Wednesday, September 27, 2006

NH State Troopers v. NH Highway Patrol

New Hampshire State Troopers go to battle with the New Hampshire Highway Patrol (yes, they are different agencies) over the domain name. Good to know that law enforcement agencies are working together.


Monday, September 25, 2006

Contracting Online with Minors

Because contracting with minors wasn't risky enough.


Saturday, September 23, 2006

Who Diddy?

Sean Combs drops "Diddy" in UK to settle unfair competition claim brought by music producer Richard "Diddy" Dearlove. Dum diddy do.


Ebay Auction Supports Personal Jurisdiction

Evan Brown reports on a recent Michigan case regarding jurisdiction over an out of state defendant who auctioned items on Ebay to Michigan resident. Anyone doing business online should be paying attention to these cases.


Brick Oven Style

It may not be trademark infringement, but using the words "brick oven" anywhere near a frozen pizza is just plain wrong.


Friday, September 22, 2006

Insert Bull Joke Here

Sculpter of famous Wall Street "Charging Bull" alleges copyright infringement by Wal-Mart, North Fork Bancorp and others for unauthorized use of the bull image. Details are few. Will try to post more on the story later.


Thursday, September 21, 2006

Rumblin', Bumblin', and Stumblin'

Slate has an interesting article about the declining state of the football highlight show, brought about by extended highlight rights moving from ESPN to NBC, and the rise of the NFL Network. NFL Primetime used to be mandatory viewing for me. I always took some measure of pride when my Dolphins -- in the middle of one of their hot starts (usually followed by a rapid decline) -- were featured in the first fifteen minutes. Sadly, they've mostly been relegated to garbage time for the past decade or so.


29% Of Departing Directors Admit Stealing Data reports: In a survey of 1,385 business people, 29% of company directors admitting to stealing confidential corporate information when they left a company.... 24% of the thefts involved using memory sticks or MP3 players to move data and 18% used email.


Monday, September 11, 2006

Pink Pantha Patrol

The Fens is an area in Boston not far from Fenway Park, the MFA, and the Gardner Museum. It is known for it's community gardens and tall reeds. The maze of reeds have long provided seclusion for people looking for anonymous sex. The Fens has not been immune to Boston's increase in violent crime over the past few years. A small citizen's group calling itself the Pink Pantha Patrol has begun to keep watch on the park. What interests me is the following quote from the article:

The Pink Panther Patrol began in New York City in the 1980s as a community patrol to stop anti gay violence. But the group was sued for trademark infringement by MGM Studios , who argued that they control the Pink Panther name, and the group lost. So Wozniak tweaked the name with a Boston accent.

The New York group was enjoined from using the name after MGM brought a trademark infringement suit. This Times article from 1991 briefly outlines Judge Leval's decision to issue a PI against defendants.

"M-G-M uses its mark to promote an image of lighthearted, nonpolitical, asexual, amicable, comic entertainment," Judge Pierre N. Leval wrote. "The patrol's use of the name is associated with political activism, violence, defiance, homosexuality and angry confrontation."

The judge said the public could be confused into thinking that the patrol and the Pink Panther cartoon character were somehow related.

In the decision, Judge Leval does not reach the state dilution claim, it is based solely on likelihood of confusion.

The Patrol's use of this very distinctive and famous name will raise questions in the minds of the public, as to whether the promoters of the comic Pink Panther are engaged in sponsoring the Patrol's cause and efforts. It raises a likelihood that members of the public will in some fashion associate the plaintiff's enterprise with the defendants'. This is the kind of confusion that the trademark laws are designed to avoid. Such confusion would be likely to have an adverse affect on the value of plaintiff's mark. Such harm to the mark would be difficult to measure and to compensate. The likelihood of confusion resulting from defendants' use of so distinctive and famous a mark is substantial and creates a meaningful risk of irreparable harm.

I have a difficult time buying this reasoning. I would have an easier time buying the decision if it were based on dilution by tarnishment. But even then, would the mere association of the term PINK PANTHER with the gay community be enough to "tarnish" the mark. I should think not. Especially when used by a group to purportedly reduce crime.

The Globe article also highlights a common misconception regarding trademarks. The misconception is that there is no infringement so long as the marks are spelled differently.

Marks do not have to be identical in appearance to be infringing. Changing the spelling of a mark to avoid confusion with another mark which is a phonetic equivalent rarely works. PANTHER/PANTHA. The general legal standard is whether or not there is a "likelihood of confusion" between the marks, not whether or not the marks are identical in appearance.


Sunday, September 10, 2006

How Much For A Virutal Bloody Sock?

Curt Schilling's new MMOG venture. Where's the website, Curt?


Friday, September 08, 2006

Paul Frank Was Their Friend

The long, sad story of Paul Frank's falling out with his partners in Paul Frank Industries is well documented in Vanity Fair. Beyond the interesting study of the all too typical "it's not personal, it's business" scenario, which doesn't paint any of the players in a particularly friendly light, a couple of things stood out.

First, the discussion of how Paul Frank Industries' enforcement of the Paul Frank trademark appears to be hampering Paul Frank (the man) in his attempts to seek new employment or start a new venture presents a pretty mind-bending problem. And Paul Frank Industries' claim that their namesake's name isn't Paul Frank but Paul Sunich (Frank is his middle name), legalities aside, strikes me as terribly petty.

Second, the article notes that after the falling out, Paul Frank (the man) registered the copyright in Julius the Monkey, then sued Paul Frank Industries for copyright infringement. Faced with this, Paul Frank Industries apparently "stumbled upon" a writing signed by Paul Frank in which he assigned his rights in Julius to the company. I'm sorry, stumbled upon? We're talking about the iconic figure upon whom the company was built, and not only did they not think to register the copyright in it previously, but they had to go hunting for the assignment agreement? That's the sort of document you have locked away in a two-ton vault, not floating around in the bottom of a desk drawer.


Steinbeck and Termination Rights

Instructive article from IPFrontline regarding John Steinbeck's children and their right to terminate certain copyright licenses. Note that termination rights trump wills.


Thursday, September 07, 2006

Hendrix lots to be auctioned, including certain copyrights

Ocean Tomo's Fall 2006 IP auction will include the copyright and reel-to-reel recording of a never-released Jimi Hendrix song.

"We are actually selling three lots pertaining to Hendrix: the reel-to-reel recording of 'Station Break'; the master recording rights to 33 songs recorded by Hendrix in conjunction with Curtis Knight; and the rights, title and interest in the entire Jimi Hendrix music catalog as claimed by the estate of Michael Frank Jeffery," wrote Wendy Chou, a representative for Ocean Tomo.

Talk about vague. I would love to see the chain of title documentation for those lots.The "as claimed by" statement is quite telling. Make sure you add in litigation costs before you bid.


O.J.'s Rights of Publicity

Father of Ron Goldman filed a petition in L.A. Superior Court on Tuesday asking the court to transfer O.J. Simpson's rights of publicity to the Goldman family. Simpson has failed to pay any of the $33.5 million judgment stemming from the 1997 wrongful death lawsuit brought by the Goldman family. (via The Trademark Blog)


Sunday, September 03, 2006

110 Phone Calls and 44 Letters

This article about a club in Maine being sued by BMI describes a set of very common facts. Club publicly performs live and/or pre-recorded music without proper licenses from BMI/ASCAP/SESAC and is sued for copyright infringement. The other fact that I think it is important to note is that BMI had been communicating with the club and its lawyer well before the action was filed.

According to Bailey, BMI first contacted the Big Easy's owners, James and William O'Brien, in February 2000, and has since tried to reach them through 110 phone calls and 44 letters to them and to their lawyer, David Hirshon of Portland.

PROs don't sue without first trying, usually over a number of years, to get the club owner to secure a license. The club sued in the last PRO action I was involved with (on the defendant's side) had received at least 18 letters and numerous phone calls over the course of approximately seven years. In my opinion every municipality should have a PRO fact sheet that is given to a club owner when they pull permits for the club. Blanket licenses are fairly reasonably priced and should be built into the cost of doing business for all clubs. Just get the licenses and be done with it. Clubs do not win these suits, they settle and the clubs take a big financial hit that could have been easily avoided.