Ken Basin

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Unless you live here, I’m assuming you’re aware of a little football game taking place this weekend between the New York Giants and the New England Patriots.  (Hey, wait a minute, that sounds awfully familiar…)

I’m as excited as anyone for the game, which is why, this Sunday, I might try to find a local bar hosting a Super Bowl party. But I’ll probably be out of luck, unless I’m willing to go to a “Big Game” party instead. And if I’m feeling spendthrift — the always-confusing word that sounds like “thrifty” but actually means “profligate” — I might try to pick up a new flat-screen TV at a Super Bowl sale. But unless I’m willing to settle for one of those ubiquitous “Big Game” sales, I’ll probably be forced to stick with what I’ve got.

Every year, while every sports yak in America is obsessing over Super Bowl scouting reports, every business in America is trying to capitalize on the game. But most of them aren’t using the words “Super Bowl” to do so, and the reason is fairly obvious: the phrase “Super Bowl” is trademarked by the NFL, which is famously protective of its intellectual property. Moreover, the privilege of using the phrase “Super Bowl” in advertising is one of the valuable rights bestowed by the NFL upon its advertisers and promotional partners — which gives the NFL extra incentive to keep freeloaders from poaching the phrase (thereby diminishing its value to potential paying promotional partners).

But what if the NFL is wrong? What if I really could check out the Super Bowl party at my favorite watering hole without them being subjected to the threat of legal doom?

Guess what, kiddies: I can. Continue reading the full story . . . »

Elisabeth Moriarty

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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 . . . »

Amber M. Burroff

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It appears I’ve found a blogging niche:  the seedy, salacious, saucy legal topics everyone is too scared (or maybe smart) to write about.  (And this topic doubles as a nice relief from the usual “holiday shopper gets mauled in battle over the last available Let’s Rock Elmo“ headlines.)  Colleges, universities and businesses spent this holiday season shopping for a special kind of XXXmas gift — the gift of a good name.

On December 6, 2011, the new domain extension .xxx was gobbled up by the most unusual suspects, with more than 55,000 new names registered within the first 24 hours.  The .xxx top level domain (TLD) was designed — prepare to be shocked here — exclusively for adult entertainment content.  But ICM Registry, which is operating the new TLD, also opened up registrations to other organizations looking to protect their trademarks from scandalous misuse — or from those nefarious “cybersquatters” who might be looking for a buck NOT to put the domains to no good (like the brilliant entrepreneur who, in the wonder years of the Internet, operated WhiteHouse.com as a porn site (the real website is WhiteHouse.gov).

In other words, the Internet’s new red light district is open for business to those who were naughty OR nice this Christmas.  But are the nice kids who come to the new .xxx marketplace late going to be at the mercy of the fast movers on the naughty list? Continue reading the full story . . . »

Amber M. Burroff

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Remember the “senior superlatives” from your high school yearbook? Maybe you were voted “most likely to succeed” or “most likely to be a rock star.” Me? My dear classmates graciously awarded my best friend and me the title of “Most Likely To Be in an X-Rated Movie.” (It was unclear whether we were supposed to star in it together or what.) At the time, I pretended it was a compliment, smiled and curtseyed, and then secretly vowed to spend the rest of my life proving them wrong. Well Bellingham High School Class of 2002, now I realize what you actually meant to say: Amber M. Burroff, “Most Likely To Write a Sassy and Salacious Legal Blog About an X-Rated Movie.”

So, here’s the scoop. In April 2009, Arrow Productions, Inc., owner and distributor of Deep Throat — a tastefully-titled carnal classic whose plot (the sexual adventures of a sexually frustrated woman who is in search of the saucy secret to the female orgasm) is surpassed in greatness only by its tagline (“How far does a girl have to go to untangle her tingle?”) — filed suit against VCX Ltd. and its owner, David Sutton, alleging a variety of claims for copyright and trademark infringement arising out of VCX’s unauthorized distribution of Deep Throat. According to Arrow’s complaint, VCX and Arrow are both in the business of “selling prerecorded sexually oriented motion pictures for personal home use, presently and, in recent years, in DVD format and previously in VHS videotape format.” (Translation: “we sell porn.”) And in addition to competing for sales of Deep Throat, Arrow and VCX have both long distributed one of the other seminal classics of the “Golden Age of Porn,” Debbie Does Dallas.

Last month, though, after two and a half years of down-and-dirty legal combat, Arrow and VCX suddenly settled the lawsuit, with the parties agreeing that Arrow would hold the exclusive rights to Deep Throat, while VCX would move forward as the exclusive distributor of Debbie Does Dallas. So now that this long-running battle over two titans of adult film history has come to a sudden and anti-climactic finish, what lessons can we learn? Continue reading the full story . . . »

Lisa Y. Wang

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Sometimes mistakes are made by accident. Sometimes mistakes are made on purpose (which, I guess, makes them not really mistakes). And sometimes, mistakes are made by, um, stupidity. File this one under stupid.

The Attorney General of the Navajo Nation recently sent Urban Outfitters a cease-and-desist letter, demanding that the corporation stop using the Navajo Nation’s trademarks to sell clothing and accessories that are completely unrelated to the Navajo people. Urban Outfitters’ (extremely tasteful) line of 24 “Navajo”-themed items included such surefire crowd-pleasers (pictured below) as the “Navajo Hipster Panty” and the Navajo flask — especially charming, I’m sure, to a Native American community that has long struggled with alcoholism and whose alcohol-related mortality rate is nearly 12%. Or maybe the style-makers at UO just hadn’t heard.

Just a few items from Urban Outfitters’ site described as “Navajo."

But Urban Outfitters’ “Navajo” product line wasn’t just culturally insensitive (not to mention egregiously ugly). It was also probably a violation of both trademark law and the Indian Arts and Crafts Act of 1990. Continue reading the full story . . . »

Jesse Saivar

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Q: I’m in the process of wrapping up a movie. I just discovered that the title we’ve been using, and the title I love, was the title of a little known [major studio] film from back in the 70s. Can I still use the title?

A: Faithful readers, it’s so nice to be with you again. You may have noticed that the last few blogs from our Q&A team may have contained a few stale references. You may have asked yourself “why are these guys trying so hard to be pop culture relevant by bringing up A Prophettwo years after it was released?” Or “what’s up with the German broccoli references?” Or (for our more avid readers) “I’ve memorized every brilliant word written by these brilliant minds and I know I’ve seen this brilliant blog before!” Well, faithful readers, we were tired of watching all you independent documentarians and shoestring filmmakers line your fat pockets with millions based on our legal advice without seeing anything but pathetic adoration in return. We took a cue from our football and basketball brethren and decided a little work stoppage was in order. We’re transactional attorneys, dammit! If we can’t kill a good thing with overzealous unrealistic negotiating, we’re not doing our jobs! So we’ve been holding out… I’m happy to report we’re now banking 13 peanut M&M’s per blog (peanuts removed). (In reality, we were kinda just busy hanging out on the couch.)

In honor of an historic event like this (I love saying “an” before “historic”), I wanted to entitle this blog The Comeback – The Day the Screaming Stopped. But wouldn’t you know it, some jerk already took that title. Which so nicely brings us back to your question. Continue reading the full story . . . »