardly alone, since forever. But then, why we expect the New York Times, of all people, to understand that point?

UPDATE: In a related development, the Supreme Court has overturned Vermont’s campaign finance laws as excessively restrictive of free speech. That’s another topic we haven’t been shy about it in the past, either, and it’s related to the same point: The concept that speech by the established press is somehow privileged, and speech by everyone else, even politicians running for office, is less worthy of protection.

Beyond fair use

Originally posted 2013-11-27 12:37:33. Republished by Blog Post Promoter

We’re a little obsessed here with the rights of “unauthorized” resellers to use the trademarks that describe the stuff they’re reselling.  So this UK domain name decision strikes us as extra-interesting (a link added):

Pressure gauge maker ITT failed in its claim for the domain name and 12 other domain names owned by a seller of ITT pressure gauges, Douglas Nicoll, and his company Differential Pressure Instruments. . . .

Nicoll, based in Norfolk, Virginia, sells products that were made by ITT and purchased by the US Government but never used. The government sold off its surplus stock to Nicoll and others who bought them for resale.

ITT argued that Nicoll had no rights or legitimate interests in the domain names. . . . ITT argued that the Oki Data test should be limited to authorised resellers only. The WIPO panel disagreed.

“The Complainants argue that the Oki Data rationale should not apply to an unauthorized reseller,” said the ruling. “The Panel concludes, however, that the issues of legitimate reseller interests in accurately describing a lawful business, on the one hand, and of potential abuses of trademark, on the other, are similar whether or not there is a contractual relationship between the parties.” . . .

The panel said that Nicoll had “a legitimate interest in making nominative use of the ITT mark consistent with the Oki Data requirements; consequently this does not reflect bad faith.”

Well, of course.