Generic Fair Use

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Tag: trademarks (page 2 of 2)

“Deadpool” and IP: copyrights, character licensing rights, and comic book movie adaptations

Comic book movies are big business. It was not always this way. Even if it seems that all Hollywood movies today are merely adaptations of comic book characters. Superman and Batman were always popular characters and were the focus of relatively successful movies. This includes the Christopher Reeve Superman movies through the launch of Tim Burton’s Batman franchise in 1989. But the recent trend of superhero dominance at the box office essentially began with Bryan Singer’s X-Men in 2000.

X-Men languished in development for years, but then surprised with a massive box office haul that summer – and made a star out of Hugh Jackman in the process. It also adopted the tone of the comic books and made it safe to adapt the concepts as a movie. The success of X-Men begat the Tobey Maguire Spider-Man franchise, which begat the Christopher Nolan Dark Knight trilogy, and suddenly Warner/DC Comics’ and Marvel’s collective catalog of characters became hot property. Not all characters have been treated equally, however. Batman, for example, will always be seen as a safer bet than, say, Ghost Rider. Movies are budgeted accordingly.

Today, the average Hollywood movie budget exceeds $100 million. This includes salaries for the cast and crew, CGI costs, and in many cases… licensing rights. Yes, your favorite comic book characters are subject to both copyright and trademark protections. Like I said, it is big business.

How do these licensing and intellectual property issues affect the production of a movie for a minor character like, say, Deadpool? Let the games begin!

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Why the NFL does not want you to say “S— B—”… and how the NFL may be wrong

On Sunday, February 7, 2016, the Carolina Panthers® and Denver Broncos® will take the field for the kickoff of Super Bowl® 50. This is the annual showcase game for the National Football League®. In the interim time, the NFL® has assembled an army of lawyers that are ready, willing and able to send a bevy of cease-and-desist letters to any individual or entity that has the audacity to use certain terms or phrases that the league perceives might dilute or infringe famous trademarks that belong to the NFL.[1]

The Super Bowl is practically an American institution, now in its fiftieth year. Many groups contend that the Monday after the Super Bowl should be a national holiday. In fact, a formal petition was once initiated for that very purpose. As a result, you will see and hear numerous advertisements leading up to the Super Bowl promoting numerous goods and services. It is kind of a big deal. What you are unlikely to hear in these advertisements, however, is quite noteworthy. You will rarely hear any advertisement use the term SUPER BOWL.

Why are we reduced to using nebulous terms like “The Big Game” or “The Pro Football Championship” to identify and describe a game? Why is the NFL so trigger-happy in seeking to stop all uses of “Super Bowl” that are not made by direct sponsors of the league or the television broadcast? What is the legal basis for the NFL’s position on this matter? Is it possible that the NFL is wrong? (Spoiler alert: YES!)

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Seek and Destroy: Metallica is antagonizing its fan base over IP rights. Again.

Metallica has always had a love-hate relationship with its fans.  Beginning with its controversial decision to film a music video for the first time for the anti-war song “One” and continuing with the shift from heavy metal thrash to more “commercial” rock songs on the Black Album, Metallica has routinely challenged the expectations of the public.

More famously, on April 13, 2000, Metallica inflamed the good nature of its fan base by suing Napster in federal court for copyright infringement, racketeering, and unlawful uses of digital devices, among other causes of action.[1] As part of this lawsuit, Metallica identified over 300,000 individual users who allegedly copied and unlawfully acquired digital copies of Metallica’s songs through the Napster peer-to-peer (P2P) file sharing service. These users were “temporarily” banned as a result of Metallica’s investigation and lawsuit.[2]  Not surprisingly, Metallica faced a severe public backlash for attacking its purported fans through lawsuits and allegations of copyright infringement. It even inspired a classic South Park episode.

Metallica is accordingly well-known to be litigious. They will strongly enforce trademark rights and all of their copyrights, when necessary. This often does not sit well with music fans that view the band as entitled and out-of touch millionaires. This leads to the most recent unfavorable public relations snafu by Metallica.

On December 30, 2015, Metallica’s lawyers sent a cease-and-desist letter to a Canadian tribute band performing under the name “Sandman.” Why did Metallica go after a tribute band? How is this different from the Napster case?

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NFL Football returns to Los Angeles – and the trademarks are coming with it

On January 12, 2016, the National Football League approved by near unanimous vote the re-location of the Rams from St. Louis to Los Angeles. Los Angeles has not been home to an NFL team since the Rams and the Raiders both left after the 1994 season. In addition to the Rams, the San Diego Chargers also have the option to move to Los Angeles before the 2017 season, which seems likely. The Los Angeles Rams are back in business.[1] NFL Hall of Fame running back (and fellow SMU Mustang!) Eric Dickerson seems pleased with the news:

Not surprisingly, the Los Angeles Rams Football Company, by way of the St. Louis Rams LLC, has already taken steps to ensure that the LOS ANGELES RAMS trademark rights are active and the federal registration has been renewed.[2]  But there remain other trademark issues that arise from this news of relocation.

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Athlete Trademarks are Getting Absurd

Two trademark applications have recently caught my attention.  Both involve NFL players and their offhand comments that have become accidental catchphrases.  I highlight these two as a means of underscoring the recent trend among athletes to seek to register trademarks of all kinds.  Most of these marks, unfortunately, have limited commercial value and a short lifespan for relevance among the consuming public.  While I am a champion for protecting your trademark rights, these two particular applications strike me as nothing short of absurd.

Please allow me to explain…

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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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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 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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