Personality disorder

Ms. Streisand call your office tweet

When will we ever learn?  The story here is about a lawsuit by lawyer Moira Bernstein, who complains, on behalf of a purported class, that by listing her plain-vanilla attorney name and address and regular old directory information on Avvo.com while festooning her unremarkable data with

Streisand EffectJ. Michael Keyes from Dorsey & Whitney, the guy who clocked those clowns in the Southern District of Florida on behalf of Angry Birds and who blogs at TheTMCA.com (and a Friend of Simon), has been watching the Avvo-suing-lawyer business for a while.  “Avvo has been sued at least twice before over its lawyer rating system–and it prevailed both times. In one of those cases the court ordered the plaintiff to pay fees to Avvo,” he points out.

Courts are loathe to silence the rating of professionals and reduce the flow of information to consumers of legal services, Michael notes, and he’s right — not only regarding professionals, of course, as we demonstrated here, for example, in our own unique way — in fact, the claim linked to there, reported as Boarding Sch. Review, LLC v. Delta Career Educ. Corp., 108 U.S.P.Q.2d 1785 (S.D.N.Y. 2013) is almost identical to the one being made by Bernstein in Illinois, although it is not based on the right of publicity; it is still every bit as silly.

“It’s hard to see how a lawyer’s right of publicity–the right to control the commercial use of one’s name, image, or likeness–could trump the right of the public to have access to this information,” Michael says.  Obviously, it can’t, even if Avvo’s ratings are a little goofy.  Hey, it’s a free country! Read More…

That offensive Internet

Originally posted 2014-10-26 19:37:41. Republished by Blog Post Promoter

My  one-year-off college classmate, former document review colleague, oddly cheerful ultra-left-wing nut and bona fide genius (yeah, I know!) Brian Leiter has a short post full of useful resources about one of my favorite topics, “The Offensive Internet: Speech, Privacy, and Reputation”.

Read it while you can!

Holy copyright baloney, Batman!

Batmobile 1966

This Batmobile?

It’s not as if I’ve got a problem with DC Comics or something, but, well, here you go.  They’re just being like that!  And I’m just catching up with the fin-fendered fun.  First, per the Autoblog, on September 22, 2015:

Judges in the 9th US Circuit Court of Appeals upheld an earlier ruling about the copyright ramifications of selling replicas of the Batmobile. According to an Associated Press report in the Detroit News, the unique appearance of the Caped Crusader’s car was found to make it a character in the story and therefore couldn’t be copied without permission from DC Comics.

The legal battle between Mark Towle and DC Comics goes back years. Towle’s business, Gotham Garage, offered replicas of the 1966 Batmobile from the Adam West TV series and the 1989 film version. They were priced around $90,000, according to AP. The original sold for $4.62 million at auction in 2013.

LA Larry Zerner

LA Larry Zerner

Towle’s lawyer argued that the Batmobiles were simply cars and couldn’t be protected by copyright. In the earlier finding against Towle, the US District Court judge disagreed and defined the Dark Knight’s ride as more than just a vehicle but as a character in Batman’s tales.

Can it be?  Now, per my friend Larry Zerner, who doesn’t think so — well, no; he would agree, in fact, that it can, and that it is, but that it shouldn’t.  Here’s what he says, in a post dated January 23rd of 2016: Read More…

When counterfeits are serious business

Originally posted 2010-06-25 00:38:19. Republished by Blog Post Promoter

The New York Times writes about counterfeit drugs, the tragedies that follow in their wake and the reality of enforcement.  Via the NCPA website.

How important is copyright registration?

Originally posted 2007-12-28 10:31:49. Republished by Blog Post Promoter

This important  (pdf). As a New York Law Journal article (sub. reqd.) puts it,

The Second Circuit’s decision in In re Literary Works substantially limits the use of class actions as a vehicle to settle copyright infringement cases. Survey evidence cited by the parties in the case showed that freelancers register less than one percent of their works, rendering more than 99 percent of potential claims incapable of resolution in a class action settlement. This likely will pose obstacles for both plaintiffs, who will be forced to sue individually if they failed to register their copyright, and alleged infringers, who will be unable to effect a global settlement of potential infringement claims.

Interestingly, the majority conceded that copyright protection “generally begins at the time of a work’s ‘creation,'” regardless of whether the material is registered. It argued, however, that the issue of whether a work is entitled to copyright protection is quite different from whether a copyright holder is permitted to institute an action in federal court. Nevertheless, the Second Circuit’s holding could make the protections offered by copyright law a virtual dead letter for those plaintiffs who did not register and cannot go to court on their own.

It doesn’t matter if everyone in the room, including the judge, wants to adjudicate a case involving the infringement of an unregistered copyright.  The courts are not available for that under the statute.  No registration, no enforceable rights — even by consent.
Is that really what Congress wanted to do?  Should it have wanted to do that?

Here, by the way, is how you register a copyright.  You don’t need a lawyer.

Knock it off!

Originally posted 2012-01-30 15:50:24. Republished by Blog Post Promoter

And if you do, you just might make the next Counterfeit Chic “Knockoff News.” (I did!)

Arnold Palmer and the Perfect Brand

Originally posted 2013-11-11 10:39:03. Republished by Blog Post Promoter

This post is based in part on part of my contribution on trademark law and the right of publicity in the New York State Bar Association publication, In the Arena.  As with other posts on the blog where I have recycled revisited such material, it may sound a little bit less like a LIKELIHOOD OF CONFUSION® blog post and a little bit more book-like.  In this case, however, the post is a significant expansion upon what appeared in the book.

As seen in the Benny Goodman case in the TTAB, celebrity, brand power and trademark rights may outlive a celebrity’s peak performing years, but will bear fruit only as long as the roots of the “brand” itself—the image, sensibility or other association the celebrity name elicits—remains alive.  How does a brand stay alive after the celebrity’s career (much less his life) are over?

BG in Hi FiFor insight into the answer, consider the management of the BENNY GOODMAN trademark, where one significant basis for the TTAB’s ruling against the seemingly bona fide applicant was the finding that a corporate successor in interest was actively exploiting the late King of Swing’s fame.

In contrast, the custodian of the intellectual property rights bequeathed by Goodman’s contemporary and colleague, the great band leader Glenn Miller, managed to completely squander those rights. Miller died tragically in 1944, and decades of internecine squabbles among his heirs followed. Finally, in 2006 the Ninth Circuit essentially declared the “Glenn Miller” and “Glenn Miller Orchestra” trademarks dead as well, affirming the district court’s ruling that decades of inaction by the plaintiff, despite knowledge of the defendant’s infringement, amounted to a fatal case of laches.

Glenn MillerThe lessons of these cases for advising celebrities are obvious: Lawyers must ensure that a star’s brand does not die with him — or with his playing career. An athlete’s planning for post-career continuation of the brand should begin early. Few athletic careers extend past age 40, and most end far earlier. Absent proper brand management, a sports star’s trademark rights may wither and die well before he does.

This need not be the case. Endorsement power can live and grow well past the active playing life of a professional athlete. There is no better example than the extraordinary post-play branding career of golfing legend Arnold Palmer, who unlike Miller and Goodman didn’t lead the perfect band but arguably developed, and exploited, the perfect brand. Read More…

Couture in Court

Originally posted 2012-02-29 23:27:24. Republished by Blog Post Promoter

Fabulous filings for fashionistas — and those who just want to look like them!

Hard Time for the Lyrical

Originally posted 2005-12-13 17:18:37. Republished by Blog Post Promoter

Mark Schultz writes, in an article called We Hate You, Buy Our Stuff:

It must be a badge of honor for entertainment industry trade association executives to become known for extreme statements. Lauren Keiser is president of the Music Publisher’s Association. Apparently, he hopes to make “Lauren Keiser” and “MPA” terms of obloquy and horror among bloggers and Free Culture types just like “Hillary Rosen,” “RIAA,” “Jack Valenti,” and “MPAA.” Well, why not? Rosen and Valenti have both retired, so the position of Public Domain Enemy Number One is vacant. As the BBC reports, Keiser makes his case as follows:

MPA president Lauren Keiser said he wanted site owners to be jailed.

He said unlicensed guitar tabs and song scores were widely available on the internet but were “completely illegal”.

Mr. Keiser said he did not just want to shut websites and impose fines, saying if authorities can “throw in some jail time I think we’ll be a little more effective.”

Jail? Does he know something we don’t? Are lyrics sites fronts for terrorist activities? Sarcasm aside, I’m sure Keiser as an industry insider knows some things we don’t about lyrics sites and certainly has stronger feelings than most. He should keep those differences in perspective in mind. Most people don’t get where he’s coming from. He sounds a little unhinged, which is a bad thing for one of the public faces of the music industry. Unhinged is a fine thing for a political talk radio show host, but should it be part of the job description of a trade industry executive? Unfortunately, it probably kind of is part of his job. The industry pays his salary, they’re worried, so he needs to show them he is fighting for them.

The music industry would do well to consider whether such actions and rhetoric really serve its interests.

I’ve always said these RIAA types seem mighty desperate.

Tail wagging dog?

Originally posted 2010-10-14 21:56:02. Republished by Blog Post Promoter

Alienware-Logo-15Or maybe not. Evan Brown reports about a lawsuit by a high-end computer manufacturer, Alienware, over one of those “free laptop” promotions that it claims mostly leans on its brand name:

According to Alienware, after accepting the offer, users must purchase a specified amount of goods from various other sites. And this obligation is not clearly communicated, but is “presented to the consumer, if at all, only after he or she expends significant time and effort in responding to inquiries and navigating the multiple prompts.” . . .

Yes, and those young women who instant-message you from Nigeria really are living alone with their mothers and looking for a nice single man and his bank account number solely to wire in some pin money. Evan wisely asks whether this is really trademark infringement at all, and not fair use or some other defense such as the first use doctrine, and notes:

And Alienware may have anticipated this defense, alleging that it’s only “Alienware” serving as the source identifier for the offer, and “[t]here is no other recognizable or identifiable indication of source.” The defendant is an entity called “Online Gift Rewards.” Alienware claims that the designation is “likely to be perceived as a generic description of the offering rather than a source indicator.”

You know, this is not a half-bad argument. And this demonstrates why our law professors always said, “Hard cases make bad law.” These sorts of “trademark infringement” claims that only lightly implicate consumer confusion — they really are offering an Alienware machine — but are really attempts to get at some other black act, or grey act, are making copyright and trademark the all-round would-be enforcers of every sort of conceived and actual business offense. Some judges get it; some don’t.

This particular case — the complaint, courtesy of Evan, is here — raises an interesting issue in terms of how the prominent use of the desired brand name in the overall marketing campaign, along with a very generic description of the seller, could lead to confusion as to source (i.e., of the offer) or sponsorship. That would be fine with LIKELIHOOD OF CONFUSION® if that kind of analysis were reserved for allegedly close cases such as this, and not applied to retail sellers (typically online) of trademark-protected goods that are not “authorized” by the mark owner. (Yes, I am “positionally” biased.)

But in the midst of numerous decisions granting plenipotentiary powers over markets and marketing to anyone with a trademark registration, this could be just that hard case that could firm up an already troubling legal trend — and then some. But, hey, even trademark owners have rights!