Much of the independent video game world is up in arms regarding the recent news that large UK game developer King.com has “trademarked” the word CANDY. Many see this as an attempt by a Wonka-esque behemoth to grab control of a common word in order to crush its smaller competitors like some piece of common confectionary. While there may
[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.
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
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?
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’sRequiem 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.”)
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?
Time to panic? The Internet is about to change dramatically.
Ever since Al Gore invented the Internet (or so I’ve heard), users have relied on a limited number of top-level domains, or “TLDs.” A top-level domain is the end portion of a web address — e.g., .com, .net, .org, .biz, .gov, or, everybody’s newest, favorite, and most scandalous TLD, .xxx. Last year, the Internet Corporation for Assigned Names and Numbers (“ICANN”) — a non-profit corporation/venue for nerds to rule the world that manages most TLDs, IP addresses, and basically anything that involves the interwebs — approved the creation of new TLDs called generic top-level domains, or “gTLDs”. In announcing that move, ICANN cited the need to increase competition and choice in the world wide web (because we know that there certainly isn’t enough competition and choice in the entire Internet). Any legal entity may apply to create and manage a gTLD. And that’s why, as people are finally starting to realize, things might start getting a little crazy(er) on the Internet.
Let’s play a game. It’s called Guess-Who-the-Trademark-Owner-Is. (I wanted to call it “Guess Who,” but didn’t want to risk confusing you with products/services of Hasbro or The Guess Who.) Wait! Don’t stop reading yet! This will be fun.¹ Sort of.²
Here is the game. Imagine you walk into a supermarket to get some food for a party. Once inside the supermarket, you are uncontrollably lured to the deli counter by the siren call of fried chicken. You look down at the chicken deciding what type to purchase for the party. You settle on the “Chipotle Spicy Fried Chicken,” because you want to impress your friends by showing them that you can handle spicy food. (Sadly, deep down, you know that chipotle isn’t really that spicy and that your friends know this too. Who are you kidding anyway?)
Now, guess what company cooked up the delicious looking Chipotle Spicy Fried Chicken that you selected (right side of the picture below)?
After you guess, continue reading to find out whether you win a prize or not.
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?
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?…