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Hey, 19

Originally posted 2015-03-17 13:36:59. Republished by Blog Post Promoter

product-19.jpgMore on the dumb trademark-abuse story of the season (we’ve dealt with the SUPER BOWL and trademark overkill here and here already). Now there’s this SUPERcilious beaut [link to 2008 story is gone — RDC]:

After the Lakers won two straight NBA titles in the late-80’s, their coach Pat Riley trademarked the phrase “three-peat” so he could cash in on merchandising associated with their third straight crown. The Pistons took them out in the Finals, though, and Riles had to wait for the Bulls to achieve the feat before seeing any return on his craftiness.

The Patriots spit on that history. The New York Post reports this morning that the team has filed paperwork to patent trademark the phrases “19-0” and “19-0 Perfect Season” in advance of this Sunday’s Super Bowl matchup with the New York Giants. And, lest you think they waited until they were in the title tilt before moving forward, the team actually filed the applications three days before the AFC Championship game was played. The Pats say that the move is strictly business and not motivated by arrogance.

Nor by the remotest understanding trademark law. We’ve already dealt with the sorry concept of seeking registration of free-floating catchphrases and similar nonsense. Hat tip to Nick Daly, who writes, “I was watching NY1 this morning and Pat Kiernan covered this story, saying “if they can trademark a number, then I want 5.” The number “5,” or five numbers? After all, if you can own the trademark to any you shouldn’t have a limit. We’re not running out of them or anything — unless you including running out of “fives,” 19’s or, perhaps, googols.

UPDATE:  Read and enjoy this law review article:  “OPPORTUNISTIC TRADEMARKING [sic] OF SLOGANS: IT’S NO CLOWN ISSUE, BRO.”

Putting trademark in the corner

Catchphrases such as THREE-PEAT with no coherent secondary meaning and no meaningful trademark identity are one of the really galling misuses of trademarks these days.  Nick Daly sends along this story (link added):

Lionsgate Film Studio has sued 15 companies for allegedly selling their merchandise featuring its trademarked [sic] phrase “Nobody puts Baby in a corner” from the 1987 hit movie “Dirty Dancing.”. . .

The suit, filed in Los Angeles last week, alleges that the use of the phrase by the companies wrongly sends the message to the consumers that the merchandise was authorized for sale by Lionsgate.

Holy CowThis is silly. Not every “good line” from a movie that’s silk-screened onto a trinket lures consumers into thinking that the merchandise has to do with the movie in any formal way. To the contrary, consumers recognize this as a mere cultural reference. But cleverness should not be not a basis for granting trademark rights. This is no more than trademark as cultural rent seeking, an old topic around here, and it’s despicable regrettable.

“Good lines” used to be their own reward. The late Phil Rizzuto was known by millions for his “trademark” use of the phrase “Holy Cow” in calling baseball games. This “trademark” benefited “the Scooter” without recourse to the Lanham Act: It was something that projected his reputation, enhanced his career and the demand for his services, and gave joy and pleasure to his fans.

Contrast THREE-PEAT — a registered trademark of basketball coach Pat Riley, meant to describe a thrice-repeating professional sports championship. Beaucoup clever. But a trademark? For what? Some junk that his company sold around the time he registered the mark, solely for purposes of establishing bona fide trademark use? I’d love to see the survey that could establish any good or service consumers associate with this coinage. That survey will never be taken, because the kinds of companies shut down by lawsuits by the likes of Riley and Lionsgate typically can’t afford to litigate (a survey alone can easily cost six figures of money).

Thus the abuse of the Lanham Act continues. Ironically, it’s unnecessary. I’ll bet you dollars to donuts that NOBODY PUTS BABY IN THE CORNER isn’t making Lionsgate a dime today, because it is essentially worthless as anything but a lever over other peoples’ use.

Trademark blogger Ron ColemanBut you ask: Wait, why shouldn’t Lionsgate be rewarded for its clever phrase (I guess it was clever; I did not see the movie) or the “artistic” moment or recollection it evokes? But it has been! This line presumably made their movie better, and a better movie made them over a fifth of a billion dollars in box office receipts.

And that’s what — and all that — a good catchphrase should be. You know: Its own reward.

UPDATE:  Brett Trout points out there isn’t even a registration for this phrase.  Lots of other good stuff in his piece.  Hat tip to Blawg Review.

Give bees a summons

bee-maquette-2Yes, another slogan lawsuit — one of my favorite topics (also here and here). A Fort Lauderdale company has sued the makers of the “Bee Movie” over the use of their slogan, “Give Bees a Chance.”Nick Daly of the Google Copyright blog writes in:

I’ve got another great slogan lawsuit for you. Looks like a company that sells cosmetics containing honey is suing Dreamworks and Paramount over the slogan “Give Bees a Chance,” which is registered to the cosmetics company and was used in television commercials for the movie. It’s a total stretch, but can’t be surprised since the parties were in negotiations over licensing of the slogan only to have the studios use it anyway. He’s most likely just bitter he didn’t get anything out of it.

As an aside, since the movie wouldn’t need to license the slogan from this company, what is the practical effect of even having licensing negotiations if they fall through and the slogan gets used anyway? Do prior negotiations matter to a court, or will the court simply look at the final use and only consider prior negotiations to find some sort of bad faith if the eventual use does infringe? It seems plenty of people think that prior negotiations means they’ll win their suit, even if the subsequent use isn’t infringement.

Well, unless there were all sorts of disclaimers signed before the negotiations began, I would think that negotiations could matter. They certainly go to willfulness if an infringement is ultimately found. But of course, they’re not determinative. The plaintiff will say, “They asked our permission, which they knew they needed, but when we asked for a fair price, they decided to just steamroll us and go ahead without permission.” The defendant can say just as credibly, “We didn’t think we needed permission, but for a fair enough price we sought to avoid any exposure or litigation risk. We couldn’t get that price.”

Ultimately, for the lawyers it’s a win-win. A stinging litigation rebuke for the hourly-fee litigator is still laced with sweetness. Of course, not knowing the actual facts here, I have no idea which side will win. I’m pretty inclined not to trust Hollywood, though, and I gotta bee me.

UPDATE:  Settled, yep.