Posts In "Trademark"

Trademark




Lessons Learned as a Lawsuit Over Cult-Classic Porno-Chic Flicks Is Prematurely Evacuated

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 . . . »


Panties in a Twist

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 . . . »


Q&A: Can I Use the Same Title for My Movie as a Little-Known Studio Film from the 1970s?

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 . . . »


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 . . . »


No, You Can’t Change Your Name to Dotcom (Unless You’re a 30 Rock Character)

This blogger knows a little something about name changes, since I am in the process of changing from my maiden name to my married name (and still receiving almost daily emails saying “Rachel who???”). As I learned in the days leading up to the wedding, in California, when you get married you have a few options as far as changing your name. The wife can take her husband’s last name, the husband can take his wife’s last name, or both people can change their last name to some combination of the two. (I lobbied halfheartedly for “Wilchie,” but no dice.)

Outside of the marriage context, however, formal name changes must be done in court. While this certainly allows for more variety and creativity in the selection of a new name, the statutory name change process is more intricate. Among other things, it requires publishing notice of the requested name change in the newspaper for four weeks, ostensibly to give potential creditors and interested government officials an opportunity to discover any nefarious attempts to avoid them by changing one’s name. (L.A. Laker Ron Artest’s name change to “Metta World Peace” — really — was initially delayed by outstanding parking tickets.) Apparently, it hasn’t occurred to any enterprising legislator to revise the law to allow name-changers to Tweet their new names, or post them to Facebook or Google+.

Even in the absence of a formal name change, you can always ask people to call you whatever you desire, a request that lawyers have jargonistically dubbed a “common law” name change. (For example, I’ve told my colleagues who can’t deal with my new last name that they may now refer to me as “The attorney formerly known as Wilkes.”) But even in Hollywood, the land of self-invention and reinvention — where celebrities name their children after everything from fruit to superheroes — there is still a limit as to what people can legally call themselves. Just ask cannabis activist, convicted felon, perennial candidate for New Jersey political office, and Los Angeles transplant Robert Edward (“Ed”) Forchion, Jr., who learned firsthand last month that the sky’s not the limit when it comes to statutory name changes in California, when the Second Appellate District affirmed the denial of his petition to change his personal name to the name of his website, NJweedman.com. Continue reading the full story . . . »


A Tale of Two Tents: Functionality in Utility Patents, Design Patents and Trade Dress

The problem you have as a lawyer is that you start to see the “law” in everything you do, including those things you do for fun.

I backpack. And I am just a tad overweight, which I means I have a few extra pounds to lug around the woods for 10 miles at a time. While a more sensible man might look to simply lose those extra pounds, however, I have opted instead to eat more cookies and look to lower the weight of my pack.

The easiest way to lower pack weight is to lower the weight of one or all of the “big three” — the pack itself, the sleeping bag or the tent. So, before every trip, I spend hours and hours researching the latest in ultra lightweight gear, focusing most intensely on these three categories of backpacking equipment. This would seemingly have nothing at all to do with the law.

But then, enter the tents. Continue reading the full story . . . »