Color Trademarks and Fashion: Branding That “Pops"

Color trademarks are those which use a color alone as the brand for a product, what trademark experts call a “source indicator.” Color marks are considered non-traditional trademarks, and they are generally disfavored by the U.S. Patent and Trademark Office.  Nonetheless, some color marks have achieved “distinctiveness,” that is, the degree of public recognition as a source indicator compels the USPTO to allow owners to register the color as a mark in their field of commerce.

For example, United Parcel Service holds a registration [Reg. No. 2901090] for “the color chocolate brown” [Pantone 462C] as applied to the entire surface of vehicles and uniforms” for the service of delivering personal property. Yellow is registered by the USPTO [Reg. No. 78706568] to the Lance Armstrong Foundation as a single color for wristbands for use in charitable fundraising.

Read the rest of my post here...

An Expanded Scope for the Copyright Misuse Defense?

We are often reminded that the basis for U.S. copyright law is the short provision of the Constitution giving Congress the “Power…To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” [Art. 1, Section 8] 

This constitutional source says that the “monopoly” granted must be temporary, and that the restraints (under copyright and patent law) should serve a particular purpose, the promotion of knowledge and art. Still, over the years, the duration of those “temporary restraints” (exclusive rights) has been increasing. 

It is also not apparent that the constitutional purpose is a consistently observed guiding principle. Some argue there is too fierce a trend currently toward expanding copyright and its enforcement. At the same time, increased copyright vigilance has been regarded by others as a necessity given the ready distribution and easy duplication afforded by digital technology.

Read the rest of my post here

---

[1] Other invocations of the copyright misuse defense served a similar purpose. In Alcatel U.S.A., Inc. v. DGI Technologies, Inc., 166 F.3d 772 (1999), the Fifth Circuit allowed a copyright misuse defense when the holder of a copyright in software licensed its use only on the condition that the licensee use the software only on the copyright holder's hardware. In DSC Communications Corp. v. DGI Technologies, 81 F.3d 597 (1996), another Fifth Circuit case, a license prohibiting the development of a competing microprocessor card was found to be copyright misuse.

Expanding the Internet: What do ICANN’s New gTLD Applications Mean for Trademark Owners?

One year ago, as part of a plan to expand the capacity of the Internet’s domain name system, the Internet Corporation for Assigned Names and Numbers (ICANN) began accepting applications for more generic top-level domain names (gTLDs). Currently, the well-known gTLDs include .com, .org, and .net, as well as some of the country indicators that have been repurposed, such as .tv and .es. Adding gTLDs will allow for exponentially more domain names. During the new gTLD application period, ICANN opened the door to any combination of three or more letters in most major alphabets: .blue, .school, .mcdonalds, .law or .商城. The possibilities might seem almost endless, but, on “Reveal Day,” ICANN disclosed a list of 1,930 applications for new gTLDs.  

What does this mean for trademark owners and businesses? Some procedures have been set up; some are still vague and in development. At this stage trademark owners can review the list of proposed gTLDs to determine whether their brands, products or industry names are impacted, and then decide the next step to take with ICANN or otherwise. 

Please read the rest of my article here

President or Pirate? The DMCA Takedown War of the Presidential Campaigns

In what has been described by some as over-zealous enforcement of copyright, BMG (the large German publisher) forced YouTube to take down a Mitt Romney campaign video because it included footage of President Obama singing Al Green’s “Let’s Stay Together.”

The Romney video followed the Obama campaign’s release of a political ad featuring Mitt Romney’s off-key rendition of “America the Beautiful" as underscored to images of off-shore employment out-sourcing. Romney’s campaign used the Al Green song to attack Obama for his relationship with lobbyists and campaign fundraisers. YouTube pulled down the Romney ad after BMG, the music publisher that owns the copyright in the “Let’s Stay Together” composition, filed a copyright takedown notice under the Digital Millennium Copyright Act (DMCA). Not wanting to look like it was playing politics and only targeting the Romney ads, BMG also sent notices to YouTube to take down the original news footage clips of Obama singing the song.[1] The Obama campaign met no similar copyright opposition to its attack ad because the copyright to “America the Beautiful,” first released in 1910, has expired and that musical composition is now in the public domain.

Read the rest of my post here

Louboutin Loses: The Red-Soled Plot Continues

Footwear designer Christian Louboutin, has just suffered another set-back in the company’s ongoing effort to own the red sole, this time in Louboutin’s native France. In 2008, Louboutin filed a lawsuit in Paris against Spanish clothing manufacturer and retailer Zara, after Zara sold a red-soled shoe.  This May, the French Cour de Cassation (the French appeals court) irrevocably invalidated Louboutin’s trademark to the red sole in France. 

The decision appeared to rest on what some might consider a technicality, with the Cour de Cassation noting that Louboutin’s France trademark registration lacked a specific Pantone color reference, a standardized color reproduction code used universally in a variety of industries and in trademark registration[1]. Accordingly, the Cour de Cassation faulted the registration for its lack of precision and distinctiveness.

Read the rest of my post here...

CBS is Finally Off the Hook for the 8 year-old “Wardrobe Malfunction,” But Next Time will be Different

8 years later and it’s still hot news. This summer session, the Supreme Court, finally, officially, put the CBS Super Bowl “wardrobe malfunction” matter to rest. It let stand a 3^rd Circuit Court of Appeals ruling that, in 2008,  threw out the FCC’s $550,000 fine against CBS for its 2004 broadcast of a fleeting view of singer Janet Jackson’s breast.

That 2008 Appellate Ruling deemed the FCC’s fine for the network’s unplanned glimpse to be "arbitrary and capricious," an unexplained departure from what the Appellate Court described as a 30-year FCC policy of exempting “fleeting” moments of indecency from the scope of the indecency broadcast ban [18 U.S.C. § 1464, prohibits the broadcasting of “any obscene, indecent, or profane language”].

Read the rest of my post here

Linsanity: From the Basketball Courts to the Trademark Office

“Linsanity” began in February when Knicks benchwarmer Jeremy Lin unexpectedly took the basketball world by storm. Lin had received no athletic scholarship offers out of high school, wasn’t drafted out of college, and was assigned to the Warrior’s D-league three times in his first season with the NBA. 

A soaring basketball career was not generally expected from this 2010 Harvard University graduate, but, after suddenly leading the Knicks to five victories in a row, Lin was promoted to the Knicks’ starting lineup. Lin even impressed veteran Lakers player, Metta World Peace (born Ron Artest), who ran by reporters shouting “Linsanity! Linsanity!” after, with less than a second remaining, Lin scored a game-winning three-pointer against the Toronto Raptors. 

So, on the Monday after the last game of his five-game winning streak, Lin did what any good manager would advise a rising star with a catchy moniker to do: he had his lawyers file a trademark application to register LINSANITY with the United States Patent and Trademark Office (USPTO).

Read the rest of what I think about this at my site...