Generic Fair Use

... where pop culture meets intellectual property law

Year: 2019

Eye of the Beholder: The differences between “trademark infringement” and “copyright infringement”

July 31, 2019

The music industry has been in the news a lot recently regarding intellectual property rights and related disputes. Just this week, a federal jury determined that Katy Perry was liable for copyright infringement. This tracks with the ongoing trademark infringement lawsuit filed by Gibson Brands, Inc., which continues to fascinate me.

Though in my research of these various topics and the feedback I have received from writing about these legal issues, I have learned that the terms “trademark” and “copyright” are being used interchangeably by the public. This is troubling because they are absolutely not the same thing.[1] I would therefore like to take the opportunity to explain the differences in these two legal doctrines. Because not all “infringements” are identical acts.

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The Shape of Things: Gibson sues Dean Guitars for Trademark Infringement

In May 2019, Gibson Brands, Inc. sued Armadillo Distribution Enterprises, Inc. for trademark infringement, unfair competition, and counterfeiting.[1] Armadillo may not be a well known name, but it is affiliated with the guitar brands Dean Guitars and Luna Guitars, which compete with Gibson. Gibson is one of the most prominent names in the electric guitar industry, alongside Fender. In this lawsuit, Gibson accuses Armadillo/Dean of infringing at least four “body shapes” of its electric guitar models: the Flying V, the Explorer, the ES, and the SG, each of which Gibson cites as a registered trademark.[2]

This case caught my attention because I am a guitar player and I often write about music and the music industry as it relates to trademarks and copyrights. Here are just a few examples. I do not personally own any Gibson-branded guitars (they are too heavy in the neck), but I do own one acoustic Dean Guitar – though not one of the types that is accused of infringement in this case. With regard to electric guitars, I prefer Schecter Guitars. Always a Hellraiser™.

Armadillo has not yet responded with an Answer to this lawsuit, but I anticipate Dean Guitars will present a substantial defense to all of Gibson’s claims. It is important to note that this is not a patent case. This is not about who “invented” the particular shape or style of an electric guitar. Any patent rights for these designs would have expired decades ago. Instead, this dispute concerns trademarks. It essentially seeks to determine whether a particular shape of a guitar evokes a specific source in the minds of the relevant consuming public. With regard to the guitar industry, there is a long history associated with these particular “body shapes” and how they impact pop culture and the competition between the most popular brands and manufacturers.

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Clawing Back Copyrights?

Kawhi Leonard sues Nike over the copyright to a logo

June 4, 2019

On June 3, 2019, Kawhi Leonard, a professional basketball player currently with the Toronto Raptors, sued Nike over the rights to a logo.[1] Leonard contends he personally created the logo and owns the copyright to it, but that in 2017, without his knowledge or consent, Nike filed an application to register the copyright to this logo.[2] From October 2011 through September 30, 2018, Leonard was a sponsored athlete under the Nike® brand. According to the lawsuit, he signed a standard “Men’s Pro Basketball Contract” with Nike to be a sponsored athlete. Throughout the duration of this relationship, Leonard endorsed Nike products and Nike used Kawhi’s name and image to promote its products.

This is why the purported rights to the “Leonard Logo” are relevant.

Leonard’s lawsuit seeks to resolve who owns the copyright and possible trademark rights in a logo he claims to have designed himself. The interesting twist is that even if Kawhi created the logo by himself – that fact alone does not resolve the dispute.

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The Added Burden of Artistry: Copyright Registration as a necessary pre-requisite

Copyright law is an interesting subsection of the legal field. Fun fact: the Founding Fathers cared more about protecting copyrights than any nebulous free speech rights. The right to copyright is established in the original U.S. Constitution enacted in September 1787. The Bill of Rights did not exist until 1789.

Additionally, one of the really cool quirks about copyrights is how they are created. Copyright exists “the moment it is created and fixed in a tangible form.” Alas, this cool quirk appears to only be true in form, but not in substance. For the United States Supreme Court recently ruled that before you can enforce a copyright, you must first go through the complete administrative process of registering that copyright with the Copyright Office.

While the Court recognized that it is not an ideal situation, it effectively threw its hands up and said “the law is the law” without really addressing the downstream effects. I would now like to take the time to do what the Court would not, and address the direct effects of this new “registration is required” copyright world.

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Put Your Name On It! President Trump and IP Ownership

What does President Trump own?

April 5, 2019

If there is one singular, defining character trait of Donald J. Trump, it is this: he really, really likes putting the TRUMP name on things. Hotels, casinos, residential towers, television shows, books, golf courses, beauty pageants, steaks, universities, business plans, and on and on. It is kind of his thing. And he is exceptionally good at marketing the Trump name when he uses it.

The moment Donald Trump ran for president, and was subsequently elected – the ways he could use market that TRUMP brand grew exponentially. And I do not use the term “brand” lightly. Because for someone like me, the underlying question is this: what IP rights in his name and likeness does Donald Trump still own? Most recently, Trump has put the TRUMP brand on images of the White House. These images are now subsequently being sold online and at his various hotels.

I have written about some of these issues before,[1] and once again, I will not try to address any issues with the emoluments clause of the Constitution. Nor will this article be about the purported morality of such things, but instead an analysis of what IP rights are available for protection. Can President Trump own copyrights of his image? Can President Trump use the TRUMP name as a trademark and protect it like a private citizen? Can President Trump use White House and U.S. government imagery in tandem with his name and assert personal rights in these products? It is not such an easy answer.

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Someone should petition to cancel the SUPER BOWL® trademark registration

Last night, the Los Angeles Rams and the New England Patriots played Super Bowl LIII. It was one of the worst exhibitions of professional football in a long time, and certainly the most boring Super Bowl to date. Enough people will be writing about that game today, but I see it as an opportunity to further discuss the NFL’s SUPER BOWL® trademark. And this is why:

The NFL is a known trademark bully. Someone should petition to cancel its SUPER BOWL® trademark registration. And I think I have found a way for this petition to be successful. The NFL fraudulently acquired the registration and it should be canceled.

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Pay to Play: Nirvana sues Marc Jacobs over clothing line

January 2, 2019

On Friday, December 28, 2018, Nirvana, LLC[1] sued Marc Jacobs International, Saks Fifth Avenue, and Nieman Marcus for copyright infringement, trademark infringement, unfair competition, and false designation of origin under the Lanham Act.[2] The crux of the dispute is over a new line of clothing being introduced by Marc Jacobs dubbed “Bootleg Redux Grunge” that he intends to sell to the public at Saks Fifth Avenue and Nieman Marcus stores. In short, these “grunge” clothes are being marketed to a high-end socioeconomic demographic that is antithetical to everything Kurt Cobain and Nirvana stood for. Because of course they are.

The real dispute is over the appropriation of the iconic Nirvana “smiley face” logo and what Nirvana contends is a derivative, non-transformative use by Marc Jacobs. I will not go too in-depth on the specific claims other than to say: yes, this is an infringement and Marc Jacobs is most certainly trying to associate this clothing line with famous Nirvana trademarks and copyrighted works. It is shameless. Everyone involved should be embarrassed. Yes, including Nirvana’s own lawyers – for reasons I will address.

Of course, I am biased. Nirvana is my favorite musical group of all-time and hearing “Smells Like Teen Spirit” for the first time when I was 14 years old was nothing short of a life-changing experience. Like millions of others, I also own one of the famous “smiley face” t-shirts and other merchandise bearing that image. This is a blog about trademark and copyright law, meanwhile – so let us break down the claims made against Marc Jacobs.

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