Generic Fair Use

... where pop culture meets intellectual property law

Tag: false sponsorship

Bait and Switch Advertising in 2020: Is Grubhub violating the Lanham Act?

Even in the midst of a pandemic and an unofficial national lockdown, people still have to eat. With outings to the local restaurant and trips to the grocery store being potentially risky, food delivery services have become an essential part of American life in 2020. For large-scale service providers like Grubhub, it has been a relative goldmine for business.

But is Grubhub scamming us all? On May 15, 2020, BuzzFeed reported that even if you seek to bypass Grubhub service fees by calling restaurants directly, you may have been fooled by a bait-and-switch phone number. These restaurants are still paying Grubhub for extra fees.

How is this legal? More specifically, is this a violation of the Lanham Act for false advertising or customer confusion and deception?

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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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Hey, Stop Using My Song For Your Campaign!

Can musicians and artists legally demand that politicians not use their works?

Recently, the Rolling Stones sent a notice to Donald Trump demanding that he cease using their songs at his campaign events across the country. This is not the first time an artist has objected to a politician using certain songs or related works in conjunction with a political campaign. It is practically a rite of passage for a high-profile politician to anger a musician with a particular choice of campaign theme song. This is an American trend that dates back at least to the early 1980s, when Bruce Springsteen upbraided President Ronald Reagan for using “Born in the U.S.A.” as part of his re-election efforts.[1]

Of course, the Rolling Stones are not an American band. Plus, by now we all know that Donald Trump is not exactly the type of person to back down to what may be a toothless demand. Trump might all too willing to cite 250 years of American history by telling the Rolling Stones to take their demand and shove it. He thrives on this type of attention after all. But that is not the question. The real question is this:

Can Donald Trump (or most any politician) use any song they want for a campaign without obtaining the musician’s permission?
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