1. How the Power of Branding Drives Trademark Law (From the Thompson Compumark Podcasts Series by Thomson)
The podcast centers in how trademark law has had to adapt given to the new branding rules brought by the world of the Internet. Nowadays, protecting a company’s name and the image that represents that name has become global. No longer does trademark law center on the U.S, but also in worldwide markets. The following cases were addressed to prove this point:
b. Metel v. Barbies
“Barbies”, a restaurant in Canada decided to post their menu online in order to give leverage to their brand and attract new customers. However, Mattel, the creator of the doll line, “Barby”, became aware of the incident and asked the Canadian restaurant to please remove their website for it was infringing the “Barby” trademark. The Canadian restaurant did not comply, and Mattel went to court with the case alleging, “we were famous” and thus deserved to ask for other similar brands to be expunged. Yet, the supreme court of Canada responded to Mattel that there had to be a connection between the channels of trade before an opposition could be upheld. Thus, the court specified they still had to use the totality of the circumstances and not the mere statement Mattel “was famous.”
In my opinion, no matter how much leverage and popularity your brand acquires, procedures in court have to be made within the process established for that particular infringement. People cannot get “too cocky” as the lawyer in the podcast expressed. The law is the law, and although popularity is for the masses, a country is ruled by a code and not by self-centered individuals with elevated egos.
c. Jaguar v. Remo Imports
Jaguar, the motorcar trademark expanded to sell leather-made goods in the 1980’s. However, Remo imports filed a lawsuit that Jaguar was associating goods that competed with their trademark and thus was driving consumers into a market in which they did not belong. Jaguar backfired their claim by arguing it was a natural extension for a brand like Jaguar, which inspires luxury and wealth, to sell leather-made merchandise with the logo of the company on it. In addition to this argument, they added that Remo on the contrary was using their claim to diminish the value of their brand in order to sell products of their own which resembled Jaguar’s and which were fabricated way after. The result was the court ruling an expunge of the Remo products.
d. Levi’s v. Small Businesses
Small businesses filed lawsuits against Levi’s for using the word “overalls” as part of their trademark association. Levi’s argued back that although it was their purpose to expand as a brand, the word “overalls” could not be taken away from their trademark’s association to consumers given jeans (the primary product of Levi’s) were technically considered a type of overall. Yet, the court asked Levi’s in return of reversing the small businesses’ claims to include “male, female, and children overalls” in their advertisement if they desired such expansion of the brand legally to take place.
2. Monkeying around with copyright law (Episode 23 of the Entertainment Law Update Podcasts Series by Gordon P. Firemark)
The podcasts comment about different cases regarding copyright law and copyright infringements happening now.
b. Righthaven, a copyright troll (company that goes around acquiring rights in copyrighted materials so that instead of suing people, they can get money by settling the matter on their own without litigating), has been filing lawsuits against bloggers and online users who have been republishing work that official newspapers and magazines rightfully own. Yet, they have failed three strikes in a row based on the court not favoring Righthaven’s actions and the court’s interpretation that the true copyright holders of the pieces in question are the magazines and newspapers that originally produced them.
i. Righthaven v. Democratic Underground
ii. Righthaven v. Hoean
iii. Righthaven v. Dibiase
c. Jack Kirby v. Marvel
Jack Kirby appeals loss in Marvel copyright lawsuit based on his work made between 1958-1963 in the company stating that there was never an official contract that mentioned Kirby working for the company in order to deliver ideas that would be used later by Stan Lee in the final comics. Marvel restated this was a work for hire and that in any work for hire when one works for a company, one’s creations belong to that company. Yet, Kirby has shielded in the copyright act of 1909 (act ruling during that time), which does not specify what a “work for hire” entails (meaning it didn’t exist back in the time). He has mentioned he was only instructed to create pages of ideas through sketches, but was never told they would be the base of current Marvel characters, which catapulted the brand to success. This appeal is in proceedings since the time due to lack of evidence from behalf of Kirby.
d. Warner Brothers Entertainment, Inc v. X1X Productions
Although the Lyman Frank Baum characters by law should have entered to be public domain by now, Warner Brothers, with the creation of “The Wizard of Oz” in 1939, acquired a renowned trademark over specific looks of the characters. This has been a battle between being a trademark claim and a copyright claim. Warner Brothers wants to claim other people need to acquire license and rights from them in order to use the characters. Yet, other entities have been smart by not being detailed about the main characters and have stayed with secondary characters which weren’t very well depicted in the 1939 version such as in the case of the “Wicked” play producers.
3. YouTube, Hurt Locker, and Idea Theft (Episode 12 of the Entertainment Law Update Podcasts Series by Gordon P. Firemark)
The podcasts comment about different cases regarding copyright law and copyright infringements happening now.
a. Michael Douglas v. Diandra Douglas
The film Wall Street 2 reignited a battle between superstar Michael Douglas and his ex-wife Diandra Douglas given her divorce decree stated when would receive 50% of the income from any “spin-off” of a film made during the time of their marriage. However, the court brought a problem to the definition of the term “spin-off” which is not a legal term. According to the speakers of the podcast, what she should have drafted in the decree was “any derivatives.” Nonetheless, the case is currently pending a decision.
b. Viacom v. Google/Youtube
The district court of the southern district of New York ruled that Youtube/Google is not liable to the contributory copyright infringement Viacom was claiming. The court protected Youtube/Google based on the safe harbor provision section 5.12 of the DMCA where the service provider is not liable for infringement by reason of storing user generated material if the provider is not knowledgeable that the material is infringing. Viacom opposed arguing Youtube knew about its infringements and was only pretending not to know in order to fill their website with content.
c. The U.S. Copyright Group v. 5,000 illegal downloads
The creators/producers of the award-winning film “The Hurt Locker” incorporated a copyright protection firm, which accuses 5,000 Internet users of downloading illegal digital copies of the film via bi-torrent software. Comcast when alleged said they would work on the matter when the time comes on a per-case basis, and the court is currently questioning if filing against/persecuting 5,000 people is a legitimate way of copyright protection. Copyright can only protect when there is a specific defendant and when there is a series of transactions (in terms of illegal downloads) harming the filing company. However, with bi-torrent in extremely hard to calculate given elements which trigger a lawsuit.
References:
How the Power of Branding Drives Trademark Law
http://itunes.apple.com/us/podcast/how-power-branding-drives/id264628681?i=23010931
Monkeying Around With Copyright Law Podcast
http://itunes.apple.com/us/podcast/id313301718?i=96594890
Use the Force, Big Boy, and Watch Out for Beyonce’s Undies
http://itunes.apple.com/us/podcast/entertainment-law-update-podcast/id313301718?i=93105276
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