IP Overreaching

Bullish on royalties

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The New York Post reports that the sculptor of the famous golden calf frozen in stampeding fury on lower Broadway — symbolizing the charge of capitalism in all its mammalian frenzy, its sinewy dynamism, its hirsute excess, its snorting effluvium — is suing Wal-Mart for exploiting his steely beast by selling pictures of it and, as the paper says, horning in on all the profit. Whether it’s a copyright claim or, perhaps, something else, I’m…

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Ron Coleman

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Posted on Damages

The new fuzzy logic of copyright damages (Best of 2016)

First posted on June 17, 2016. What’s all this about the Supreme Court and copyright damages? Pretty thorough analysis of yesterday’s SCOTUS #Kirtsaeng judgment#copyright https://t.co/IPXtq9xFH3 — Managing IP (@ManagingIP) June 17, 2016 This one, then, is the one I will rip off (with attribution) for the blog post! https://t.co/6kDhsmQ7Jf — Likelihood ®© Blog (@likely2confuse) June 17, 2016 So we got that part over with.  Now, I have written a bit about the first-sale aspects of... Read more

Posted on Copyright Law Free Expression

Best of 2010: Moral rights in Massachusetts

First published April 12, 2010. Lee Gesmer reported last month on a pretty important decision in copyright law:  A First Circuit ruling applying the Visual Rights Act, which–well, Lee says it very well himself, actually: Mass MoCA is the Massachusetts Museum of Contemporary Art Foundation a contemporary art museum in North Adams, MA.  Christoph Büchell is a Swiss “installation artist.”  Think very large, very avant-garde.  The New York Times describes his work “dense, fraught creations, which... Read more

Posted on Section 2(a)

Redskins redux

Remember the Washington Redskins trademark tussle? CNBC reports that it’s back — again — and better than ever. This time the focus is an interesting technical tactic related to an aspect of the case involving the equitable doctrine of laches: [T]he U.S. District Court of the District of Columbia . . . in 2003 reversed the TTAB’s decision on disparagement. The court also determined that the petitioners were barred by laches, a legal doctrine applied... Read more

cloth with artistic design
Posted on LIKELIHOOD OF CONFUSION®

A free market moment

Stephen Laniel finds, in trademark law, reason not to throw the whole thing over: The public-health justification for trademark law is pretty clear: if the law defends my product brand at the point of a gun, I have an incentive to strengthen that brand. It’s a defense against fraudsters latching onto my product’s goodwill. . . . How would this work in an anarcho-capitalist world? For that matter, how would it work in a slightly... Read more

Posted on LIKELIHOOD OF CONFUSION®

Bull market

Are trademark filings really an economic indicator?  This is from the Philadelphia Inquirer (via David Ardia, who cites Marty.) Glenn Gundersen . . . [a] trademark and copyright lawyer at Dechert L.L.P. has been tracking trademark filings since the early 1990s. He says there’s a powerful correlation between such filings and the overall health of the economy. And using that metric, things aren’t as bad now as they might seem, he asserts. When trademark filings are up, it’s a good... Read more

Posted on TTAB Practice

Semaphores and metales

Two kinds of analogy, as scrambled by an old and dear friend. Evidently, there is another kind. John Welch writes about a TTAB decision cancelling trademark registrations based on the petitioners use of the mark, for purposes of avoiding a defense of abandonment against the putative senior user, that is not quite trademark use but is “analogous to trademark use.” John writes about the rather thin reed on which the TTAB places the weight of... Read more

Joel MacMull
Posted on Genericness and Trademarks

Booking.com and genericness

The U.S. Supreme Court announced earlier this month that it will hear the Booking.com trademark case in the new year. Booking.com BV, owner of the popular hotel reservation website, has long argued that the addition of “.com” converts its otherwise generic mark into a protectable trademark, i.e., a source identifier that consumers would recognize. While the Trademark Trial and Appeal Board initially refused registration of BOOKING.COM on the ground that it was generic, a federal... Read more

Posted on Culture Clash

Move on, already

Yet another chapter in the abuse of supposed trademark rights in “catchphrases” — now from MoveOn, the “freedom” people. The purveyor of an “infringing” T-shirt ran for the hills, intimidated unjustly — classic “big IP” stunting at work. (Why don’t these folks even try to find pro bono lawyers? I’m not the only one who would have handled this case for free.) IP doth make villains of us all! (Speaking of evil — another hat... Read more

Posted on Brand Management and Branding Trademarks and trademark law

Nothing gained?

UPDATE:  I have further thoughts about what is almost certainly the real motivating factor behind Jones Day’s actions in connection with their obviously frivolous lawsuit against BlockShopper, and I have moved them to my other blog, because they are not necessarily on topic.  But you must start with Paul Alan Levy’s original blog post if you want to get your arms around this situation. Sam Bayard sums up “thoughts on the Jones Day-BlockShopper Settlement”: So... Read more

Posted on LIKELIHOOD OF CONFUSION®

Bad career planning, email department

What do they say about the guys who talk about doing it the most? Well, we might need a new rule for guys who email about doing it the most. Reuters “news service” reports about the guy whose macho email was so stupid — and so quickly all over Europe — that one woman in the chain couldn’t help but blurt out the obvious: “They are so going to get fired!!!!” she said. That’s four... Read more

Posted on LIKELIHOOD OF CONFUSION®

Eating my words

I do it sometimes. In my case, they’re particularly tasty, and sometimes even tasteful. Definitely not tasteful, not tasty — not even edible, if “kosher” means anything (which judges refuse to admit it does). And why do I have to eat my words? The case involves the unauthorized use of the Kof-K* kosher symbol (a certification mark) by a dirty-movie maker. He put the mark on the cover of his ethnically-oriented dirty movie. “Perhaps a... Read more

Posted on Section 2(a)

A different Slant

Does this story in the Northwest Asian Weekly about the trademark registration woes of a rock band called The Slants sound familiar? The Slants, whose members are of Asian descent, have amassed fans nationwide, taking the stage at dive bars, Asian festivals, anime conventions, and even serving on panels to discuss racial stereotypes. But behind the scenes, the band is fighting a battle with the United States Patent and Trademark Office USPTO. The office has twice... Read more