Posts by Elisabeth Moriarty

Law Law Land’s Seven Second Delay button is manned by a woman, Elisabeth Moriarty, a Greenberg Glusker lawyer who specializes in litigating high profile disputes involving profit participation, motion picture production and distribution, rights ownership, copyright and trademark infringement, and other entertainment-related conflicts. Far from being the Will H. Hays of our blog, Elisabeth embraces wince-inducing puns, edgy links and the occasional potty joke, particularly in her own posts. She helps maintain Law Law Land’s integrity through her hypnotic powers of persuasion and her recognition that our readers don’t want tuna with good taste; they want tuna that tastes good.

Can You Be Forced to Get Your Halloween Scares From a Billboard?

My daughter has always been squeamish about eyeballs.

Ask her to name the scariest movie of all time?  Who Framed Roger Rabbit, of course.  She saw it once (and only once) at the age of four, and the scene near the end, in which the flattened Judge Doom re-inflates himself and reveals the malevolent Toon lurking beneath his popped-out prosthetic eyeballs, scarred her for life.  And so, our family will always fast-forward past the melting of Nazi agent Toht in Raiders of the Lost Ark, decline to mourn the loss of Mad-Eye Moody in Harry Potter and The Deathly Hallows, Part I, and just steer clear of the absolute abomination that is Large Marge in Pee Wee’s Big Adventure.

I mention all this so that you will understand the sense of abject horror and dread I experienced when, several weeks ago, I drove to work down Motor Avenue and found myself face to face with a giant, eerie nun, her face as white as alabaster, crying (or bleeding?) black liquid from alien-like eyes.  It was a (thoroughly disturbing) billboard for American Horror Story: Asylum looming over the entrance to Fox Studios.  Adjacent to our beloved dog park.  Big as the Times Square Jumbotron.  I knew my daughter would freak out, and freak she did.

She insisted that I call the studio and demand that the billboard be removed immediately, which gave us the perfect opportunity to discuss that little thing called the First Amendment.  Once I got going, she quickly went from billboard-ed to bored, and ultimately resolved to cover her eyes with a sweatshirt if I would simply shut up.  But the issue stuck with me.  As an attorney, I’m comfortable with the fact that First Amendment expression should not be unduly chilled by a ten-year-old with a (perhaps unreasonable) eye phobia.  But the mom in me took umbrage at this offensive (or at least unsettling) billboard content.  Should Fox have the right to upset my kid on a daily basis in its attempt to bring more “eyeballs” to its advertisers? Continue reading the full story . . . »

The Flame, the Fanfare, the… Filings for Infringement?

I am a complete sap when it comes to the Olympic Games, and have been since I was an uncoordinated, bespectacled suburban kid with bad depth perception and a penchant for getting injured at seemingly innocuous backyard games like badminton and kickball.  While I’m relatively indifferent when it comes to sports generally, there’s something about the nations of the world coming together, even for a brief moment, in a global spirit of cooperation…it’s uplifting, energizing even.  It makes me hopeful for the future of humanity, something of which I’m fairly skeptical most other weeks of the year.

And so, when the siren call of that infectious Olympic theme began to ring out during every NBC commercial break, I started trying to get my daughter psyched about the upcoming London games.  At first, she wasn’t that interested — her mind is too preoccupied with summer camp, our dog Olive’s latest attempt to eat the telephone, and getting past a streak of four in Plants vs. Zombies Vasebreaker Endless.  But she’s coming around.  Last week, she asked me what the Olympic rings symbolized.  We did some hard-hitting research and learned that the multicolored interlocking rings, designed by Baron Pierre de Coubertin (the founder of the modern Olympic Games) in 1912, “represent the five parts of the world which now are won over to Olympism and willing to accept healthy competition.”

Hmm.  “Willing to accept healthy competition,” you say.  Really.

Well, I think somebody better clue in the United States Olympic Committee, and fast.  You see, in the same Google search that brought me the lofty ideals of Baron Pierre, I learned that last month, the USOC sent a cease and desist letter to Athens Voulgaridis, the owner of Philadelphia restaurant Olympic Gyro.  The USOC claimed that Mr. Voulgaridis infringed on the Committee’s exclusive rights in the word “Olympic,” and it demanded that he delete the word “Olympic” from the name of the eatery he opened nearly 30 years ago.

Don’t the modern Olympic Games derive from an ancient sporting event held in Olympia, Greece — one that preceded United States copyright and trademark law and indeed, the good ole U.S.A. itself, by thousands of years?  Shouldn’t Mr. Voulgaridis be able to name his Greek restaurant in honor of his home country?

Apparently, the United States Congress is unmoved by such incisive Socratic reasoning. Continue reading the full story . . . »

A Major Brew-haha on Tap

In honor of Dr. Martin Luther King Jr., last Monday my husband and I found ourselves with three glorious hours to kill midday, while our daughter visited a friend.  We could have cleaned out the garage, but instead we went to lunch at a new-ish bar and grill which prides itself on serving over 100 beers on tap.  As I perused the vast beer menu, I was struck by the creativity (and in some cases absurdity) of the names these breweries had invented for their ambers and ales.  There were a few that were a bit embarrassing (“Flying Dog Doggie Style Pale Ale?”  Seriously, I don’t think I can’t ask for that without blushing, so it better be good).  Some made me laugh out loud (I thought “Unibroue Ephemere Cassis” was hysterically punny, until I learned that “Unibroue” is the actual name of the Quebec-based brewery).  Few names were conventional and many were downright clever.

I knew vaguely about the ancient and globe-spanning trademark dispute between American brewer Anheuser-Busch and the Czech beer producer Budejovicky Budvar over the right to use the trademarked name “Budweiser” — a battle which has been brewing since 1870.  But with so many beers and so many creative names and logos, I wondered, as even slightly tipsy lawyers tend to do, how often breweries found themselves in a legal kerfuffle over their beloved (and lucrative) alcoholic beverages.  Aren’t these guys supposed to be mellow and laid back (well, except, perhaps, for the guys who make Arrogant Bastard Ale)?  They make beer, for Pete’s sake.

Well, it turns out that brewers stir up litigation more often than you might think. Continue reading the full story . . . »

Do They Serve Damn Fine Coffee in a Breastaurant?

Okay, mind association-game time. If I say “Twin Peaks,” what immediately leaps to mind? Poor, murdered Laura Palmer, earnest Special Agent Dale Cooper, lumberjacks, log ladies and one-armed men, right? Oh, and Hooters, of course.

That’s right, I said Hooters, in all its scantily-clad-waitress-hiring, chicken-wing-serving glory. You see, Hooters of America has got its lingerie all in a bunch over a rival chain of “Twin Peaks” restaurants. (Their slogan? “Eats, Drinks, Scenic Views.” You can’t make this stuff up, people; not even David Lynch is that good.) The Twin Peaks business model, apparently, involves scantily-clad waitresses serving chicken wings in a mountain-themed restaurant. Hooters claims that when a former executive left Hooterville to join Twin Peaks-operator La Cima Restaurants (yep, as in “mountain top”), he took with him a stash of highly confidential, sensitive Hooters business data that La Cima then used to create the Twin Peaks restaurant model. A nasty B-cup battle is now brewing (ok, maybe a D cup, but I’m all about the alliteration) in Georgia federal court over this purported trade secret violation.

Call me crazy, but for something to be a trade secret, doesn’t it need to be, um, secret? Seriously, is there anyone over 18 on the planet who doesn’t know the “secret” to Hooters’ success? We’re not talking about the formula to Coke here. Does “boobs and beer” qualify as a highly classified trade secret these days? (Victoria may beg to differ, but what does she know?) Continue reading the full story . . . »

A Trademark Claim Only Mr. Whipple Could Love

For the past six months or so, my life has been all about poop. You see, my daughter and her friends have entered into a charming phase in which no opportunity to make a poo, pee or fart joke goes unmissed. (This morning’s latest gem, about a Kenmore commercial touting large capacity refrigerators: “Mom, did you hear? They said: ‘We put more in so you get more out’ — hah… they put more food in so you can ‘get more out,’ in poop, get it?” Sigh.)

At first we tried to put a lid on this toilet humor; but now we just, um, go with the flow. (Gah, it’s contagious!) My husband has frankly adopted the “if you can’t beat ‘em, join ‘em” approach, serenading my daughter and me with an obscure Bobby Bare country song that used to play on a.m. radio when he was growing up in Montana. I think even you city folk will get a chuckle out of the lyrics to “Bathroom Tissue Paper Letter.” Case in point:

When I got home this evening about a half past ten
And found she wasn’t waiting so I let myself on in
I headed for the icebox to get myself a beer
And found that little note that said my baby wasn’t there.

There was a bathroom tissue paper letter hanging on the wall
She said I just can’t take no more and you can have it all
I’m taking what good sense I’ve got and leaving you behind
And you can take this letter and wipe me from your mind.

C’mon, funny, right? I know — some of you may be feeling a bit sorry for my family and me, mired in, well, excremental humor as we seem to find ourselves lately. But we don’t need your pity. As it turns out, recent trademark news has given me cause to hold my head up high; my daughter, poopy puns and all, can now follow in the footsteps of none other than the esteemed judges of the Seventh Circuit Court of Appeals.

In a suit brought in 2009, toilet paper titan Georgia-Pacific claimed that the trademarks it registered in the quilted diamond pattern used on rolls of “Quilted Northern” had been trashed by competitor Kimberly-Clark, who in 2008 redesigned its premier brand of TP — Cottonelle — using a similar quilted design. Last week, the Seventh Circuit flushed Georgia-Pacific’s trademark claims down the, well, you know. The Court of Appeals upheld the lower court’s finding on summary judgment that Georgia-Pacific’s quilted diamond design was functional and therefore not entitled to trademark protection. And it did so in a hilarious opinion by Judge Terence Evans riddled with, you guessed it, potty puns. Continue reading the full story . . . »

Copyright: More Fun Than a Barrel of Monkeys

This Christmas, my mother-in-law gave my dog-obsessed daughter a gadget that (ostensibly) allowed her to view life through the eyes of our dog, Olive. It was a digital camera that attached to Olive’s collar, and it randomly snapped a picture every minute or so as Olive roamed around our yard and went about her daily, um, business (no, thankfully, it didn’t photograph what was going on at that end of the dog…). Well, we got a lot of pictures of grass and her food bowl, and a couple of catawampus views of our agapanthus and geraniums, which were cool in a canine fun-house sort of way. But I definitely wouldn’t have put any of them in a frame. I mean, I love my dog, but Ansel Adams she ain’t.

Well maybe I should reconsider. You see, a fantastic self-portrait taken by a monkey has been sweeping the internet, and causing quite a ruckus in certain copyright circles. (How is this macaque already better at self-portraits than 95% of people posting their pictures on Facebook?) Apparently, when award-winning nature photographer David Slater momentarily walked away from his tripod while filming black macaques in Indonesia, one of the monkeys took over, snapping hundreds of pictures. It isn’t quite Shakespeare, but the now-famous grinning self-portrait of the chimp is pretty remarkable.

Remarkable enough, it seems, that Slater is trying to steal credit for it. And while this has set off an interesting debate online as to whether, and under what law, Slater might have copyright rights in the macaque’s work, I’m more curious as to what rights the macaque himself ought to have. Continue reading the full story . . . »

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