Tag Archives: Culture

Cowboy rules

Originally posted 2012-08-10 16:16:03. Republished by Blog Post Promoter

nakedcowboy m&MFrom the National Post, trademark news about a lawsuit brought by New York’s charming Naked Cowboy against the makers of M&M’s and its ad agency. The story is in Canadian, but you can still more or less make it out:

Robert Burck, a New York street performer who entertains the crows in Times Square by strumming a white guitar and wearing little more than white cowboy boots, has been given a green light to proceed with a US$6-million trademark suit against the maker of M&Ms candy.

Burck, who has trademarked [sic] his look and who licences his name and likeness for endorsements, claims Mars ran video billboards that improperly depicted an M&M wearing an outfit similar in skimpiness to that favoured by the cowboy.

Mars denies the allegations and tried to get the case thrown out of court. Mr. Justice Denny Chin of the U.S. District Court for the Southern District of New York in Manhattan refused, ruling that whether Mars infringed the trademark is a question of fact, not law, and as such can only be decided at trial. You can read his judgment here.

Judge Chin’s opinion (which I assume reflects “his judgment”) actually has the relevant pictures right in it. I like that kind of thing. The lawsuit also included a claim for infringement of Burck’s right of publicity, as it would be called elsewhere, or what New York calls the (statutory) right of privacy. It was dismissed. From the opinion:

Burck’s right to privacy claim (denominated as a right of publicity claim) is dismissed, for the New York statute [N.Y. Civ. Rights Law § 50] protects the name, portrait, or picture of a “living person,” not a character created or a role performed by a living person. Burck may proceed, however, with his false endorsement claim, for he plausibly alleges that consumers seeing defendants’ advertisements would conclude — incorrectly — that he had endorsed M&M candy.

The court ruled that the right of privacy statute in New York is narrowly tailored to protect actual depictions of people — not their transmogrification into candy-coated chocolates. “The M&M Cowboy characters are not portraits or pictures of Burck, and thus defendants did not use a portrait or picture of Burck. . . . Merely evoking certain aspects of another’s character or role does not violate sections 50 and 51.”

Okay, so what kind of “endorsement” does Judge Chin think is plausible enough to go to the jury here? Read More…

Sewage Treatment

The issue of companies that technologically filter the sludge that oozes out of Hollywood in order to preserve a semblance of entertainment or enlightenment in that product line, while perserving other sensibilities, is bubbling up. We addressed it earlier; naturally, it’s now being litigated. This is a fascinating topic and one that is addressed very thoroughly in an article in the New York Law Journal (registration required).

Here’s the heart of the matter:

Making copies of a movie and offering them for sale or rent, of course, is a plain violation of copyright law. To avoid this problem, editing companies buy multiple legal copies of each movie they offer so that they always retain a one-to-one ratio of ‘cleaned-up’ copies to originals. Some editing companies package the original DVD along with the edited copy — sometimes in disabled form –so it is clear that each sanitized copy is backed up by a legitimately purchased original. Under this scheme, the editing companies argue that they cannot be doing harm to content owners. In fact, they assert that, by establishing a new audience for these movies, they are actually increasing revenues to the content owners. This argument ignores the fact that a copyright owner has the exclusive right to create and sell derivative works from its content. If a market exists for cleaned-up movies sold at a premium, the studios argue that it belongs to them, not the editors.

The other solution is the use of a hardware filter. Here, again, is a powerful excerpt on what’s at stake: Read More…

Drink to me only with thine eyes

A week or so ago it was the sad story of Jimi Hendrix on the bottle. Now the TTABlog reports on another famous-dead-guy-as-booze-trademark case:

Applicant Anatoliy Bondarchuk failed to fend off a petition for cancellation of his registration of the mark MARC CHAGALL for vodka. The Board not surprisingly found that the mark creates a false suggestion of a connection with the painter Marc Chagall, in violation of Section 2(a) of the Lanham Act, and it therefore sustained the petition.

The irony is that Chagall’s paintings always struck me as the kind of thing you would, indeed, find at the bottom of a bottle of vodka.  Animals and people getting just a l-i-i-i-ittle too close… fowl showing up in the most inappropriate places … lots of questionable aloofness — flying around in the air, that is.

I always thought these paintings looked as if Chagall had stayed for one l’chaim too many. Or that he had a very odd family, indeed. Maybe so — but it’s not for Anatoliy Bondarchuk to profit from it, and so too says the TTAB.

Clash of titans averted

Wrestliang press reports (link to this blog added):

Former WCW superstar Diamond Dallas Page has settled his trademark infringement lawsuit against hip hop mogul Jay-Z. The suit was settled on July 10th after the court signed off on an agreement reached between the two parties.

According to one source, the settlement included a monetary fee that was paid by Jay-Z to Page. In exchange for the fee, Page agreed to drop all claims in regards to the infringement suit. Each party paid their [sic] own legal fees.

I, for one, will sleep a lot better tonight, knowing that Jay-Z sliced off about ten minutes worth of earnings to pay off the offended “superstar.” It would, however, have been quite interesting to see if anyone really had any trademark rights in their shared hand gestures. I assume that since Page is a “former WCW superstar,” he isn’t using the gesture any more, so there are no licensing issues. I would love to see what the quality control provisions would provide!

You know it’s not a crime any more when…

… even the judges are doing it?