The Lanham Act’s surprising penumbras

Here I thought I understood something about the Lanham Act.  But wait, there’s more!  Did you know this?: The purpose of the Lanham Act is to protect registered and valid copyrights, trademarks, and patents. That’s from Coach, Inc. v. Southwest Flea Market., 2:10-CV-02410-DKV, 2012 WL 8470191 (W.D. Tenn. Feb. 21, 2012), an important decision concerning, among other things, the circumstances under which a flea market vendor can be held contributorily liable for the sale of counterfeit…

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Humdinger of a copyright case

How can a statute of limitations for copyright infringement bar a state law claim for an accounting of profits between co-authors brought under diversity jurisdiction? Good question, right? I’ll let Bill Patry’s first paragraph serve as a fuller introduction to this fascinating post: The First Circuit has struggled for years with a case involving the well-known Hummel figurines, drawings of which were created by Sister Berta Hummel in Germany in 1931. The most recent decision... Read more

Blog Juice?

Joy McCann, blogging on Dean’s World, comments on a Slate article suggesting that bloggers are the Euro-American version of rappers. In your bottle-full-o-bub’ dreams, Joy! Originally posted 2005-03-23 10:51:00. Republished by Blog Post Promoter Read more

Statutory damages in copyright, and the Tenenbaum case

Statutory Damages and the Tenenbaum Litigation:  Doug Lichtman out at UCLA sends this along: Joel Tenenbaum looks a lot like every other defendant who has been accused by the music industry of illegally sharing copyrighted work online, but with one key difference: his defense attorney is Harvard Law School Professor Charlie Nesson, and Nesson is out to turn his case into a public referendum not only on the music industry’s efforts to enforce copyright through... Read more

Section 2(d) and bridging the gap

In the future, if there is any singularity in trademark law, it may well come down to what what is called “bridging the gap” in the Second Circuit. In other words, how much exclusive trademark real estate can you claim beyond what you’re using your (non-“famous”) trademark for right now? Now? John Welch writes, as he will frequently in more or less the same vein: A (current) TTAB Administrative Trademark Judge once said to me... Read more

Clothiers and disclosure (Best of 2016)

First posted on May 6, 2016. Interesting.  This, from the mysterious Julie Zerbo at her iconoclastic blog, The Fashion Law: The newest group of potential outlaws in the fashion industry is not made up of tax evading Italian design houses. Instead, it is a slew of big-name brands and famous bloggers teaming up for promotional purposes that are consistently choosing to blatantly disregard the provisions of the Federal Trade Commission (“FTC”) Act. Not up on the... Read more

Bullish on royalties

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... Read more

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

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

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

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

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

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