What’s with the Umbrella…ella…ella?

I saw a commercial on tv the other day where a big umbrella was following people around. My first thought was that Citigroup had started a new ad campaign. But at the end of the commercial, it was revealed that the commercial was for Travelers Insurance.

Do you think these are confusingly similar?


Well, it turns out that Citigroup owned Travelers from for a short time, but sold it in 2005.  In 2007, Travelers licensed the trademark rights to the umbrella and has been aggressively using it ever since.

I think Citigroup made a mistake by granting Travelers the right to use its umbrella.  Citigroup is permitting confusion and dilution.  First, I was confused because I thought the umbrella meant Travelers was Citigroup, and pretty soon I wont associate the umbrella with anything since it is no longer exclusively used by Citigroup.


Tricky Dick

Actor Warren Beatty has brought suit against Tribune Co over the film and television rights to Dick Tracy. Back in 1985, Tribune temporarily gave Beatty the rights under the agreement that the rights would revert to Tribune if “a certain period of time” lapsed without Beatty having produced a Dick Tracy movie, TV series or TV special. Beatty used the rights to make “Dick Tracy,” which earned more than $160 million at worldwide box offices in 1990, but had done nothing since then.


Tribune sent Beatty a letter on November 17, 2006, and gave him two years to begin production on Dick Tracy programing or else it would take the rights back. Beatty began a Dick Tracy TV special on November 8 this year, the lawsuit said, and gave Tribune written notice. Tribune responded by saying too little too late, and that it was taking back the rights anyway.

Tribune set an ultimatum but wasn’t prepared for the consequences. It sounds like Tribune made up its mind back in 2006 that it was going to take back the rights whether Beatty consented or not.

Billion Dollar Charlie to the Rescue

This may be old news to most, but the Recording Industry Association of America (RIAA) has sent tens of thousands of letters to people demanding compensation for music illegally downloaded over the internet. The fines usually range between $3,000 to $5,000, and people usually pay it.

Joel Tenenbaum, who was charged with downloading seven songs, decided to stand up to the RIAA with the help of his mother. Apparently, most people in these cases represent themselves, which has led to default judgments for the RIAA.


Luckily, Billion Dollar Charlie Nesson has recently come to Tenenbaum’s aid. That name should sound familiar to law students who read A Civil Action. An entire chapter was dedicated to the Harvard professor.

Nesson and his army of Harvard Law Interns are airing out the RIAA’s dirty laundry by placing all of the court proceedings online. Want to hear the RIAA’s deposition of Tenenbaum? The podcast is online. Want to read the pleedings? They are there too.

Here is an excerpt from Tenenbaum’s argument:

The Recording Industry Association of America (RIAA) is in the process of bringing to bear upon the defendant, Joel Tenenbaum, the full might of its lobbying influence and litigating power. Joel Tenenbaum was a teenager at the time of the alleged copyright infringements, in every way representative of his born-digital generation. The plaintiffs and the RIAA are seeking to punish him beyond any rational measure of the damage he allegedly caused. They do this, not for the purpose of recovering compensation for actual damage caused by Joel’s individual action, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using computers, and so frightening to parents and teachers of students using computers, that they will somehow reverse the tide of the digital future.

The plaintiffs in the suit and the RIAA are abusing law and this court’s civil process. Because Joel Tenenbaum allegedly downloaded seven songs from a file-sharing network comprised of millions of his peers doing likewise, the plaintiffs have already imposed upon him process filling a docket sheet running back over years. Representing himself pro se with help from his mother he has responded with constitutional defenses and a counterclaim against the plaintiffs and against the RIAA for their abuse of law and this court’s civil process.

Joel challenges the constitutionality of the process and statute being wielded against him. The “Digital Theft Deterrence Act of 1999” is essentially a criminal statute, punitively deterrent in its every substantive aspect.

Joel seeks damages to compensate for the actual damage RIAA has done to him and his family. He claims the right to trial by jury including the right to offer proof and argument to the jury about what is right and what is wrong on both sides of this case. In the face of the onslaught the plaintiffs have imposed and are continuing to impose upon him he seeks justice from both judge and jury. At core his defenses and counterclaim raise a profoundly conceptual question: Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs in the machine, or do judge and jury claim the right and duty and power of constitution and conscience to do justice.

Nesson and co. lost in A Civil Action.  Do you think he could prevail this time?

RIAA cartoon

Pretty in Pink

I know this has nothing to do with IP law, but I thought it was an interesting story….

A federal judge just dismissed a case regarding the South Carolina prison system’s policy of requiring inmates caught engaging in sexual acts, including masturbation, to wear a pink jumpsuit.

pink-prison-jumpsuit*Not the actual jumpsuit

The Complainant claimed that the pink jumpsuits place the inmates’ lives and physical well-being in danger. In response, State Corrections Department Director Jon Ozmint said the punishment deters inmates and protects female officers.

Ozmint also said, “We don’t believe the United States Constitution protects an inmate’s right to publicly gratify himself.” I thought this was an interesting statement. An inmate has no privacy, and therefore has no choice but to do ‘the act’ publicly. Also, does a person have a fundamental right to gratify himself? I bet all of the Justices do it.


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From the Studio that Brough You Sunday School Musical…

Fox is a little peeved that its big holiday movie The Day the Earth Stood Still is scheduled to be released along side Asylum’s The Day the Earth Stopped. If you aren’t familiar with Asylum, some of their other coincidently timed releases include Sunday School Musical, The Da Vinci Treasure, and Transmorphers.


Fox brought its claim to the Motion Picture Assn. of America’s Title Registration Bureau, which handles title disputes for the studios and the hundreds of production companies that agree to abide by its rules.

First Amendment issues generally make movie titles difficult to protect unless they achieve secondary meaning, which takes time. However, fifty-seven years have passed since the original film was released, and it has since been selected for preservation in the United States National Film Registry as “culturally, historically or aesthetically significant”, and in 2008, it was voted as the fifth best science fiction film ever made as part of the AFI’s 10 Top 10. Considering these facts, Fox may prevail.


In addition, the likelihood of confusion factor might be considered by the MPAA. The similarities between the movie posters and other marketing materials may also fall in Fox’s favor.


Regardless of the outcome, I won’t be watching either of these films. Nothing beats the original.


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It’s a Dark Knight in Turkey

Though Batman has been fighting crime in comics, television, and movies since 1939, a trademark infringement case was filed last week against the superhero*. The city of Batman, Turkey brought this claim against Christopher Nolan, director of the current Batman film, as opposed to Batman’s creator Bob Kane, publisher DC Comics, or film franchisee Warner Bros.

batman lawsuit

According to Batman’s mayor, “The royalty of the name ‘Batman’ belongs to us … There is only one Batman in the world. The American producers used the name of our city without informing us.”

While this is most likely a struggling town taking advantage of ‘deep pockets’, they do have an interesting, though futile, argument. Since Batman (the superhero) has a worldwide trademark, residents of Batman (the city) are prohibited from using its name in their businesses in any country. So, when one resident opened his Batman restaurant, he was served with a cease and desist letter from Warner Bros. and forced to change the name.


Unfortunately for the town, its claim is much too late. I found trademark registrations dating back to 1966 in the USPTO database. After the fifth year of registration, a Section 15 form is filed, giving the mark an incontestable status. This means the mark can no longer be canceled due to claims that it is confusingly similar to another.

US law does not protect those who sleep on their rights.

* The term ‘super hero’ is a trademark co-owned by DC comics and Marvel comics since 1967.

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Trademark or Generic?

Update: And the answer is…yo-yo!

Yo-yo was a registered trademark of Duncan Toys until 1965, when it was found to be generic in a trademark infringement case against Royal Tops Company. The cost of the litigation forced both parties to shut down and sell their businesses.

Nike Swooshes Walmart to Court

Walmart, the knockoff king of the world, has Nike running to the courts. Walmart makes it a practice to appropriate the designs of others and sell them at a lower quality for a lower price. In Walmart v. Samara Brothers, the megastore got away with copying Samara Brothers’ clothing because of the reluctance of IP law to protect fashion designs.

Walmart may not be so lucky in this case because Nike’s claims involve a possible patent infringement of its Nike Shox shoes. According to Nike, Walmart infringed on two of its 2004 patents for a spring coil-like design in the heals of its athletic shoes.Nike Walmart Shoes

This lawsuit comes just two months after Walmart settled with Adidas over an infringing triple striped shoe. Looks like Walmart’s evil business practices are finally catching up to it.

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Got (fill in the blank)?

We’ve all seen plenty of Got Milk? parodies, so when Mary Kentz decided to create some Got Soy Milk? merchandise for her pet-themed business, she didn’t give it a second thought.

Got Milk Parodies

Well, the California Milk Processors Board thought differently. The Board sent Kentz a cease and desist letter demanding all unsold merchandise and the financial statements of her profits. Kentz, who insists it is a parody, is consulting with her attorneys before proceeding.

Whether this is a parody, making it fair use, or dilution, I don’t know. It’s such a finicky doctrine and doesn’t make much sense to me yet. What do you think? Should she be allowed to profit from her use of this phrase?

Got Soy Milk lawsuit

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Yet Another Reason to Hate Airlines

I adore my puppy, Leela, and am dreading the holiday season when I am forced to leave her behind. I considered bringing her with me, but I can’t bear to think about the trauma of traveling across the country in a crate. I am a firm believer in Murphy’s Law, and could never put her life in the hands of the idiots that work in the airport. Leela Brittany Spaniel

I recently discovered that airlines do not have to report all the deaths or accidents that occur to animals as the result of their negligence. Apparently, the current law only requires airlines to report incidents that involve “animals”, which is narrowly defined as one “that is being kept as a pet in a family household in the United States.”

So when twelve-week-old Maggie Mae was run over by a luggage conveyer machine because the Delta crew forgot they had placed her underneath it, her death did not count. Maggie Mae was not an “animal”; she was en route from a breeder to her new owner and, therefore, not yet anyone’s pet. Because of this loophole, Delta proudly claimed zero reportable deaths this year, but refuses to disclose the number of actual animal deaths.

According to the Department of Transportation, their narrow and misguided definition “properly carries out the mandates of the statute.” The author of the original bill, Senator Robert Menendez, does not agree. “I believe the current policies do not reflect Congressional intent,” he wrote. “I am surprised and disappointed that animals covered by this law have been defined in such a narrow fashion.”

Comprehensive and effective laws regarding animal safety are important because they hold airlines accountable for their negligence. In 2005, the USDA fined Delta $187,500 for various reported incidents, including:

  • The deaths of five of six young German shepherds on a May 2002 flight from Atlanta to Dayton, Ohio. The animals were in a cargo compartment with no cooling or air circulation during a two-hour delay. The pilot turned the engines and air conditioning off to save fuel. “At least one of the passengers heard the dogs barking in a distressed manner,” the USDA found.
  • The death and injury of three female English bulldogs from Asheville, N.C., to Atlanta in March 2000. One dog, named Bonnie, died of asphyxiation; two others suffered respiratory distress. The cargo space lacked sufficient space and ventilation, the USDA found.
  • The death of a young coati-mundi, a raccoonlike animal, in February 2002. The airline failed to give it food or water for four days when its owner failed to pick it up in New York.
  • The loss of a 10-week-old Neapolitan Mastiff puppy that was flown from San Francisco to Newark, N.J., in December 2001. After the flight arrived, the puppy disappeared from its crate. It was never found.
  • The loss of an 8-week-old English bulldog in October 2004. The puppy was flying from Arkansas to Portland, Ore., via Dallas. The puppy arrived in Dallas, but its carrier was empty when the airline put it on a connecting flight. The puppy was never recovered.
  • The death of a cat named Hereford during a November 2003 flight from Portland, Ore., to Greensboro, N.C., via Atlanta. Delta allowed the animal’s owners to fly with two other cats in the cabin. “Delta assured the cats’ owners that Hereford would be safe” in cargo, the USDA wrote. Delta’s staff in Portland noted that Hereford appeared distressed but shipped the animal anyway. The cat was dead on arrival in Greensboro.
  • The October 2004 death of a 5-year-old cat named Smokey en route to Atlanta. The USDA found that Delta agreed to transport the 14-pound cat in a carrier that wasn’t large enough.

Given the option to minimize fines by reporting fewer accidents, it is no wonder the airline industry supports this skewed interpretation of the law.

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