One KYLIE® to Rule Them All

The Guardian reports that international pop star Kylie Minogue’s company, KDB Pty Ltd., has filed an opposition proceeding against reality television star Kylie Jenner’s company, Kylie Jenner, Inc., over the trademark KYLIE.  Minogue’s opposition brief asserts six U.S. trademarks against Jenner’s pending KYLIE application, for the marks KYLIE, KYLIE MINOGUE, KYLIE MINOGUE DARLING, and LUCKY - THE KYLIE MINOGUE MUSICAL.  The elder Kylie, described in the filing as an “internationally renowned performing artist, humanitarian, and breast cancer activist,” appears to have taken issue with the attempted appropriation of the KYLIE mark by Jenner, whom the brief characterizes as “a secondary reality television personality” and “a 2015 home-schooled graduate of Laurel Springs School in Ojai, California.”  Jenner’s company has not yet filed an Answer to the Notice of Opposition, and the ultimate disposition of the case remains to be seen.  It is clear, however, that in Minogue’s view, there can be many Kylies, but only one KYLIE®.  Read the article here, and Minogue’s opposition brief here.  From The Guardian.

By Birte Fritsch (Flickr) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons.

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Monkeys, Selfies, and Copyrights, Part 4

Yes, it’s still a thing.  Ars Technica reports that, as the latest twist in an ongoing legal drama, a federal judge in San Francisco has rejected the argument that a monkey can own a copyright under current U.S. law.  In a hearing this week, U.S. District Judge William Orrick stated that the question of whether non-human animals can own copyrights “is an issue for Congress and the president,” adding that “[i]f they think animals should have the right of copyright they’re free, I think, under the Constitution, to do that.”  Calling the primate plaintiff’s argument a “stretch,” the judge indicated that he intended to dismiss the case in an upcoming order.  The judge’s decision is a setback for the monkey’s human representatives, the People for the Ethical Treatment of Animals (“PETA”), who brought the suit on the monkey’s behalf and intended that any proceeds from the suit would be used to help preserve the endangered monkey’s Indonesian habitat.

For those who have not been following this gripping saga as closely as you should have been (see earlier posts on this subject here, here, and here), the tale began in 2011 when a macaque monkey on the Indonesian island of Sulawesi snapped a series of selfies with a camera that had been set up by British wildlife photographer David Slater.  Slater then filed for U.S. copyright protection for the images, which had quickly gone viral on the Internet.  The U.S. Copyright Office refused registration on the basis that copyright protection requires human authorship of the work(s), and in 2014 amended its published guidelines to specifically state that “[a] photograph taken by a monkey” is non-registrable.  The subsequent PETA lawsuit against Slater, filed in September 2015, is based on the argument that the law does not specifically state that copyrights may only be owned by humans, and therefore does not preclude animal ownership.  Judge Orrick’s rejection of this argument is a blow not only to PETA and its monkey plaintiff, but also to the noble cause of animal intellectual property rights in general.  The decision will likely send shockwaves though the animal community, and will no doubt stifle animal creativity and reduce the already meager economic incentives that animals have to create, sell, license, publicly perform, and otherwise exploit original works of authorship.  Apparently, for animals, the law of the jungle prevails.  Read the article here.  From Ars Technica.

By Self-portrait by the depicted Macaca nigra female. See article. [Public domain], via Wikimedia Commons.

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Justin Timberlake’s “Lawsuit & Tie”

The New York Daily News reports that singer Justin Timberlake’s record label, Universal Music Group (“UMG”), is being sued by two members of the 1970s R&B group Sly, Slick & Wicked for allegedly using vocal samples from their song “Sho ‘Nuff” in Timberlake’s 2013 hit “Suit & Tie” without permission.  “[A]ccording to court documents obtained by the Daily News,” the plaintiffs claim that UMG paid for permission to sample the music from “Sho ‘Nuff,” but was never authorized to use samples of the vocals.  The article does not reveal the specific relief requested in the lawsuit, or the amount of damages or royalties sought, but notes that the Grammy-winning “Suit & Tie” was “an enormous hit, selling more than 3 million copies while garnering nearly 100 million clicks on YouTube since its release in 2013.”  Neither UMG nor Timberlake appear to have yet made any public statements regarding the suit.  Read the article here, and compare "Suit & Tie" and "Sho 'Nuff" here and here.   From the New York Daily News.

By karina3094 [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons.

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What Could Have Entered the Public Domain on January 1, 2016?

What Could Have Entered the Public Domain on January 1, 2016?  Duke University’s Center for the Study of the Public Domain helpfully answers this question in the 2016 version of its annual report on the subject.  January 1st of each year, known by normal human beings as New Year’s Day, is also known by copyright nerds as Public Domain Day, the day that creative works with expiring copyrights enter the public domain and can be freely used without permission.  In an alternate universe where U.S. copyright protection had not been extended by Congress from its original 28-year term to the current term of the author’s life plus 70 years, many creative works of enormous cultural and historical significance would be entering the public domain today.

Books and plays such as Ian Fleming’s Goldfinger, Agatha Christie’s Cat Among the Pigeons, Lorraine Hansberry’s A Raisin in the Sun, E.R. Braithwaite’s To Sir, With Love, William Burroughs’s The Naked Lunch, Richard Condon’s The Manchurian Candidate, Cornelius Ryan’s The Longest Day, Gunter Grass’s The Tin Drum, Saul Bellow’s Henderson the Rain King, Robert Heinlein’s Starship Troopers, Walter Miller’s A Canticle for Leibowitz, and Strunk and White’s The Elements of Style would be freely available to students and teachers.  Films and television shows like Ben-Hur, North by Northwest, Sleeping Beauty, Some Like It Hot, Suddenly Last Summer, Anatomy of a Murder, The Diary of Anne Frank, Rio Bravo, Journey to the Center of the Earth, The Twilight Zone, Rawhide, and Rocky and Bullwinkle could be shown, copied, archived, and edited into new works.  Musical works such as Rodgers & Hammerstein’s The Sound of Music, Miles Davis’s Kind of Blue, Leiber & Stoller’s Love Potion No. 9, and Ray Charles’s What’d I Say could be performed, transcribed, adapted, reimagined, and freely enjoyed without a license.  In the real world of U.S. copyright law, however, neither these nor any other copyrighted works will be entering the public domain this year, or next year, or the year after that.  Under current law, no copyrighted works are slated to enter the public domain until 2019, and none of the titles named above will enter the public domain in the U.S. until 2055.  Regardless of one’s views on the wisdom or propriety of our seemingly ever-lengthening copyright terms, the advocates and curators of our creative commons seem to have little to celebrate this Public Domain Day.

Image courtesy of Duke University’s Center for the Study of the Public Domain (http://web.law.duke.edu/images/cspd/collage2016.png).

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Happy 2016!

On behalf of the folks at Trademarkwise®, best wishes for 2016!  May the new year bring you everything your heart desires, which presumably is comprehensive protection for your trademark, copyright, and intellectual property matters on a budget-friendly, flat fee basis.  Carpe TM!

Image courtesy of Best Animations (http://bestanimations.com/Holidays/NewYear/NewYear.html).

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Marshawn Lynch Really Is Just Here So He Won’t Get Fined

From the “just so there’s no misunderstanding” department, Newsweek reports that Seattle Seahawks running back Marshawn Lynch has now registered his oft-repeated phrase I’M JUST HERE SO I WON’T GET FINED as a trademark.  Lynch filed to protect his “trademark” saying with the U.S. Patent and Trademark Office in February 2015, and the mark issued as U.S. Registration No. 4878656 on December 29, 2015.  The registration covers “athletic shirts; baseball caps and hats; beanies; fleece pullovers; hooded pullovers; hooded sweat shirts; pullovers; short-sleeved or long-sleeved t-shirts; sweat shirts; t-shirts; track jackets” in International Class 25, and Lynch’s BEAST MODE® clothing line has been selling clothing items bearing the I’M JUST HERE SO I WON’T GET FINED mark since April 2015.  In addition to providing federal trademark protection for the mark, Lynch’s registration provides some much-needed clarity to the question of why, exactly, Lynch is here, which further illustrates the myriad benefits offered by trademark registration, as well as the indispensable role that trademark attorneys play in modern society.  Read the article here, and explain the reason for your own presence here.  From Newsweek.

By Keith Allison (Flickr) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons.

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Taylor Swift Gets Sued, Sued, Sued, Sued, Sued

CNN Money reports that singer Taylor Swift has been hit with a $42 million copyright infringement lawsuit over her hit song “Shake It Off.”  The plaintiff, Jessie Braham, whom the article characterizes as a “struggling out-of-work musician,” is claiming that Swift unlawfully copied the lyrics from his song “Haters Gone Hate,” which he copyrighted in 2013.  Braham’s song features the lyrics “Haters gone hate, playas gone play.  Watch out for them fakers, they'll fake you everyday,” while Swift’s lyrics are “The players gonna play, play, play, play, play.  And the haters gonna hate, hate, hate, hate, hate.  And the fakers gonna fake, fake, fake, fake, fake.”  In addition to the $42 million in damages from Swift, Braham is also seeking to have his name added as a songwriter to “Shake It Off.”

The suit is newly filed, and has not yet been litigated.  However, according to Michael Einhorn, “an expert witness who specializes in intellectual property cases… Swift's lawyers will have many defenses available to them.”  In Einhorn’s estimation, “This case is going nowhere.”  Whether or not Swift will be able to shake Braham off remains to be seen.  From CNN Money.

By Jana Zills (Taylor Swift RED tour 2013Uploaded by tm) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons.

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The Washington JEBSKINS, Perhaps?

CBS Miami reports that Republican presidential candidate Jeb Bush has weighed in on the ongoing controversy surrounding the use of the term “redskins” in the name of Washington’s NFL team.  In an interview for the radio show The Arena, the former Florida governor stated that he did not think that the team should change its name, opining that “[i]t’s a sport, for crying out loud. It’s a football team. I’m missing something here, I guess.”  On the other side of the argument, the activist group Change the Mascot said in a statement that “no presidential candidate should be promoting this racial slur against Native Americans,” and agreed that Bush “clearly is missing something.”  Similarly, in 2014 the U.S. Trademark Trial and Appeal Board found the term “redskins” to be disparaging, cancelling all six of the team’s federal trademark registrations containing the term.  As noted in previous blog posts here, here, here, here, here, here, and here, the cancellation of the team’s trademark registrations does not mean that it cannot continuing using the name, or that other parties are free to use the name without permission.  However, trademark registration does provide significant benefits, particularly when it comes to enforcement, and one imagines that most trademark owners would prefer to have their marks protected by registration.

There are many people who, like Jeb Bush, think that the “redskins” controversy is much ado about nothing, and many others who find the term deeply offensive and disparaging to Native Americans.  Regardless of one’s views on the subject, the long-running dispute could likely be resolved by changing the team’s name to something less controversial and, as a bonus, more registrable.  Bush, for his part, has already filed to register JEB! as a trademark, and plainly likes the idea of a ® registration symbol next to his nickname.  How about the JEBSKINS?  Everyone wins.  Read the full article here.  From CBS Miami.

By Michael Vadon (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons.

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Will AirPods Replace EarPods For Your iPod?

AppleInsider reports that a newly-incorporated entity called Entertainment in Flight, LLC has filed a U.S. trademark application for the mark AIRPODS.  According to the application, the AIRPODS mark is intended to be used with the following list of goods:

Audio components and accessories; sound recording and reproducing apparatus; digital video recorders and players; remote control apparatus; audio speakers; earphones, headphones; microphones; voice recording and recognition apparatus; radios, radio transmitters, and receivers; handheld digital electronic devices and software related thereto; wireless communication devices for voice, data or image transmission; electrical and electronic connectors, couplers, wires, cables, chargers, docks, docking stations, interfaces, and adapters for use with all of the aforesaid goods.

The U.S. application, filed September 22, 2015, claims priority to an earlier application for the AIRPODS mark filed in Jamaica on March 23, 2015, just one day shy of six months before the U.S. filing date.  The timing of the U.S. filing was clearly based on the six-month deadline for priority filing under the Paris Convention for the Protection of Industrial Property, a treaty between the U.S. and 174 other countries that allows a trademark application filed in one member country (e.g., the U.S.) to claim priority to an equivalent trademark application filed in another member country (e.g., Jamaica), if the later application is filed within six months of the filing date of the earlier application (see an earlier post on this subject here).

The AIRPODS filing has the Apple user community abuzz with speculation that Apple may be the real company behind the application, and that the applicant of record, Entertainment in Flight, LLC, is just a proxy controlled by Apple.  There are several pieces of circumstantial evidence to support the proposition that AIRPODS is intended to be the name of one or more future Apple products.  First, the AIRPODS moniker fits squarely within the company’s current and past product nomenclature, which includes names such as iPod, iPad Air, MacBook Air, AirDrop, AirMac, AirPlay, AirPort, AirPrint, AirTunes, and perhaps most tellingly, EarPods.  Second, the strategy of initially filing in Jamaica, then filing a U.S. application on or near the six-month priority deadline, is one frequently employed by Apple (see, e.g., the aforesaid EarPods mark).  The Jamaica Intellectual Property Office is favored by Apple due to the fact that, in addition to being somewhat obscure, it does not appear to have a publicly accessible database of trademark filings, which enables the company to secure an early filing date while effectively keeping a new product name secret.  Third, the goods listed in the application could easily encompass large swaths of Apple’s current product lines and technologies.  Finally, as the article notes, Apple clearly envisions a wireless future for its products, and wireless headphones would be a natural step in that direction.  While only time will tell whether any of this speculation proves to be correct, you should not be surprised if your next iPhone comes with AirPods.  From AppleInsider.

By Juanibb (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons.

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Madison Chamber of Commerce Gets New Logo

The Greater Madison Chamber of Commerce tweeted this week that it is adopting a new logo.  The new logo, shown below, is already featured on the GMCC’s Twitter profile, and one imagines that the organization’s website will soon be updated as well.  The new logo can be seen bursting into action by clicking on the video tweet below.  Interestingly (well, to some), the GMCC does not appear to have sought or secured federal or state trademark protection for either the incoming or outgoing logo design.

Failure to secure trademark protection for a business name, slogan, or logo can potentially result in consumer confusion, a loss of exclusive rights, an inability to prevent others from using similar or identical marks, a forced rebranding for the business, and/or infringement liability, all of which tend to be rather nasty (and expensive) surprises for business owners.  Moreover, almost any legal issue arising from the use of an unregistered mark will likely cost more to resolve than the cost of securing protection for the mark.  Trademarks can be tremendously valuable assets, but much of their value lies in the ability to protect and enforce them.  Business owners should bear this in mind before making significant investments in their brands.

Ladies and Gentlemen, @MadisonBiz’s new logo!... pic.twitter.com/RMnxm882Bu

— Madison, WI Chamber (@MadisonBiz) October 1, 2015

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Today in Copyright History: 9/12

U.S. copyright protection became available for motion pictures on August 24, 1912, and on September 12, 1912, the first motion picture registration was issued to Republic Film Company for the Pierce Kingsley film “Black Sheep’s Wool” (see an earlier post on this subject here).

39 years later, on September 12, 1951, Arthur Fisher was appointed the fifth Register of Copyrights.  Fisher, a graduate of Harvard College and Harvard Law School, taught constitutional law at the University of Montana, was editor of a newspaper, partner in a Chicago law firm, and held various positions in government before joining the Copyright Office as associate register in 1946.  An authority on both national and international copyright law, Fisher sought to expand the international protection of literary property, and led the drive that made the United States an adherent, for the first time, to a world-wide copyright agreement, the Universal Copyright Convention in 1955.  Fisher obtained funding from Congress for a series of 34 studies of U.S. copyright law that examined the current law and comparable laws of foreign countries and international conventions, analyzed numerous issues, and suggested various solutions.  Prepared under his direction, these studies provided the groundwork for the general revision of the U.S. law that ultimately resulted in the landmark Copyright Act of 1976.  From the History of Copyright Timeline at the U.S. Copyright Office.

Public domain, via the U.S. Copyright Office.

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Today in Copyright History: 9/9

On September 9, 1886, the Berne Convention for the Protection of Literary and Artistic Works, the first multilateral international copyright treaty, was signed in Berne, Switzerland by Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia, and the United Kingdom.  The United States was represented at the conference, but did not become a signatory until March 1, 1989, more than a century later, when the Berne Convention Implementation Act of 1988 was enacted.  The Berne Convention, which to date has been joined by 167 countries, is one of two principal international copyright conventions, the other being the 1952 Universal Copyright Convention, which the U.S. joined in 1955.  From the History of Copyright Timeline at the U.S. Copyright Office.

By User:Conscious [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons.

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Today in Copyright History: 9/1

On September 1, 1971, George D. Cary was appointed the seventh Register of Copyrights, succeeding Abraham L. Kaminstein.  He began his service in the U.S. Copyright Office as an attorney in April 1947, and was promoted to assistant chief of the Examining Division, principal legal advisor, and general counsel.  Cary became deputy Register in 1961, and served for 10 years before his appointment as Register.  From the History of Copyright Timeline at the U.S. Copyright Office.

Public domain, via the U.S. Copyright Office.

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Today in Copyright History: 8/31

On August 31, 1876, French sculptor Frédéric Auguste Bartholdi was issued U.S. Copyright Registration No. 9939-G for the “Statue of American Independence” (later known as “Liberty Enlightening the World,” or the “Statue of Liberty”), depositing a photo model and artistic rendering of how the statue was to appear against the New York skyline.  Bartholdi also secured concurrent protection for the statue’s design under U.S. Design Patent No. D11023, issued February 18, 1879.  From the History of Copyright Timeline at the U.S. Copyright Office.

By Giorgio Martini (Own work) [CC BY-SA 2.5 (http://creativecommons.org/licenses/by-sa/2.5)], via Wikimedia Commons.

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Today in Copyright History: 8/24

On August 24, 1912, U.S. copyright protection was extended to motion pictures.  Prior to this, motion pictures could only be registered as a series of still photographs.  “Edison Kinetoscopic Record of a Sneeze” (also known as “Fred Ott’s Sneeze”), a short, sternutational film of one of Thomas Edison’s assistants registered in 1894, is the oldest surviving motion picture deposited as still photographs.  From the History of Copyright Timeline at the U.S. Copyright Office.

By W.K.-L. Dickson (http://www.loc.gov/pictures/resource/ppmsca.13462/) [Public domain], via Wikimedia Commons.

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Today in Copyright History: 8/18

On August 18, 1787, founding father and future president James Madison submitted a provision to the framers of the U.S. Constitution to “secure to literary authors their copyrights for a limited time.”  Adopted in amended form as Article I, Section 8, Clause 8 of the Constitution, this language became known as the Copyright Clause, and provides the constitutional basis of U.S. copyright law.

69 years later, on August 18, 1856, copyright protection was extended to dramatic compositions, including, for the first time, the right of public performance.  From the History of Copyright Timeline at the U.S. Copyright Office.

By John Vanderlyn (1775–1852) [Public domain], via Wikimedia Commons.

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Today in Copyright History: 8/7

On August 7, 1994, Marybeth Peters was appointed the eleventh Register of Copyrights.  She joined the U.S. Copyright Office staff in 1966 as a music examiner, and advanced to positions at all levels of the Office, including acting general counsel, policy planning advisor, chief of the Examining Division, chief of the Information and Reference Division, and attorney-advisor.  Peters was instrumental in the consideration and enactment of most of the 40 amendments to Title 17 that were enacted during her time as Register, and her 16-year tenure as Register was exceeded in length only by the 33-year stint of the first Register, Thorvald Solberg.  From the History of Copyright Timeline at the U.S. Copyright Office.

Public domain, via the U.S. Copyright Office.

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The Donald’s TRUMP CARD®?

As The Wall Street Journal Law Blog observed yesterday, “[i]f presidential candidates were judged by the number of trademark applications they file, Republican presidential candidate Donald Trump would be the hands-down winner.”  In addition to the large number of trademarks owned by his various corporate interests, Trump has filed more than three hundred trademark applications in the United States under his own name as an individual, most of which unsurprisingly either contain or consist solely of the word TRUMP.  Like his self-effacing public persona, Trump’s trademark portfolio practically gleams with humility and understatement, with marks such as THE DONALD, DONALD TRUMP, TRUMPED, TRUMP D’ELEGANCE, TOUR DE TRUMP, OYSTERS TRUMP, TRUMPTINI, PURELY TRUMP, TRUMP CARD, TRUMP POWER, TRUMP MONEY, TRUMP CLASS, TRUMP STYLE, TRUMP TOUCH, TRUMP WORLD, and, of course, YOU’RE FIRED, to name but a few.  Trump’s campaign slogan, MAKE AMERICA GREAT AGAIN®, is also a registered trademark, and with Trump being the current front-runner for the Republican presidential nomination, the possibility of a direct correlation between trademarks and poll numbers cannot be ruled out.  Only time will tell whether any of the other sixteen Republican candidates will surpass THE DONALD in either category.  From The Wall Street Journal Law Blog.

By Michael Vadon (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons.

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Today in Copyright History: 8/1

On August 1, 1936, Clement Lincoln Bouvé was appointed the third Register of Copyrights.  Bouvé, who served from 1936 to 1943, was the first lawyer to serve as Register.  Among the many notable accomplishments of his tenure was the creation of the copyright card catalog, 1938-1945, the first U.S. Copyright Office catalog to combine into one alphabet all of the entries representing all authors, claimants, and titles for all classes of registered works.  From the History of Copyright Timeline at the U.S. Copyright Office.

Public domain, via the U.S. Copyright Office.

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Today in Copyright History: 7/31

On July 31, 1939, an act was approved to transfer registration of commercial prints and labels from the U.S. Patent Office to the U.S. Copyright Office, effective July 1, 1940.  From the History of Copyright Timeline at the U.S. Copyright Office.

By Related names:  Elliott, William P Mills, Robert Cluss and Schulze Faulkner, Fryer and Faulkner Underwood, Bayard Oehrlein and Associates Becker, Bryan, photographer Hartman-Cox Architects, delineator Jandoli, Liz, transmitter [Public domain], via Wikimedia Commons.

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