Anyone who knows me at all knows that I suffer from a terrible affliction called “early adopter syndrome.” I had a cell phone when it really was more of a brick with a speaker and the first smartphone, I can tell you, was not terribly smart at all. There was a lot of staring at the screen waiting for it to bring up a website or a low res photo… As a result of my affliction, there is a veritable cemetery of old devices at my house, all acquired soon after launch.
So now I’ve been hit again – this time with Apple’s… iWatch, er… the Apple Watch. What is that thing called? Officially it’s the “Apple Watch.” A simple name. All business, elegant design, understated but direct. The name fits the device. Just a watch – but it’s not just a watch right? It’s the Apple watch. It’s about as much of a watch as a Tesla vehicle is just a car. Why is a company that has invested so much in the “i” prefix to connote that its devices are “new,” “more,” and “unique” suddenly reverted to referring to its super integrated wrist candy as a mere … Keep reading
Trademark owners are in the midst of another ‘think’ about the best way to protect and preserve their reputations online. Specifically, beginning on March 30, 2015 the Sunrise Period opened for brand owners to fork over $2499 for domain names that end in .sucks. This $2499 payment is necessary annually to keep yourbrand.sucks from the clutches of an unhappy customer who might use it to make a career out of publishing any material they wish (fair, unfair or otherwise) about your company, or if you are celebrity – about your performance or personal life. To add insult to this expensive injury, after the end of the Sunrise Period, pretty much anyone (other than the brand owner) can pick up the same domains for $9.99 making the barrier to entry for complainants rather low.
As reported by The World Trademark Review and others, the CEO of .sucks registrar Vox Populi, John Berard, claims that intent of the apparently inapt pricing scheme is to encourage brand owners to engage with consumers. By making the price high, there will be less warehousing of domains and some brand domains will find their way into the hands of people who will … Keep reading
I can’t define disparagement, but I know it when I see it…
On Wednesday, June 18, 2014 the Trademark Trial and Appeal Board, the judicial body that provides review to all Federal trademark filings and disputes relating to such filings, released its second decision to CANCEL the trademark registrations owned by Pro-Football, Inc. and used by the National Football League’s Washington Redskins football team. The decision is interesting for many reasons, legal, political, and socio-cultural. But to me the most bloggable angle is how the media has exploded about the decision in the last couple of days, often misreporting the facts (and the law) and suggesting odd conclusions that purportedly flow from the decision.
CNN proclaimed: “If you want to start selling T-shirts with the Washington Redskins’ logo without permission, you may be in luck.” This unsubstantiated assertion was repeated in other media outlets including Ad Age, which suggested that losing the registrations meant everyone could sell branded items without “fear of reprisal.”
First. False. If the decision of the Office stands, the Redskins team, and Pro-Football will still be able to sell their wares and stop others from doing so. Thousands of unregistered trademark … Keep reading
The Noise About Privacy: Is Big Brother Watching, Or Is He Just the Most Compulsive Hoarder of ‘Random’ on the Planet?
On May 19, CNNMoney’s Jose Pagliery published a provocative piece: “What you really accept to when you click ‘accept’“–an exposé on the privacy policies of 18 of the most popular websites and mobile apps. The article shines the klieg lights on one of the dirty little secrets of consumer internet usage– that online privacy policies are ephemeral, dense, rarely read, one-sided and, sometimes, over-reaching. Pagliery infers from these conditions that most companies care little for a user’s privacy and want nothing more than to collect the maximum information and use it in any way that increases the bottom line.
At the risk of sounding defensive, I’d say that conclusion is largely unsupported and pretty far from accurate for most web-based companies. In fact, the density and vagueness of privacy policies often is caused by a variety of competing pressures faced by online companies. Varied international laws and regulatory schemes applicable in different jurisdictions to different kinds of data create part of the problem. There is no single or baseline set of standards for … Keep reading
You Can Trademark That? They Can Own What? Who Knew?
There are many reasons we have IP laws – but primary among them is to encourage creative types like artists and inventors to profit from their efforts by way of royalties or exclusive rights. To encourage those efforts, the intellectual property laws give authors and creators a relative monopoly over something they’ve created – a trademark, an invention, a script, a computer program, etc. It’s like society is saying “you made it, so you can own it – at least for a while…”
But a natural tension immediately presents itself when we grant these exclusive rights. Our culture wants to embrace, use and assimilate all that is cutting edge and new without having to ask for permission. We take – no, we borrow Pharrell Williams’ “Happy” riffs and make them background music to our YouTube® videos of our cats and our dogs. We expropriate “just a” screen capture from the Godzilla movie and create e-cards or embed them on our Facebook® pages. Our post-90s, crowd sourced, media-centered sensibility has created this “if it’s out there it must be free” (or “it wants to be free”) ethos … Keep reading
As the political season in the U.S. heats up and the campaigns continue to hone their messages, the branding of the campaigns and the candidates becomes more visible to a larger portion of the U.S. electorate.
Political campaigns are entertaining and instructive fodder for thinking about the power of branding since, after all, they are the genesis for all things “swag.” Political messaging has provided us with a litter of campaign pins, bumper stickers, mugs and key chains and other give-aways meant to help spread the essential messages of the candidates. These branded collectibles are the archaeological evidence of each campaign’s attempt to sway voters with some essential pith or short message conveyed in words and images.
Each of the buttons to the left had an explicit message, coupled with an express or subliminal message. McGovern was for women, Ike and Dick had a personal commitment to you, Hillary Clinton was Rosie the Riveter, working for change…
What of this year’s imagery? The Romney campaign has adopted a simplified branding consisting of a red, white and blue triple “R” design (Romney, Ryan, Republican?) which is variously used as part of Romney’s name, and as a stand alone logo at … Keep reading
I can hardly think of Christain Louboutin’s (“Louboutin”) “red soled shoe” case without hearing Elvis Costello’s Red Shoes in my head.
…Oh I used to be disgusted
and now I try to be amused.
But since their wings have got rusted,
you know, the angels wanna wear my red shoes.
Red shoes, the angels wanna wear my red shoes…
For awhile, at least in the Second Circuit, we were wondering who could sell red shoes and/or whether angels might have to go barefoot for awhile… But now we seem to have some clarity on the issue.
To review, Louboutin has been fighting since 2011 to stop Yves St. Laurent (“YSL”) from copying his trademark red-soled shoes. In what had been a somewhat surprising opinion, the Southern District of New York had denied Louboutin’s request for an injunction against YSL’s monochrome red shoes (that included a red sole) last August, on the grounds that color was per se functional as applied to fashion items. We’ve been waiting for months for Louboutin’s appeal to reach a decision, which finally came down on September 5, 2012 from the Second Circuit Court of Appeals.
My earlier ruminations on … Keep reading
One of the pleasures of practicing law, perhaps especially in the technology space –is in observing how technology trends and legal theories n Qualitex v. Jacobson, determined that single colors could be protected as trademarks—as long as the color, as applied to the relevant products, was not merely functional. Previously, some feared that granting trademark protection to single color (even if the color was non-functional) would be anti-competitive because colors were in short supply. Hence, no one should own one color exclusively. The Qualitex ruling seemed to provide closure on the issue by focusing the analysis on the functionality of the color shade rather than the potential for that color to be removed from the designer’s pallet.
But recently, as the trademark community knows, the Second Circuit Court of Appeals took up the appeal in Louboutin v. Yves Saint Laurent, a case that revisits the protectability of color, this time as used to identify a brand of shoes. The District Court opined that the use of red on a shoe sole (or on any fashion item) was “functional” by its very nature and that granting a monopoly to color on a fashion item was outside the bounds … Keep reading