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.
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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.
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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?)
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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.
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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.
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Q: My friends and I recently formed a production company that we plan to use to produce straight-to-DVD movies. We really like the name we picked and think it’s really distinctive. When we formed the company, we had to do a name search with the California Secretary of State. Luckily no identical name came up so I think we’re free to use the name without having to worry about some other company who’s using the same name, correct?

A: Incorrect. To ease the blow of this blunt, negative answer, let me first congratulate you on trying to stump the lawyers, whether you meant to or not. While your question sounds entertainment-y, it’s actually more a question about intellectual property law, and, more specifically, trademark law. Our moms read this blog (and probably make up 50% of our readership); are you trying to make us look bad in front of our moms?!
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It might seem axiomatic that whenever you develop a new product or service you ought to immediately register a trademark or servicemark to ensure marketplace protection. And I’m not talking about trademarking “That’s Hot” or “You’re Fired!” I’m talking about real, useful stuff. Like Oxyclean.® Or Chia Pet.®

(Fun fact of the day: you can only use the ® symbol if your mark is registered with the USPTO. Otherwise you are stuck using the ™ symbol, which is just a claim of ownership over a mark.)

Most of the time, promptly registering a trademark is a good idea — not only does it help you establish rights in your own mark, it gives you early warning if you’re going to wind up in a dispute (and ample opportunity to change your mark before you invest too much time, money, and heart into it). But not always. For a good example of the latter situation, just look at the current dispute between ZeniMax Media, the publisher of a series of role-playing games called The Elder Scrolls and forthcoming game entitled The Elder Scrolls V: Skyrim, and Mojang, creator of the popular game Minecraft, and forthcoming game entitled, Scrolls.
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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.
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I’m a sucker for any show that involves singing (except for, perhaps, this one). So, of course I watched the latest American Idol knockoff to hit the airwaves — The Voice. During one of the show’s episodes, Maroon 5 took the stage to debut their new single titled “Moves Like Jagger.” (CAUTION: Clicking on this hyperlink may result in a semi-ridiculous/incredibly catchy song getting stuck in your head.) Much like the title suggests, “Moves Like Jagger” pays homage to Mick Jagger’s iconic dance moves (luckily, not these dance moves).

After I heard this song for the first time (which turned into hundreds of hundreds of times as it played on loop in my head for about two days), I wondered whether Mick Jagger had any legal remedies to prevent Maroon 5 from using his name in the song title (assuming Mick did not authorize them to use his name in this way). Let’s see what Sir Michael Jagger could do if he decided to do his cocksure strut down to the courthouse.
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Last week, we posted an interview our own Aaron Moss gave to entertainment lawyer/punk bassist/radio host extraordinaire Joe Escalante’s Barely Legal Radio program, about Newegg.com’s recent battle with Best Buy over the Internet retailer’s latest television advertisements. In our post, we made reference to an interview our Rachel Valadez previously gave about the Mike Tyson/Hangover 2face tattoo
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