US Supreme Court takes up case dealing with the use of public figures’ names and likenesses in trademarks; Jurist.org, June 5, 2023

 Rebekah Yeager-Malkin | U. Pittsburgh School of Law, US, Jurist.org; US Supreme Court takes up case dealing with the use of public figures’ names and likenesses in trademarks

"The US Supreme Court announced Monday it will take up the trademark case Vidal v. Elster, to determine whether the application of Section 2(c) of the Lanham Act to political figures violates the First Amendment. 

The case surrounds the trademark application by Steve Elster for the phrase “Trump Too Small,” which Elster attempted to trademark for use on t-shirts. Elster’s application was denied by the US Patents and Trademarks Office and the denial was upheld by the Trademark Trial and Appeal Board for violating Section 2(c) of the Lanham Act, which bars a trademark that “Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent…”"

Lizzo Granted Trademark for '100% THAT Bitch' in Reversal After Application Was Rejected; People, February 2, 2023

Glenn Garner

, People; Lizzo Granted Trademark for '100% THAT Bitch' in Reversal After Application Was Rejected

"The USPTO's Trademark Trial and Appeal Board (TTAB) reversed its decision after rejecting Lizzo's application last year.

An examining attorney previously argued that the phrase is "a message of self-confidence and female empowerment," which fans "may associate" with Lizzo, but "does not entitle the applicant as a singer-songwriter to appropriate for itself exclusive use of the phrase.""

Peter Parker Losing his Trademark in Amazing Spider-Man #75 (Spoilers); Bleeding Cool, October 6, 2021

Rich Johnston, Bleeding Cool ; Peter Parker Losing his Trademark in Amazing Spider-Man #75 (Spoilers)

"And the Beyond Corporation has the trademark to Spider-Man. Could Peter Parker be in breach of himself right now?"

Harper Lee’s Estate Sues Over Broadway Version of ‘Mockingbird’; New York Times, March 14, 2018

Alexandra Alter and Michael Paulson, New York Times; Harper Lee’s Estate Sues Over Broadway Version of ‘Mockingbird’

"The move to assert more control over the play is perhaps a sign of how Ms. Carter views her role as a guardian of Ms. Lee’s legacy. In her final years, Ms. Lee went to court to protect her intellectual property, and sued a museum in her hometown, Monroeville, in 2013, arguing that it had infringed on Ms. Lee’s trademark by selling “Mockingbird” themed T-shirts and trinkets (the suit was settled in 2014).

Mr. Rudin alluded to that lawsuit in a statement that said the “estate has an unfortunate history of litigious behavior and of both filing and being the recipient of numerous lawsuits, and has been the subject of considerable controversy based on the perceptions surrounding its handling of the work of Harper Lee both before and after her death.”"

Super Bowl Legal Blitz: Inside The NFL's Legendary Trademark Defense; Forbes, January 30, 2018

Michelle Fabio, Forbes; Super Bowl Legal Blitz: Inside The NFL's Legendary Trademark Defense

"A trademark is a "word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services." Generally, courts use a "likelihood of confusion" test to determine whether trademark infringement has occurred, i.e., whether a consumer is likely to be confused as to the source of the goods or services by the allegedly infringing usage.

Legally speaking, defending a mark is an important aspect of being a trademark owner. Besides the potential weakening and loss of distinctiveness ("dilution" in trademark speak), the failure to enforce a trademark could even lead to the forfeiture of some of the available remedies for infringement.

For this reason, multimillion-dollar companies hire professional watch services to monitor trademark use and possible infringement. And with the NFL, nothing seems to escape its notice—or legal wrath—which goes far beyond just counterfeiters.

In 2007, the NFL sent a warning letter to an Indianapolis church that had advertised a “Super Bowl” party and planned to charge admission for a viewing on a screen larger than 55-inches. The league has since loosened its policies regarding gatherings—the word “Super Bowl” and team names can be used—but still no admission fees are allowed. For churches, the event must be held in the usual place of worship as opposed to a rented space.

Notably, the logos of the NFL, the Super Bowl and the participating teams may not be used, which has led to rather hilarious if legally sound results. Take, for example, this promotional image by a Bethlehem, Pennsylvania arts campus, which features clip art, "Birds" and "Big Game," instead of official NFL logos, "Philadelphia Eagles" and "Super Bowl"..."

Entrepreneurialism and IP at Steel City Con; Kip Currier, August 13, 2017

Kip Currier
Entrepreneurialism and IP at Steel City Con 

Steel City Con (a Burgh-based pop culture convention in the vein of San Diego's famed Comic Con) has been running all weekend at the Monroeville Convention Center (13 miles from downtown Pittsburgh) and is finishing up today. I attended Saturday, August 12th (--the biggest "autograph" lines I saw were for Burt Reynolds! And it was cool to get up-close looks at three of the Brady Bunch kids, "Greg", "Bobby", and "Cindy"..."the youngest one in curls".--) and chatted with a number of very creative Western Pennsylvania entrepreneurs, showcasing and selling their self-made wares. In a variety of ways, they're using and working with (some would say infringing upon) Intellectual Property, and, in some cases, transforming Intellectual Property into new works.

Decals are a big seller at Conventions, like this X-Men decal:

Some examples of works that I observed being sold at the Con veer closer to (and step over?) the edge of infringement than others that can make stronger arguments for "transformativeness". Cristine Cordero's Heroes and Heels is a good example of the latter. Cristine told me that she uses actual comic book-clipped images to bring one-of-a-kind "custom created comic book shoes" to life...and her customers' feet.

Some have even been worn at superhero-themed weddings. ("I now pronounce you husband and..Deadpool?")

I asked each vendor with whom I spoke if they had had any requests to "cease and desist", or worse, from the companies that own the IP rights to, say, Star Wars, Harry Potter, the Suicide Squad, and the Avengers. Everyone shook their heads or said that they hadn't experienced anything like that. A few told me that any IP rights enforcement-type issues that they'd seen at conventions were relegated to films and videos, more associated with digital piracy. One seller told me he hadn't ever seen anyone roaming around the Cons enforcing IP rights. (As an IP instructor, I contrasted that with copyright enforcement examples I'm well aware of, involving licensing "sheriffs" on the lookout for copyright scofflaw musicians and cover bands. See here and here.)

I saw some really ingenious mashups of popular TV shows and characters. This T-Shirt combines the high mortality rate trope of the Red-Shirted security officers in the orginal Star Trek series (--if Star Trek were a chess game, the Red Shirts would be your pawns), with the series name of a popular zombie apocalypse TV show you may have heard of:

"Where do you come up with these ideas", I asked their maker?
"In the middle of the night they come to me. About 4 am", she chuckled.

Another seller with GoodsandEvil.com told me that Pittsburgh-born Greg Nicotero, the special effects guru extraordinaire on The Walking Dead, had just bought up a bunch of his clever zombie-themed shirts to take back to the crew. "Pretty cool to think that these shirts may be worn by people on the set", he understandably beamed. I told him I really liked the t-shirt below, a creative homage to the Western Pennsylvania-referenced places in 1968's (copyright-free!) Night of the Living Dead film and its cinematic zombie progeny, made by Pittsburgh's own George Romero, recently deceased. I snapped up one for myself, and one for my nephew, who's a big fan of The Walking Dead--before Greg Nicotero could circle back and clean them out (for We Are Negan? Rick's Gang? Shiva???).

My brother (the above-mentioned nephew's father) has been a big fan of Jack Nicholson's iconic "Here's Johnny" scene in Stephen King's The Shining, featured on another local entrepreneur's horror-themed ceramics. Perfect for that next office cocktail party (wasabi peas, anyone?):

Bringing it back to myself...I've always loved the scene in The Fellowship of the Ring where Ian McKellen-cum-Gandalf the Wizard stares down a fiery Balrog. With just his staff and a full-throated "You Shall "Not Pass". Now I can own Gandalf's "red line" on a yellow metal sign...and daydream about where I'd like to place it.

And for any of you Games of Thrones fans out there (or, if you're not a GOT devotee but are looking for a truly unique stocking stuffer for later this year)...how about custom-made Chain Mail for your canine BFF? Not that even Valyrian chain mail would do much good, should you be unlucky enough to find a Drogon-driving, "Dracarys"-dripping Daenerys Targaryen bearing down on you on some windswept plain. 

(House Lannister, House Stark, or House Targaryen?)

Cosplayers were, unsurprisingly, in abundance at Steel City Con too. Leias, Obi-Wans, Jokers, Harley Quinns...R2D2

And, yes, where you have cosplayers, you're gonna have that occasional dreaded cosplayer wardrobe malfunction. (Holy Suspenders, Batman...your utility belt's busted!)

Cue drumroll and Enter the enterprising folks from Any-Kind-A-Wear, who offered a Cosplay Repair Service:

A bit of duct tape...a well-placed safety pin and a dab-dab from a hot glue gun...maybe a spit and polish...and you're lookin' great and ready to save the world again.

...Or just hang out with your SuperFriends at your friendly neighborhood Con.

Dunkin’ Donuts wants to leave a doughnut-sized hole in its name; Washington Post, August 4, 2017

Andrew deGrandpre, Washington Post; Dunkin’ Donuts wants to leave a doughnut-sized hole in its name

"Today, Dunkin’ Donuts is locked in a nationwide popularity contest with Starbucks and independent coffeehouses, aggressively competing for the loyalty of an increasingly calorie-conscious customer base concerned with staying fit, not just caffeinated. Doughnuts — while delicious — connote neither.

To that end, the Massachusetts-based chain is deploying a new marketing strategy. Its first vestiges appeared this week in Pasadena, Calif., where a new Dunkin’ Donuts storefront emerged bearing a new name and slogan:

Dunkin’. Coffee and more.

Eighty-six the doughnuts! (Or, rather, “Donuts.”)

The branding experiment in Pasadena marks the start of a trial period during which the company will gauge customer response and evaluate whether to take the new name nationwide. The review is expected to stretch well into next year, the company said."

Intellectual Property 101: What Your Business Needs To Know About Copyright Law; Forbes, June 8, 2017

Art Neill, Forbes; Intellectual Property 101: What Your Business Needs To Know About Copyright Law

Co-authored with Teri Karobonik*

"Having an understanding of Intellectual Property law (IP) has become an essential skill for starting and growing a business. Many products,  technologies, and creative works you make are protected by one of the four types of Intellectual Property Law: copyright, trademark, patent, and trade secret.

Unlike “real property” law, which governs physical property and land (think “real estate”), intellectual property governs the use of creative and technical works as well as brands.

Whether you’re interested in reusing content from others, or trying to protect your own content and ideas, it’s critical that you understand which types of Intellectual Property might be in play. 

In the first part of this four part series, we’ll break down one of 4 main types of intellectual property, Copyright, and explain..."

Copy This: Vatican Stakes Out Rights to Pope Francis' Image; Associated Press via New York Times, February 26, 2017

Associated Press via New York Times; 

Copy This: Vatican Stakes Out Rights to Pope Francis' Image

""The pope's image rights are no different from those of any other famous celebrity and so it's not surprising that the Vatican is giving notice that it will protect its (intellectual property) rights as necessary," said Nick Kounoupias, the founder of an intellectual property consultancy in London. "What will be interesting to see, however, is how vigorously these rights are pursued, given who the IP owner is.""

The Rum War; 60 Minutes, 1/1/17

Sharyn Alfonsi, 60 Minutes; The Rum War

"Who makes the real Havana Club rum? And who owns the rights to sell the liquor under that famous brand name?"

Hamilton Producers Sue Over Copyright; Playbill, 10/8/16

Adam Hetrick, Playbill; Hamilton Producers Sue Over Copyright:

"Online t-shirt companies SunFrog and GearLaunch are being sued by the producers of Hamilton over copyright infringement. The show’s producers state that the companies have been selling bootleg t-shirts that utilize the show’s logo, according to TMZ.com."

Redskins, rock band battle government in trademark fight; Washington Post, 9/19/16

Sam Hananel, Washington Post; Redskins, rock band battle government in trademark fight:

"Simon Tam has openly criticized the Washington Redskins team name as a racist slur that demeans Native Americans.

But Tam and his Asian-American rock band, The Slants, find themselves on the same side as the NFL franchise in a First Amendment legal battle over trademark protection for names that some consider offensive. The Supreme Court could decide as early as this month whether to hear the dispute involving the Portland, Oregon-area band. And if the football team has its way, the justices could hear both cases in its new term. At issue is a constitutional challenge to a law barring the U.S. Patent and Trademark Office from registering trademarks that disparage minority groups. The office denied a trademark to the Slants in 2011 after finding the name disparaged people of Asian descent.

11 THINGS DC COMICS TAUGHT US ABOUT KFC'S MULTIDIMENSIONAL COLONEL SANDERS; Comic Book Resources, 7/5/16

Meagan Damore, Comic Book Resources; 11 THINGS DC COMICS TAUGHT US ABOUT KFC'S MULTIDIMENSIONAL COLONEL SANDERS:

[Kip Currier: Colonel Sanders' Original Recipe of 11 herbs and spices, owned by KFC, is probably the 2nd most famous trade secret in the world. The zany--and props-for-creativity--free comic "KFC: The Colonel Corps" has the villainous Colonel Sunder scheming to pluck the perennially sought-after secret recipe from Colonel Sanders' control to leverage it for...wait for it...WORLD-WIDE RESTAURANT DOMINION. Cue mustache...err, goatee twirl.]

""KFC: The Colonel Corps" -- available for free on comiXology -- pits Earth-1's Colonel Sanders against an old foe: Colonel Sunder, our fast food hero's evil doppelganger from Earth-3. Colonel Sanders first encountered him in "The Colonel of Two Worlds" special, and -- in "The Colonel Corps" -- Sunder is back to his evil ways: he wants to steal Sanders' recipe and take the easy way out in conquering the restaurant business, instead of putting hard work into becoming number one. In order to overcome Sunder, Sanders teams up with his doppelgangers from across the multiverse to put an end to Sunder's plans once and for all.

It's every bit as ridiculous as it sounds, and twice as fun."

Fur flies in this purrr-fect ‘Batcat v Supercat’ video; Comic Book Resources, 7/3/16

Kevin Melrose, Comic Book Resources; Fur flies in this purrr-fect ‘Batcat v Supercat’ video:

"This parody of “Batman v Superman: Dawn of Justice” — called “Batcat v Supercat,” of course — is the work of Kaipo JOnes, who also produced “Magneto Cat” and “X-Men Origins: Wolverine Cat.” You may detect a theme at play."

The Tarnished Trump Brand; New York Times, 12/11/15

Editorial Board, New York Times; The Tarnished Trump Brand:

"It takes a lot of work to make brands successful, and they can be undone quickly by controversy and scandal. Thanks to Mr. Trump himself, his name increasingly stands for bigotry and racism. His licensees should ask themselves if they want to be linked to a brand that carries those connotations."

Rapper Rick Ross Loses 'Everyday I'm Hustlin'' Copyright Claim; Reuters via New York Times, 9/16/15

Reuters via New York Times; Rapper Rick Ross Loses 'Everyday I'm Hustlin'' Copyright Claim:

"Rapper Rick Ross cannot copyright the words "Everyday I'm hustlin'," a U.S. judge has ruled, putting an end to his claim against music group LMFAO for selling T-shirts with the similar catch-phrase "Everyday I'm shufflin'."

In a ruling released on Tuesday in Miami federal court, U.S. District Judge Kathleen Williams said Ross's slogan, a prominent part of his 2006 debut hit "Hustlin'," is a short expression that courts have repeatedly said cannot be copyrighted...

In her order on Tuesday, Williams said that "Hustlin'," as a song, is protected by copyright. But Ross' three-word slogan, is made up of ordinary words and cannot be copyrighted, she said. The judge compared it to other music catch-phrases from the past, such as "you got the right one, uh-huh," "holla back," and "we get it poppin'," saying it is a "short expression of the sort that courts have uniformly held uncopyrightable.""

This man found out the hard way that you can’t copyright a chicken sandwich; Fortune, 8/25/15

Michael Addady, Fortune; This man found out the hard way that you can’t copyright a chicken sandwich:

"Norberto Colón Lorenzana recently filed a lawsuit against South American Restaurant Corporation (SARCO) claiming it stole his idea for a chicken sandwich recipe. He lost.

Colón was working at SARCO, an operator of Church’s Chicken locations in Puerto Rico, when he developed a concept for a new chicken sandwich. The company then performed taste tests with this original idea in mind, and the result was a new menu item that Colón called the “Pechu Sandwich.” Years later, SARCO decided to protect themselves by trademarking the name...

In explaining the court’s decision, Chief Judge Howard listed the eight categories of intellectual property that qualify for copyright protection:

(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.

Not surprisingly, “chicken sandwich” does not fall under any of these categories. Howard said a recipe is simply a list of “functional directions to achieve a result,” and does not qualify for copyright protection. This particular recipe listed fried chicken, lettuce, tomato, cheese, and mayo."

Indonesia Fails to Solve Olympic Ring Row Amid IOC Ban Talks; Reuters via New York Times, 2/18/15

Reuters via New York Times; Indonesia Fails to Solve Olympic Ring Row Amid IOC Ban Talks:

"The Indonesian Olympic Committee (KOI) and the Indonesian National Sports Committee (KONI) failed this week to resolve a copyright row involving the Olympic rings logo which has put the country's hosting of the 2018 Asian Games in jeopardy.

The International Olympic Committee (IOC) told the Indonesian government last month they faced a ban unless KONI stopped using the Olympic rings in its logo, saying only their member, KOI, was allowed to do so."

The NFL wants you to think these things are illegal; Ars Technica, 1/31/15

Sherwin Siy, Ars Technica; The NFL wants you to think these things are illegal:

"The voiceover in the clip says:

"This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited."

That second sentence is bunk from a legal standpoint. It is not illegal to describe or give an account of one of the biggest media events of the year. You can talk about the Super Bowl without infringing copyright. This is not a case of the NFL politely looking the other way while most of America, in public and private, in casual conversations and in commercial broadcasts, discusses the game without the NFL’s permission. The NFL would be laughed out of court for trying to prevent them from doing so—just because you have a copyright in a work doesn’t mean you can prevent people from talking about it. Copyright simply doesn’t extend that far."

Cloud Computing Is Forcing a Reconsideration of Intellectual Property; New York Times, 10/11/14

Quentin Hardy, New York Times; Cloud Computing Is Forcing a Reconsideration of Intellectual Property:

"Almost overnight, our technology revolution is shaking up entire industries and remaking society. Don’t get caught up in the small stuff, though: Tech really is changing how we think about our ideas.

We’ve used ideas to sculpt the globe since the Industrial Revolution, thanks largely to the way we handle intellectual property. When machines, and machines to make identical machines, mass-produced reliably identical goods, it was because people understood the same set of instructions.

Mass-produced books, music and movies were possible, too. Like machine-making instructions, these items were made reliable and protected with laws of copyright, patent and trademark.

Now, according to people involved in the business of protecting ideas, all of that is set to change.

Software, lashing together thousands of computer servers into fast and flexible cloud-computing systems, is the reason. Clouds, wirelessly connected to more software in just about everything, make it possible to shift, remix and borrow from once separate industrial categories."