Posts by Elisabeth Moriarty

Elisabeth Moriarty has significant entertainment and commercial litigation experience. She has represented plaintiffs and defendants in a variety of high-profile matters involving copyright, trademark and trade dress infringement, unfair competition, the licensing of intellectual property rights and complicated partnership and shareholder disputes.



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 . . . »



Six Degrees of Sun Tzu: Fair Use and the Art of War

Let’s play a bizarre twist on a familiar trivia game I like to call “Six Degrees of Sun Tzu.” If I challenged you to connect the author of Art of War (a 2,500 year old Chinese treatise on military strategy) to the author of a listserv posting (the distinctly 21st century phenomenon of social media), how many degrees do you think it would take you to do it? Here’s betting you won’t beat Judge Dolly M. Gee of the United States District Court for the Central District of California, who accomplished the feat in just one move.

Judge Gee recently (and hilariously) smacked attorney Kenneth Stern upside the head for filing a lawsuit claiming that the forwarding of a single, 23-word sentence he had posted to a listserv email list constituted copyright infringement. The Court’s legal analysis opens by quoting a phrase — in Chinese characters — from Sun Tzu’s Art of War(the Court translates it in a footnote): “He will win who knows when to fight and when not to fight.” What, you ask, could possibly prompt the Court to cite with approval the theories of an ancient Chinese military general in a copyright infringement case? Here are the facts:

Worried that a forensic accounting firm he had retained was overcharging his client, Stern posted a question to the Consumer Attorneys Association of Los Angeles listserv, asking if anyone else had experienced overbilling problems with the CPAs. Another listserv member emailed the posting to his sister (a non-member), who was a client of the accounting firm. She, in turn, forwarded it to the CPAs. Then it got interesting. Continue reading the full story . . . »



Who’s Afraid of the Big Bad Privilege?

You may not know it to look at me, but I have a very macabre sense of humor. I adore the books of Edward Gorey and, in particular, The Gashlycrumb Tinies, a spot-on and (for those who are into tragic juvenile demise) hilarious parody of children’s ABC books in which each of the rhyming couplets recounts various unusual ways in which children have met ghastly fates: “A is for Amy who fell down the stairs. B is for Basil assaulted by bears. C is for Clara who wasted away. D is for Desmond thrown out of a sleigh…” (Not that I’m ever bored at work, but I’ve had a photocopy of “N” posted on my computer for years: “M is for Maud who was swept out to sea. N is for Neville who died of ennui.”)

I’m also a huge fan of Shockheaded Peter, a nightmarish and (again, for those who love young children meeting ironic fates…should my own daughter be concerned by this?) hilarious spectacle/stage production based on a 19th Century German book of children’s cautionary tales by Heinrich Hoffman, in which rude and naughty children all meet gruesome, yet well-deserved ends. Take, for example, “Fidgety Phil,” the tale of a boy who refuses to sit still at the dinner table and is impaled by cutlery when he pulls off the tablecloth at dinnertime. Or “Snip Snip,” in which an incessantly thumb-sucking boy bleeds to death after an evil tailor cuts off his thumbs (his mother reacts simply by saying toldya so!). The last line of virtually every song concludes with the matter-of fact sentiment: “And he was DEAD.” “And she DIED.” The end. You can imagine what happens in “The Dreadful Story of Harriet and the Matches”…

Well, remember the Troubling Tale of the Two-Steppin’ Toddler? No, it isn’t in the Second Act of Shockheaded Peter, but it certainly qualifies as a Litigation Cautionary Tale in my book.

This Dreadful Story — or, as it is more commonly known in legal circles, the Lenz v .Universal case — began with a dancing baby. We’ve covered this ground before, but let’s review the highlights: Continue reading the full story . . . »



This Valentine’s Day, Ask Yourself: What’s So Funny ‘Bout Peace, Love and…Popcorn?

Whether you are a hopeless romantic or a cynical sort (read: single person) who feels that Valentine’s Day is just an excuse for card companies to sell more paper products (how environmentally unsound!), you simply can’t escape Cupid’s arrow this month — assuming you define “Cupid’s arrow” as incessant advertising about Valentine’s Day. John Paul Young called it way back in 1978: everywhere you look around, there are red roses, and pajamas with hearts on them, and canoodling couples tearfully opening diamond engagement rings together, and candy and just about any other foodstuffs that can somehow be branded with a “love” theme.

You may find Valentine’s Day cheesy, or perhaps even annoying. I get it (believe me, I get it — I spent an hour last night cutting 20 valentines out of red cardstock for my daughter’s second grade class project, and have the numbing, carpal-tunnel like pain in my right index finger to prove it…). But can you truly take issue with something that attempts to foster peace, and love, and harmony? I never thought I’d turn to NASCAR for pearls of wisdom, but really, who doesn’t love love?

Well, at least one small business owner in Texas thinks that the Valentine’s Day experts at 1-800-FLOWERS actually hate love. And peace. Probably puppies too. And possibly America and freedom, as well, but let’s not get carried away. Continue reading the full story . . . »