So what does the world’s largest publicly traded international oil and gas company have in common with the cable network that’s brought us such irreverent comedies as It’s Always Sunny In Philadelphia, Louie, and The League? One fuels America’s engines, while the other arguably powers the laughter of millions of viewers (among which this blogger can certainly be counted). But the similarities don’t stop there! Turns out they both have a fondness for the letter “X”; specifically, two letter “X’s” interlocked along a diagonal line – and this may be a real problem for one of them.
Posts In "Trademark"
[In honor of Super Bowl XLVII — because everyone knows that Roman numerals make everything very distinguished and significant — we're bringing back one of our most-read, and most personally-favored posts. Enjoy your SUPER BOWL PARTY, everyone.]
Unless you live here, I’m assuming you’re aware of a little football game taking place this weekend between the San Francisco 49ers and the Baltimore Ravens. (And maybe, just maybe, you might have heard something — but probably nothing original — about that whole Harbowl storyline. Well here’s a little-known wrinkle about it.)
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, folks: I can. Continue reading the full story . . . »
Why Skip Bayless Should Probably Focus on the Super Bowl and Shut Up About This Whole “Kaepernicking” Trademark Application
So last week, I was on my 173rd consecutive hour of consuming blog articles, news stories, tweets, posts, video interviews, transcripts of interviews, analyses of transcripts of interviews, and opinions on the analyses of transcripts of interviews about Manti Te’o and his imaginary dead girlfriend, when I noticed that something else critical happened in the world of sports. OMG OMG OMG! Did you hear that Colin Kaepernick, NFC champion quarterback of the San Francisco 49ers and flat-billed hat enthusiast, recently “trademarked” his signature, tattooed-biceps-kissing touchdown celebration now known as “Kaepernicking?”
Wait, WHAT?! Does this mean that when I finish this blog, Colin is telling me I can’t celebrate by jumping up from my desk and kissing my beautiful biceps? Have you seen my biceps? It’s hard for me to look down at them and not kiss them! It’s like I have Kate Beckinsale and Jessica Chastain staring up at me from each bicep, lips pursed, like some insane Popeye fever dream.
In my panic, I poured through the incomprehensibly large number of stories about this. But then I had a thought. No, not “What am I doing with my life?” No, not even “What is everyone at ESPN doing with their lives?” No, my thought was “Wait wait… I’m a lawyer, damn it! I actually know what all of this means! These guys don’t!” Continue reading the full story . . . »
Many people consult with psychics. Not an unusual thing to do (certainly not in California). But not a lot of people spend the next 38 years adding rooms to their houses because the soothsayer said spirits would kill them if construction ever stopped. At least one person is reported to have done so: Sarah Winchester, the widow of the son of the famed gunmaker. By the time the heiress died in 1922 at age 82, her seven-room farmhouse had become a seven-story, 160-room Victorian-style mansion, replete with winding dead-end passageways, interior windows, and doors to nowhere.
These types of legends make good movies, which is why a production company approached the owner of the Winchester Mystery House in San Jose, California, to request permission to film there. The owner turned it down, stating that another company had already acquired the rights to the Winchester story. The filmmakers went ahead and made their movie anyway, calling it Haunting of Winchester House and putting a Victorian-style mansion on the DVD cover. You can guess what happened next.
The case that followed, Winchester Mystery House, LLC v. Global Asylum, Inc., represents a classic battle seen frequently in the world of entertainment litigation: the trademark owner who wishes to preserve his exclusive rights to a particular name vs. the artist who wishes to use that name as part of a creative work. And the battleground? The First Amendment, of course. So what happens when the owners of one of America’s most famous haunted houses take on the filmmakers who have gone renegade to tell its (highly fictionalized) story? Continue reading the full story . . . »
We here at Law Law Land are big fans of Halloween, the drunkest,
sluttiest, most creative and fun-loving holiday of the year. Law Law Land HQ itself is awash in cat ears and warlock coats today, and your editor is looking forward to a heaven-vs.-hell, angel-vs.-devil ping pong grudge match of epic proportions tonight. But if you’re looking for a real fright on Halloween night, just consider some of the following truly scary cases and claims.
If the Past Is Never Dead, Does That Mean the Past Is Undead?
William Faulkner famously wrote, “The past is never dead. It’s not even past.” Woody Allen-mouthpiece Owen Wilson less-famously said, in 2011’s Midnight in Paris, “The past is not dead! Actually, it’s not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party.” And Faulkner’s estate is now infamously saying that, if you use Faulkner’s line (ish) in a movie, with attribution, you have broken the law.
Faulkner’s estate is suing Sony Pictures Classics for copyright infringement and trademark infringement, claiming that Midnight in Paris’s misquote of Faulkner’s famous aphorism from 1950’s Requiem for a Nun not only infringes their copyright, but also violates the federal trademark statute by deceiving viewers into believing that the movie was affiliated, endorsed, or authorized by the Faulkner estate. So are Sony’s lawyers running scared into the night? Not likely. But the distant howls you might be hearing are actually the pained wails of frustrated intellectual property law professors everywhere.
(Special kudos to the usually-dry-as-a-skeleton Courthouse News Service for observing, “at risk of offending the shade, or estate, of Charles Dickens: This is a far, far weirder thing than Sony has ever done.”) Continue reading the full story . . . »
Ben and Jerry’s Ice Cream has always been a company with a sense of humor. As Ben & Jerry’s spokesman Sean Greenwood says, “We just do fun.” With flavors like “Chubby Hubby,” “Cherry Garcia,” “Phish Food,” and “Imagine Whirled Peace,” who could disagree? At times, the company has even been accused of having a little too much fun. Some of its racier-named flavors include “Karamel Sutra,” and, of course, the controversial “Schweddy Balls.” The latter flavor was inspired by an Alec Baldwin SNL skit and opposed by groups like One Million Moms, which said, “[t]he vulgar new flavor has turned something as innocent as ice cream into something repulsive.”
Perhaps attracted to the scent of something innocent and pure being defiled, a North Hollywood pornographer called “Caballero Video,” recently released some stomach-churning titles under the moniker, “Ben & Cherry’s.” The pornographer’s lascivious exploits include: Harry Garcia (Cherry Garcia); Boston Cream Thigh (Boston Cream Pie); Chocolate Fudge Babes (Chocolate Fudge Brownie); New York Super Fat & Chunky (New York Super Fudge Chunk); and Peanut Butter D-Cups (Peanut Butter Cup). The complete list of saucy titles (including those too racy for even this blog to reprint) is available in this court order. And of course, pictures of the films’ bawdy packaging that couples the traditional pastoral Ben & Jerry’s theme with NSFW pictures are available for those who “have learned to work the Google on the Internet machine.” (Note: That link points to the IMDB page for Blades of Glory, not pornography. What kind of blog do you think this is?)
Now, Ben & Jerry’s has filed suit in New York federal court against Caballero Video, alleging federal trademark dilution, federal trade dress dilution, federal trademark infringement, federal trade dress infringement, federal unfair competition, common law unfair competition, dilution and injury to business reputation, and deceptive trade practices. The Court has already issued a temporary restraining order, ordering Caballero Video to stop offering the 10 allegedly infringing titles, remove all online mention of the X-rated films, and stop using the trademarked Ben & Jerry’s packaging — at least until a final decision is rendered in the case.
But did the Court err in issuing the temporary restraining order?