Generic Fair Use

... where pop culture meets intellectual property law

Year: 2015 (page 1 of 2)

The First Amendment Embraces “Disparaging” Trademarks

On December 22, 2015, The United States Court of Appeals for the Federal Circuit reversed decades of legal precedent and held that the United States Patent and Trademark Office cannot refuse to grant federal registrations for trademarks on the basis of the mark being “disparaging.”[1]  This standard of refusing registrations for “disparaging” marks is derived from Section 2(a) of the Lanham Act, the federal statute that governs U.S. trademark law.[2]

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Coca-Cola is trying to claim trademark rights to “ZERO.” Billy Corgan must be inconsolable.

Did you know that The Coca-Cola Company applied to register a federal trademark for the term “COCA-COLA ZERO”?  It is true.  Coca-Cola filed the application with the USPTO on March 4, 2005.[1]  The application was published for opposition on April 17, 2007.  Not surprisingly, the companies that own Dr. Pepper and 7-Up immediately opposed this registration.[2]  The battle has been ongoing for over eight years now.

Without going into too much detail, an executive for Coca-Cola testified recently that there are twelve Coke products that use the term ZERO in the product name.[3]  This includes Coke Zero, Cherry Coke Zero, Vanilla Coke Zero and others.  This is consistent with Coca-Cola’s trademark application, which identified the relevant goods and services as “Beverages, namely soft drinks; syrups and concentrates for the making of the same.”[4]  Nevertheless, the “ZERO” part of the mark almost certainly refers to the marketing of these specific products as having “zero calories” per serving size (i.e., one can or bottle).  This presents a series of interesting trademark concepts.

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Kobe Knows Trademarks

Time flies.  I was a freshman in college when Kobe Bryant declared that he was going to skip college and go straight to the NBA.  Fast forward twenty years and Kobe has announced that he is retiring from professional basketball at the end of the season.  Through a poem.

Kobe has always been known for being a voracious competitor on the basketball court.  But it appears he has a plan for life after basketball.  Kobe has already formed “Kobe, Inc.” and has started the process of acquiring trademark registrations.  For nearly everything.

It has been a recent trend for athletes to seek to acquire trademark registrations for their names and nicknames and likenesses.  (“Johnny Football,” anyone?)  Kobe is just taking it to the next level, which is entirely consistent with his personality as we know it.  The question is what exactly is he seeking to protect?

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The force is strong with Star Wars intellectual property

Star Wars: The Force Awakens opens on December 18, 2015.  It will be the biggest movie of the year.  It will also likely be the most infringed copyrighted work of the year (and 2016, too).  It will be the seventh official full-length Star Wars movie to be released in theaters since 1977.  Though I recently re-watched the prequels and I would prefer to act as if they did not exist.  No matter what revisionist history might try to argue.

Since the original movie, Star Wars Episode IV: A New Hope, George Lucas has not been shy about protecting his intellectual property rights.  It is practically a running joke that any reference to Star Wars will expose you to a lawsuit from Lucasfilm or Disney.  (The Walt Disney Company bought Lucasfilm for $4,000,000,000 in October 2012 and immediately announced plans for a new set of Star Wars movies using the same characters and settings.)

To demonstrate just how sincere the creator of the Star Wars universe is about protecting his creation, his characters, the movies, the settings, the concepts and the ancillary names, brands and logos – the following is a summary of the notable issues relating to Star Wars intellectual property.

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Did Panem infringe trademarks or violate publicity rights by using Katniss Everdeen’s image as the “Mockingjay”?

Last weekend, The Hunger Games: Mockingjay – Part 2 made over $100 million at the box office.  The movie’s success is largely due to the strength of Jennifer Lawrence and the popularity of the books.  Enough digital ink has been spilled discussing the movie as a dystopian political outlook for young adult audiences.  Instead, here we repurpose the world of Panem as if it adopted the intellectual property laws currently in the United States.

 Accordingly, under that hypothetical, what trademark and publicity rights does Katniss Everdeen have?  Did the rebels and/or the nation-state of Panem violate or infringe any of these rights by exploiting her image as the “Mockingjay”?

 [mild spoilers ahead, proceed with caution if you have not seen the movie]

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The TTAB is now openly trolling the Washington Redskins

Remember a couple weeks ago when the Washington Redskins submitted a laundry list of registered trademarks that its counsel contended were offensive or disparaging?  And remember when that same week the makers of “Nut Sack Double Brown Ale” beer were granted a federal trademark registration over similar objections?  You should – I wrote it on the paper.

Now another beer maker has been granted what I will call a questionable trademark registration.  One that I am sure would have been listed right at the top of the Washington Redskins’ bad name list.  LEFT NUT BREWING COMPANY is now a federally registered trademark.  Really.  On November 13, 2015, the Trademark Trial and Appeal Board reversed the decision of the trademark examining attorney and granted the registration.

I am sure that Daniel Snyder is handling this news with calm, cool reflection.  Or whatever the exact opposite of that is.

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Twelve Angry Men to determine whether the Indianapolis Colts infringed Texas A&M’s “12th Man” trademark rights

On Thursday, November 12, 2015, Texas A&M University filed suit against the NFL’s Indianapolis Colts[1] alleging infringement and dilution of its various “12th Man” trademark rights.  If this sounds familiar or redundant, remember that A&M previously sued the NFL’s Seattle Seahawks for unauthorized use of the same trademarks nearly a decade ago.  A&M eventually settled that matter with the Seahawks, with the NFL franchise agreeing to pay a license fee to A&M.  The actual terms of that license and settlement were never made public and Seattle continues to use variants of the “12th Man” name today.

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Today in Trademarks: Is “Nut Sack Double Brown Ale” less offensive than “Washington Redskins”?

Last week, counsel for the Washington Redskins submitted a lengthy brief to the Fourth Circuit that, in part, provided a laundry list of other trademarks that have been registered by the USPTO and were implicitly deemed not to be immoral, scandalous, disparaging or otherwise offensive.  In a parallel but unrelated matter, the owners of the trademark for NUT SACK DOUBLE BROWN ALE – for a beer flavor, naturally – overcame a challenge to their mark and were granted a federal trademark registration.

These two decisions seem incongruous, but are they really?  At the very least, I hope to see an episode of South Park where Cartman wears a Washington Redskins™ jersey while drinking a Nut Sack®-flavored drink.

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Patents, Copyrights and Trademarks Made Simple

[originally published November 5, 2015 at www.law-dlc.com]

Did you know that the Framers of the United States Constitution solidified the rights to copyrights and patents more than two years before the protection of freedom of speech?[1]  It is true.  The Constitution, signed on September 17, 1787, included the following specific provision:

Congress shall have the power to … promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.[2]

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Is Your Halloween Costume an Infringement?

[originally published on October 28, 2015 at www.law-dlc.com]

Halloween is on a Saturday this year.  I am anxious to see people of all ages walking around in full costume.  What a wonderful time of year.  Halloween is fun – and it brings out the creative side in almost everyone.  People will be dressed as superheroes, villains, cartoon characters, pop culture icons, scary monsters, and more.  But most of these costumes you will see represent characters that were created by someone else.

Is your Halloween costume infringing someone else’s intellectual property rights?

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