US Trademark Office cancels Marvel, DC's 'Super Hero' marks; Reuters, September 26, 2024

Blake Brittain , Reuters; US Trademark Office cancels Marvel, DC's 'Super Hero' marks

"A U.S. Trademark Office tribunal has canceled a set of "Super Hero" trademarks jointly owned by comic giants Marvel and DC at the request of a London-based comic book artist, according to a Thursday order.

The USPTO's Trademark Trial and Appeal Board ruled for S.J. Richold's Superbabies Ltd after Disney's Marvel and Warner Bros' DC did not file an answer to Superbabies' request to invalidate the marks.

Spokespeople and attorneys for Marvel and DC did not immediately respond to requests for comment. Superbabies attorney Adam Adler of Reichman Jorgensen Lehman & Feldberg said in a statement that the ruling was "not just a win for our client but a victory for creativity and innovation."

"By establishing SUPER HEROES' place in the public domain, we safeguard it as a symbol of heroism available to all storytellers," Adler said."

‘Trump Too Small’ Trademark Case Morphs Into Free Speech Debate; Bloomberg Law, June 18, 2024

 Laura Heymann , Bloomberg Law; ‘Trump Too Small’ Trademark Case Morphs Into Free Speech Debate

"The US Supreme Court’s June 13 decision in the “Trump Too Small” trademark case revealed a potential rift among the justices on First Amendment jurisprudence but did little to advance intellectual property law...

Trademark law, the Supreme Court has said in prior cases, is primarily about two goals: preventing confusion among consumers by ensuring accurate source identification and preserving trademark owners’ reputation and goodwill. For these justices, the names clause passed muster because prohibiting the registration of personal names without consent was self-evidently reasonable in light of these purposes; no further analysis was required."

Artificial Intelligence Law - Intellectual Property Protection for your voice?; JDSupra, January 22, 2024

 Steve Vondran, JDSupra ; Artificial Intelligence Law - Intellectual Property Protection for your voice?

"With the advent of AI technology capable of replicating a person's voice and utilizing it for commercial purposes, several key legal issues are likely to emerge under California's right of publicity law. The right of publicity refers to an individual's right to control and profit from their own name, image, likeness, or voice.

Determining the extent of a person's control over their own voice will likely become a contentious legal matter given the rise of AI technology. In 2024, with a mere prompt and a push of a button, a creator can generate highly accurate voice replicas, potentially allowing companies to utilize a person's voice without their explicit permission for example using a AI generated song in a video, or podcast, or using it as a voice-over for a commercial project. This sounds like fun new technology, until you realize that in states like California where a "right of publicity law" exists a persons VOICE can be a protectable asset that one can sue to protect others who wrongfully misuse their voice for commercial advertising purposes.

This blog will discuss a few new legal issues I see arising in our wonderful new digital age being fueled by the massive onset of Generative AI technology (which really just means you input prompts into an AI tool and it will generate art, text, images, music, etc."

‘Who Owns This Sentence?’ Increasingly, Who Knows?; The New York Times, January 24, 2024

 Alexandra Jacobs, The New York Times ; ‘Who Owns This Sentence?’ Increasingly, Who Knows?

"David Bellos and Alexandre Montagu’s surprisingly sprightly history “Who Owns This Sentence?” arrives with uncanny timing...

They sort out the difference between plagiarism, a matter of honor debated since ancient times (and a theme, tellingly, of many recent novels); copyright, a concern of modern law and, crucially, lucre (“the biggest money machine the world has ever seen”); and trademark. If I wanted a picture of Smokey Bear to run with this article, for instance — and I very much do — The New York Times would have to fork up."...

They themselves have a wry way with technical material; this is less Copyright for Dummies, like that endlessly extended, imitatedand spoofed series, than for wits. Discouraged by their publisher from naming a chapter title after the Beatles’ “All You Need Is Love,” the authors deftly illustrate this “absurd” circumstance by only describing in close identifiable detail the band and the song."

Mickey Mouse, Long a Symbol in Copyright Wars, to Enter Public Domain: ‘It’s Finally Happening’; Variety, December 22, 2023

Gene Maddaus, Variety; Mickey Mouse, Long a Symbol in Copyright Wars, to Enter Public Domain: ‘It’s Finally Happening’

"Every Jan. 1, Jenkins celebrates Public Domain Day, publishing a long list of works that are now free for artists to remix and reimagine. This year’s list includes Tigger, who, like Mickey Mouse, made his first appearance in 1928. Other 1928 works include “Lady Chatterley’s Lover,” “All Quiet on the Western Front” and Buster Keaton’s “The Cameraman.” 

The celebrations are relatively recent. After Congress extended copyright terms in 1998, 20 years went by when nothing entered the public domain. Works began to lose copyright protection again in 2019, and since then, it’s been open season on “The Great Gatsby,” “Rhapsody in Blue” and Winnie the Pooh...

Lessig fought the extension all the way to the Supreme Court. He argued that Congress might keep granting extensions, thwarting the constitutional mandate that copyrights be “for limited times.” He lost, 7-2, but the debate helped advance the movement for Creative Commons and an appreciation for the benefits of “remix culture.”

“That movement awoke people to the essential need for balance in this,” Lessig said. “At the beginning of this fight, it was a simple battle between the pirates and the property owners. And by the end of that period, people recognized that there’s a much wider range of interests that were involved here, like education and access to knowledge.”...

He continues to support reforms that would free up a vast body of cultural output that remains inaccessible because it lacks commercial value and its ownership cannot be determined."

Justices Will Probe Trademarks’ Nature in ‘Trump Too Small’ Case; Bloomberg Law, October 30, 2023

Kyle Jahner, Bloomberg Law; Justices Will Probe Trademarks’ Nature in ‘Trump Too Small’ Case

"The fight over ‘Trump Too Small’ is the latest in a series of cases the court has faced in recent years raising First Amendment questions over trademark registrations. Although the justices skipped deciding the broader constitutional questions when they struck down different statutory registration bans in 2017 and 2019, this time the nature of the government’s argument may force the justices to now draw a line in the sand, he said."

'The ghosts are not happy': 2 Fall River businesses clash over use of Lizzie Borden name; The Herald News, August 21, 2023

 Audrey Cooney, The Herald News; 'The ghosts are not happy': 2 Fall River businesses clash over use of Lizzie Borden name

"Zaal’s company US Ghost Adventures, which operates ghost tours in dozens of cities across the U.S., bought the house in 2021.

Miss Lizzie’s Coffee opened two weeks ago, on the anniversary of the Borden murders. The Lizzie-themed coffee shop features bloody axes in the decor and other nods to the slayings, like a "Lizspresso" menu item. Owner Joe Pereira bills it as "the most haunted coffee shop in the world."

Now, Zaal says the coffee shop violates his intellectual property."

Mattel once sued over the ‘Barbie Girl’ song — before learning to love it; The Washington Post, June 23, 2023

  Jennifer Hassan, The Washington Post; Mattel once sued over the ‘Barbie Girl’ song — before learning to love it

"“Mattel lost all those cases and got the message,” Tushnet said. “These were important precedents protecting commentary at a time when the internet was just allowing people to reach larger audiences without traditional gatekeepers. Then the ‘Barbie Girl’ case confirmed that traditional, commercial media also had the freedom to parody and comment on well-known trademarks.”"

May ‘Bad Spaniels’ Mock Jack Daniel’s? The Supreme Court Will Decide.; The New York Times, December 5, 2022

 Adam Liptak, The New York Times; May ‘Bad Spaniels’ Mock Jack Daniel’s? The Supreme Court Will Decide.

"The justices agreed last month to decide the fate of the Bad Spaniels Silly Squeaker dog toy, which looks a lot like a bottle of Jack Daniel’s but with, as an appeals court judge put it, “lighthearted, dog-related alterations.”

The jokes are scatological. The words “Old No. 7 Brand Tennessee Sour Mash Whiskey” on the bottle are replaced on the toy by “the Old No. 2, on your Tennessee carpet.” Where Jack Daniel’s says its product is 40 percent alcohol by volume, Bad Spaniels’s is said to be “43 percent poo.”

A tag attached to the toy says it is “not affiliated with Jack Daniel Distillery.”

Trademark cases generally turn on whether the public is likely to be confused about a product’s source. In the Bad Spaniels case, a unanimous three-judge panel of the Court of Appeals for the Ninth Circuit, in San Francisco, said the First Amendment requires a more demanding test when the challenged product is expressing an idea or point of view."

Republicans took away Disney’s special status in Florida. Now they’re gunning for Mickey himself; Los Angeles Times, May 11, 2022

 HUGO MARTÍN, Los Angeles Times; Republicans took away Disney’s special status in Florida. Now they’re gunning for Mickey himself

"No legislation has been proposed to extend the copyright a third time, and copyright experts and lawmakers say it’s not likely that any legislators will want to lead that battle, given the opposition and fury it generated in the 1990s. Other companies’ copyrighted characters would also expire, sending more notable characters into the public domain. 

Disney critics say the company continues to have influence over copyright law, pointing to the recent naming of Suzanne Wilson as the general counsel and associate register of copyrights for the United States Copyright Office. She formerly oversaw intellectual property and interactive and media legal functions for Walt Disney Co.

Legal experts say the debate over copyright protection is moot because the only version of Mickey Mouse that is expiring is the 1928 black-and-white one depicted in “Steamboat Willie.” Copyright protections remain in place for later versions of Mickey Mouse, the more commercially recognized one that wears white gloves, has bigger ears, distinctive eyes and a pet dog named Pluto, according to experts.

Crucially, Disney also still holds trademark protection on Mickey Mouse, which does not expire. While a copyright keeps other companies from replicating the Mickey Mouse image, a trademark ensures that other companies can’t use the Mickey Mouse image in a way that might suggest their products are made by Disney."

The Copyright Lawsuit in Tiger King Is an Outrage; Slate, May 7, 2020

Joshua Lamel, Slate; The Copyright Lawsuit in Tiger King Is an Outrage

"Copyright is the perfect vehicle for SLAPP suits. First of all, copyright is a government-granted, exclusive right to speech. There is no better way to prevent someone from publicly criticizing you than to use copyright law. Copyright lawsuits are expensive and place enormous costs on defendants. Fair use has to be raised once you are sued, so defendants will likely have to spend more. The potential damages are extreme: For every violation of a copyright, you can get $150,000 in statutory damages. Additionally, copyright law has injunctive relief—you can actually stop the speech from happening.

One would think that Congress would recognize this and specifically include copyright in federal anti-SLAPP efforts. But that is not happening anytime soon. Instead, thanks to their lobbying and fundraising, copyright holders have been successful in convincing senior members of Congress in both parties to exclude copyright. These members have told federal anti-SLAPP advocates that they need to be willing to give up copyright for a chance of being successful. There is not a single good policy argument to exclude copyright. Copyright litigation abuse is exactly what anti-SLAPP legislation should be designed to prevent. This type of abuse is the reason we need a federal fix.

In my dream world, the saturation of Joe Exotic’s story will help everyday Americans understand the relevance of copyright law in our daily lives—maybe even spur federal lawmakers to introduce and pass anti-SLAPP law without a special carve-out for copyright."

After a long legal struggle, Seattle band Thunderpussy is granted a U.S. trademark; The Seattle Times, April 5, 2020

Brendan Kiley, The Seattle Times; After a long legal struggle, Seattle band Thunderpussy is granted a U.S. trademark

"“There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all,” Justice Elena Kagan wrote in the court’s opinion. “It therefore violates the First Amendment.” She also noted a lack of consistency in how the USPTO interpreted the Lanham Act, approving some trademarks and rejecting others that used the same potentially offensive language.

Kerr, Thunderpussy’s attorney, had argued the same point in his appeal to the USPTO.

“I mentioned over 40 trademark applications that had been accepted that included the word ‘pussy,’ ” he said. “Human discretion enters into the process, which is one person forming an opinion based on an internet search — but the implications for the band are enormous.”

The wheels of bureaucracy turned and, on April 4, Kerr finally received a letter from the USPTO granting Thunderpussy registered trademark number 6,021,338."

We Are! ... Happy Valley? Penn State applies for trademark on moniker; The Pittsburgh Post-Gazette, January 2, 2019

Bill Schackner, The Pittsburgh Post-Gazette; We Are! ... Happy Valley? Penn State applies for trademark on moniker

"Josh Gerben, a trademark attorney in Washington, D.C., tweeted about the Penn State application Dec. 28, calling it a “trademark ‘land grab.’”

He said Happy Valley should remain in the public domain, since the university did not create the expression and the words are used broadly in Pennsylvania and elsewhere. He said others should be able to profit from it.

“It’s a generally accepted term for a geographic area in which the university happens to reside,” he said. “It seems out of place for the university to come in and say they should be the exclusive provider of Happy Valley clothing throughout the country. That’s exactly what they are asking to do.”"

Honey Badger may not care, but the ‘creative genius’ who took him viral just won a big victory; The Washington Post, August 1, 2018

Antonia Farzan, The Washington Post; Honey Badger may not care, but the ‘creative genius’ who took him viral just won a big victory

"In June 2015, Gordon filed a lawsuit alleging trademark infringement. The U.S. District Court for the Central District of California granted summary judgment to the greeting card company, saying that the cards were expressive works protected by the First Amendment. Gordon appealed.

On Monday, the appeals court reversed the lower court’s decision, allowing his lawsuit to continue.

In an opinion published Monday, the three-judge panel said that Gordon’s lawsuit against Drape Creative, Inc. and Papyrus-Recycled Greetings, Inc. presents a question that should be tried before a jury: Did the greeting cards add any artistic value that would be protected by the First Amendment, or did they simply appropriate the goodwill associated with Gordon’s trademark?"

33rd Annual ABA Intellectual Property Law Conference, April 18-20, 2018

33rd Annual ABA Intellectual Property Law Conference, Arlington, Virginia

[Kip Currier: The April 19th Conference sessions I attended were outstanding. Particularly thought-provoking was the "Ethical Issues in Emerging Technology" session, with panelists discussing legal, ethical, and policy implications of Wearable Technologies (e.g. FitBits), 3D Printers, and Autonomous Vehicles.

I'll be posting some highlights and photos from the sessions in the next few days.]

Friday, April 20

6:30 am – 7:45 am	LGBT Diversity Run/Walk
7:30 am – 5:00 pm	Registration • Print Café • Sponsors
8:30 am – 10:00 am	Patent: Standards Essential Patent & the Internet of Things
8:30 am – 10:00 am	Trademark/Ethics: Ethical Issues in Trademark Practice
8:30 am – 10:00 am	Copyright: International Copyright Transactions
10:15 am – 11:45 am	Patent: State of Subject Matter Eligibility Law: Its Impact on the Incentive to Innovate
10:15 am – 11:45 am	Trademark: The Dark Side of Knockoffs
10:15 am – 11:45 am	Copyright: Fair Use or Not Fair Use, that is the Question
12:00 pm – 1:30 pm	Women in IP Law Luncheon
1:45 pm – 3:15 pm	Specialty: Canada: More than Just Justin Trudeau
1:45 pm – 3:15 pm	Trademark: Current State of the Dilution Doctrine - TamImpact
1:45 pm – 3:15 pm	Copyright: Music Licensing 101: Understanding the Basics
3:30 pm – 5:00 pm	Patent/Ethics: Current Trends and Ethical Implications in IP Monetization and Litigation Financing
3:30 pm – 5:00 pm	Specialty: DarkNet: Enter at Your Own Risk
3:30 pm – 5:00 pm	Specialty: Preserving Attorney Client Privilege When Your Clients Go Global

33rd Annual ABA Intellectual Property Law Conference, April 18-20, 2018

33rd Annual ABA Intellectual Property Law Conference, Arlington, Virginia

[Kip Currier: 1st full day of this year's American Bar Association Intellectual Property Law Conference. Lots of intriguing sessions to choose from...case in point, the 10:15 AM slot has two concurrent ones I want to attend--Trademark/Ethics: Ethical Issues in Emerging Technology and Copyright: Copyright Law and Policy Developments.

I'm also attending the Mark T. Banner luncheon today, featuring Simon Tam of the band The Slants and his legal team, who last year won a major federal trademark law case, Matal v. Tam (previously Lee v. Tam), involving so-called disparaging trademarks. The case presented potentially significant implications for free speech and economic interests. Tam and his band spoke as part of a very thought-provoking panel at Duquesne University last April, before the U.S. Supreme Court had announced its decision in June 2017. The Slants prevailed, in a unanimous decision.

I talked with Tam after the April 2017 panel about the case and he insisted on having his bandmates sign the band's poster I'd purchased.

It will be interesting to hear thoughts from the various parties a year later, regarding post-Matal v. Tam implications...]


Thursday, April 19

7:00 am – 5:00 pm	Registration • Print Café • Sponsors
7:15 am – 8:30 am	Conference Connections New Members • First-Time Attendees • Young Lawyers
8:30 am – 10:00 am	Patent: Impact of Heartland on District Court Litigation
8:30 am – 10:00 am	Trademark: From the Practitioners' Perspectives: Managing Discovery in Trademark Cases: TTAB vs. Federal Court
8:30 am – 10:00 am	Copyright/Social Media: #Ad Disclosures
10:15 am – 11:45 am	Patent: Ask the Office: Hot Topics with the USPTO Commissioner for Patents
10:15 am – 11:45 am	Trademark/Ethics: Ethical Issues in Emerging Technology
10:15 am – 11:45 am	Copyright: Copyright Law and Policy Developments
12:00 pm – 1:30 pm	Mark T. Banner Award Luncheon Honoring Simon Tam and his legal team during a special presentation.
1:45 pm – 3:15 pm	Patent: Coming Together: Worlds Apart
1:45 pm – 3:15 pm	Trademark: Proving a Negative: Best Practices for Prosecuting and Defending Non-Use Abandonment Proceedings in the US & Abroad
1:45 pm – 3:15 pm	Copyright: The Right of Publicity
3:30 pm – 5:00 pm	Specialty: Growing Your Start-Up IP Practice
3:30 pm – 5:00 pm	Trademark/Copyright: Fictional Characters in 3D
3:30 pm – 5:00 pm	Specialty/Ethics: Multijurisdictional Practice and the Modern Ethical IP Attorney

‘We can change the meaning’: Trademarks filed for n-word after Supreme Court decision; Washington Post, August 1, 2017

Justin Wm. Moyer, Washington Post; ‘We can change the meaning’: Trademarks filed for n-word after Supreme Court decision

"Gene Quinn, founder of the intellectual property blog IP Watchdog, said trademarking epithets to limit their use was a “laudable purpose,” but difficult to achieve.

To be maintained, trademarks must be used in interstate commerce, he said, and are awarded in different classes, such as clothing, food or video games. Anyone trying to erase these words from the marketplace would simultaneously need to put them into the marketplace."

After Supreme Court Decision, People Race To Trademark Racially Offensive Words; NPR, July 21, 2017

Ailsa Chang, NPR; After Supreme Court Decision, People Race To Trademark Racially Offensive Words

"CHANG: I wondered about the intent, too, so I set off to find this other guy. And he turned out to be a patent lawyer in Alexandria, Va., Steve Maynard.

Why swastikas?

STEVE MAYNARD: Because the term has an incendiary meaning behind it.

CHANG: Yeah.

MAYNARD: And it's currently used as a symbol of hate. And if we can own the brand, we will be able to control the sale of the brand and the use of the brand as well.

CHANG: Oh, so you're trying to basically grab the swastika so real, actual racists and haters can't grab the swastika as a...

MAYNARD: Correct.

CHANG: ...Registered trademark.

MAYNARD: Correct.

CHANG: But there's a catch. Maynard can't just get the trademark, put it in a drawer and make sure nobody else uses it. To keep a trademark, he actually needs to sell a swastika product. So he will - blankets, shirts, flags. But he plans to make these products so expensive he's hoping no one will ever buy them."

The Slants Win Supreme Court Battle Over Band's Name In Trademark Dispute; NPR, June 19, 2017

Bill Chappell, NPR; The Slants Win Supreme Court Battle Over Band's Name In Trademark Dispute

[Kip Currier: A big 8-0 U.S. Supreme Court decision for Asian American rock band The Slants today. I met The Slants at an April 27, 2017 event, hosted by Duquesne University's School of Law and Mary Pappert School of Music, discussing conflicting aspects of U.S. trademark law (specifically, the Lanham Act's provision addressing "disparaging trademarks") and the 1st Amendment and freedom of expression. Some photos I took at that event:]

"Members of the Asian-American rock band The Slants have the right to call themselves by a disparaging name, the Supreme Court says, in a ruling that could have broad impact on how the First Amendment is applied in other trademark cases."

Trump Adds More Trademarks in China; New York Times, June 13, 2017

Sui-Lee wee, New York Times; Trump Adds More Trademarks in China

点击查看本文中文版

"President Trump is poised to add six new trademarks to his expanding portfolio in China, in sectors including veterinary services and construction, potentially renewing concerns about his possible conflicts of interest.

The latest trademarks expand Mr. Trump’s business interests in China, the world’s second-largest economy and a country he frequently blamed during the election campaign for the decline in American industrial jobs. Since taking office, he has softened that rhetoric.

He has nevertheless continued to receive approval in China for new trademarks. The country’s trademark office gave the president preliminary approval for six trademarks on June 6, according to the agency’s website.

Under Chinese law, a trademark with preliminary approval is formally registered after three months if the agency receives no objections."