The famous Czech writer Milan Kundera once wrote that “business has only two functions — marketing and innovation.”  But some industries — like the alcohol industry — have pretty much hit the limit on innovation (unless you consider things like a tequila bottle top which doubles as a shot glass “innovative”).  This means that the entire business is marketing.  Which is probably why I enjoy drinking the same beer as the most interesting man in the world and think Guinness is good for me.  Just kidding.  But seriously, I do prefer those beers.

As we all know, marketing plans can go awry.  For example, in 2008, a Tustin-based alcohol importer called Sans Wine & Spirits Co. decided to rebrand its tequila “to position it as a luxury brand.”  The “brand enhancement” plan required the Mexican distiller to “use an industrial hand-blown bottle for the tequila,” “a wooden bottle stopper with cork veneer to match other luxury brands of tequila,” and to have a bottle-maker mold an image of an agave agricultural worker into the back of the bottle.  Lastly, Sans Wine & Spirits hired a Mexican design firm to upgrade the label design that the distiller had been using since 2004.  Unfortunately for Sans Wine & Spirits, it turned out that the original label design and the new label design both copied a José-Pablo Fernández photograph sin permiso.  Mr. Fernández was muy molesto (bothered) when he found out and sent Sans Wine & Spirits a cease-and-desist letter.

Now, Sans Wine & Spirits is suing Fernández, preemptively, for a declaratory judgment that the label design is not infringing, and more importantly, if it is infringing, then for a declaration that Sans Wine & Spirits was an “innocent infringer.”

Let’s break down the “innocent infringer” defense. Continue reading the full story . . . »

On a Saturday night in September, I took my wife to the first ever “Call of Duty” convention, hosted by Activision Blizzard inside a hangar on the old airfield where Howard Hughes built the Spruce Goose. Did I tell her ahead of time that I was taking her to a nerd convention where the only food available would be burgers and fries from a recreated fictional in-game restaurant called “Burger Town?” No way! I told her I was taking her to a Kanye West concert! Which was kind of true. Kanye was the “big performance” at the end of the geekfest (which explains why increasingly better looking people started showing up as time went by). Unfortunately, even Kanye’s harem of near-naked dancers could not distract from the utter awfulness of Kanye’s performance. Worst. Concert. Ever. (And yes, he did have an I-am-a-Greek-god theme going on in the background.)

Since that disaster of a concert, Kanye (or “Ye” as he is [unfortunately] sometimes referred to by fans) has been fighting two lawsuits (unrelated to said disaster of a concert, but no promises I don’t start a class action lawsuit out of that one) — one that alleges that he stole ideas for his hit song “Stronger,” and one that alleges he used a sample from Syl Johnson’s song “Different Strokes,” without permission, for Kanye and Jay-Z’s album, “Watch the Throne.” These cases are interesting to look at side-by-side because, while both cases deal with copyright issues, one case involves (allegedly) copied lyrics while the other case involves (allegedly) copied sound. And in the sometimes confounding world of copyright law, that could actually make a huge difference. Continue reading the full story . . . »

For those of us (males) who entered adolescence in the early ‘90s, Angelina Jolie is a semi-celestial being whose very presence makes us want to cry out “we’re not worthy.”  Okay, so maybe the 13 year-old in me still wants to be Crash Override spelling out “CRASH AND BURN” for Acid Burn after defeating The Plague.  But that is neither here nor there.

The news of the day is that a Croatian author/journalist named Josip Knezevic has filed a federal lawsuit (using an Americanized version of his name) against Angelina and several persons/entities related to her upcoming film, In the Land of Blood and Honey, for copyright infringement.  According to Mr. Knezevic, he wrote a book entitled, The Soul Shattering (not to be confused with the World of Warcraft aggro reducing spell, SoulShatter), which Angelina’s executive motion picture producer, Edin Sarkic, allegedly ripped off.  The case is interesting because it not only provides a detailed description of what was ripped off, but it also provides a plausible explanation for how the alleged rip-off occurred.

Continue reading the full story . . . »

Yelp.com describes itself as “the fun and easy way to find and talk about great (and not so great) local businesses.” It proclaims that “[a]s of August 2011, more than 63 million people visited Yelp within the past 30 days.” Its tagline: “Real people. Real reviews.®”

I view Yelp.com as one of the many unnecessary, “Web 2.0” websites I will never use that litters the information superhighway like marine snow in the deep ocean. My wife views it as a source of idle entertainment, where she can enjoy reviews that palaver about Jersey Shore-like drama, before even getting to whether a particular restaurant had good food or not. But some businesses have complained, and even filed lawsuits against Yelp, alleging that Yelp salespeople represent to businesses that Yelp has the power to manipulate Yelp.com business listing pages, and that Yelp will wield that power in favor of the business if it becomes a “Yelp Sponsor” and against the business if it declines to do so.

In other words, some businesses claim that Yelp is the like the internet mafia, asking business owners for protection money to make those bad reviews sleep with the fishes. Is it true?

When I first heard about these allegations, I immediately felt the urge to investigate, particularly given my attitude of “do whatever it takes, ruin as many people’s lives, so long as I can make a name for myself as an investigatory journalist, no matter how many friends I lose or people I leave dead and bloodied along the way, just so long so I can make a name for myself as an investigatory journalist, no matter how many friends I lose or people I leave dead and bloodied and dying along the way.” But then I realized that the East Bay Express already did the whole investigatory journalism thing in a thorough article that Yelp already replied to here. So I decided to stick to what I know best.

Continue reading the full story . . . »

Last Friday, a federal district court in Michigan dismissed the complaint of Richard Pollick, the alleged creator of “diaper jeans,” i.e., disposable baby diapers designed to look like jeans (truly, an invention on par with the piano key neck tie). Pollick registered a copyright for his “Diaper Jeans artwork” in February 1981 and sent the design to Kimberly-Clark Corp. later that year. Kimberly-Clark Corp. eventually started selling Huggies “Jeans Diapers,” and Pollick filed a lawsuit.

Amazingly, this is the second bathroom-related infringement lawsuit to cross our path at Law Law Land in the last few months, proof that you are never truly safe, even on the comfort of your own commode. Unfortunately for Pollick, however, the court took one whiff of his claim and tossed it, ruling that “a simple visual comparison shows that not only are the diapers not substantially similar, they are substantially different….”

Let’s take a look at the evidence. Continue reading the full story . . . »

It might seem axiomatic that whenever you develop a new product or service you ought to immediately register a trademark or servicemark to ensure marketplace protection. And I’m not talking about trademarking “That’s Hot” or “You’re Fired!” I’m talking about real, useful stuff. Like Oxyclean.® Or Chia Pet.®

(Fun fact of the day: you can only use the ® symbol if your mark is registered with the USPTO. Otherwise you are stuck using the ™ symbol, which is just a claim of ownership over a mark.)

Most of the time, promptly registering a trademark is a good idea — not only does it help you establish rights in your own mark, it gives you early warning if you’re going to wind up in a dispute (and ample opportunity to change your mark before you invest too much time, money, and heart into it). But not always. For a good example of the latter situation, just look at the current dispute between ZeniMax Media, the publisher of a series of role-playing games called The Elder Scrolls and forthcoming game entitled The Elder Scrolls V: Skyrim, and Mojang, creator of the popular game Minecraft, and forthcoming game entitled, Scrolls. Continue reading the full story . . . »