America’s trademark litigation gravy train – the Bratz / Barbie case is back!

I can’t claim to be keeping close tabs on what’s going on in theBarbie / Bratz trademark litigation. But lookie here: A federal appeals court has ruled that Mattel Inc. doesn’t have to pay $172 million to MGA Entertainment Inc. to settle a trade secrets theft claim over Bratz dolls because a key claim should have been dismissed before trial. The ruling filed Thursday by the U.S. 9th Circuit Court of Appeals is the latest wrinkle... Read more

Best of 2010: Lug me tender

First published on February 24, 2010. Should a law school be tendering seven figures of money to a minor league baseball team for stadium naming rights?  That is certainly a novel question. I tackled the whole concept of branding, memory and stadium names in the context of the Mets’ Citi Field deal a few years ago–but a bank is one thing.  Heck, these guys know how to make record profits just by threatening to go... Read more

Trademark rights in interdigitization

Nick Daly drops me a note to the effect that one Jay-Z, gazillionaire rhyming scatologist, has been sued by a professional perspirer and leaping stage goon called Diamond Dallas Page — ach! my kingdom for a stage name! — for the former’s “Roc-A-Fella Hand Gesture,” also known as the “Diamond Cutter” hand gesture. Evidently Mr. Z uses the former, Mr. Page the latter of these nicknames for the clever manipulation of the human carpal, metacarpal and... Read more

“That must be exhausting!” (Guest post)

Patents ARE different from copyrights! In a case distinguishing overseas inks (that is, ink on the printed page, on the one hand, versus ink in a cartridge, on the other), the United States Circuit Court of Appeals for the Federal Circuit, sitting en banc, today upheld its prior rules on when patent rights have been “exhausted.” In the face of more recent, and seemingly contrary, decisions of the United States Supreme Court, and in a... Read more

Google me this II

We blogged a week or so ago (before I got bogged down in this trial — still in progress [UPDATE]) about Google’s trademark challenges. Here’s an excellent, if short, item about how trademark issues could indeed be the Achilles’ Heel of the Google business model. This is a fundamental question. Search engines work on their ability to recognize content, and trademarks are a conceptually rich sort of content that essentially adds a premium of meaning,... Read more

Snort that ‘za

“Opinion polls show that many consumers in Lithuania identify the pleasure of eating pizza with our trademark,” said Mindaugas Gumauskas, marketing director of the Cilija [Lithuania] company. “This makes us believe that the scent of freshly baked pizza is a subject to our copyright.” Washington Post, May 17, 2006 Lithuania. Pizza. Smelliness. Secondary meaning. Self delusion. I really don’t understand why everyone doesn’t want to practice intellectual property law. UPDATE: Bad news. Originally posted 2006-05-17... Read more

I Read Dead Peoples’ Email: UPDATE

Remember this item?  I wrote, regarding a family’s request for access to a serviceman’s email account after his death, as follows: I say that absent a specific compelling reason to get the email information — i.e., the location of his will or the buried treasure or something like that — it should die with the man. And, considering that, I would also require that the information ultimately revealed be narrowly-tailored as well. The court in... Read more

Judge: New York Times reporter waived press shield privilege

The New York Law Journal reports (subscription required): A New York Times reporter must testify in an emotional-distress case regarding an interview he conducted with the defendant, the Riverside Church’s controversial leader, the Reverend James A. Forbes Jr., a Manhattan judge has ruled. Reporter Daniel Wakin waived any exemption he may have enjoyed under New York’s Shield Law when he “voluntarily informed plaintiff of the specific information” he had heard while interviewing Reverend Forbes, Supreme... Read more

This Isn’t One, Either. Heavens, No.

Bill Heinze’s I/P Updates blog reports about a trademark registration you can see at the erstwhile movie pirating website You get a message that says “There are websites that provide legal downloads. This is not one of them.” The site is the property of the good people at the MPAA. And it ought to: Downloading someone else’ movie is just plain stealing. Even if the MPAA is against it. Clients sometimes ask whether the... Read more

The sincerest form of flattery

Susan Scafidi seems genuinely shocked — no, I mean, genuinely!  — over this comment by Ralph Lauren: When the New York Times‘ Eric Wilson listened to Oprah Winfrey and Ralph Lauren chat for charity, one exchange stood out: “How do you keep reinventing?” “You copy,” he said. “Forty-five years of copying, that’s why I’m here.” Of course, everyone knows that the signature looks of the Ralph Lauren family of brands are inspired by classic Americana — with... Read more

Free speech? Nothing 2(c) here

In ex parte appeal to TTAB, applicant argues that Section 2(c) of the Lanham Act violates the First Amendment under Matal v. Tam #trademarks — Proof of Use (@ProofofUse) January 11, 2018 No. From the TTAB appeal: The statue [sic] is not narrowly tailored in its suppression of freedom of expression. If the government is concerned that some living individual’s identity will be appropriated there are plenty of tort laws in place to prevent commercial exploitation... Read more

Let’s brand together and make a BRANDED COMMUNITY!

Another one: A blogger on ZDNet had a post about “enterprise communities” where the phrase “branded community” was used. That’s a descriptive use and a perfectly reasonable one. Yet, the owner of some marketing firm wrote a semi-threatening letter claiming to hold the trademark on “branded community” and demanding that the blogger “refrain from using the phrase in any other current or future materials.” You read that right:  Not only is this — arguably —... Read more