Posner On Copyright: 10 Cases To Remember

When Judge Richard Allen Posner abruptly retired from the Seventh Circuit Court of Appeals last month, we were so caught off guard that it took a few weeks to get our tribute machine up and running.  Why a tribute to Posner on the Trademark and Copyright Law Blog?  Well, among the many legal areas profoundly influenced by this prolific jurist and author (the list of areas he did not affect would almost certainly be shorter),… More

I Subscribed to What? What Online Subscription-Based Marketers Need To Tell Their Consumers

I am certainly not the only person who has been lured into purchasing a too-good-to-be-true, deeply discounted product online, only to learn that what I actually purchased was a subscription to buy more stuff.  Kate Hudson’s athletic wear company Fabletics hooked me about a year ago when I saw a cute workout outfit advertised on social media for only $25.00.  I purchased the outfit on Fabletics’ website,… More

The FTC, Like, Revises Its Social Media Endorsement Guides, Bruh!

This month, the Federal Trade Commission (“FTC”) issued a revised version of “Endorsement Guides: What People Are Asking,” a series of questions and answers pertaining to the conduct of “influencers,” that is, anyone who endorses a product or service. The basic premise of the Endorsement Guides is that, if there exists a material connection between the influencer who is endorsing the product and the company that is marketing the product (e.g.,… More

. . . And Your Name Is? Court Orders Anonymous Parallel Importer To Reveal Itself In “Lever Rule” Trademark Challenge

We recently hosted an event at the firm where we discussed legal issues concerning parallel imports in the transportation industry, so a recent decision by the U.S. Court of International Trade discussing “Lever Rule” protection caught my attention.  To those who do not traffic in the world of parallel imports, the Lever Rule is a tool available to trademark owners to limit unauthorized imports of gray market goods bearing the owner’s mark. … More

A History Of GOLDEN GATE Trademarks For Alcoholic Beverages

In celebration of the Intellectual Property Owners Association’s Annual Meeting, currently underway in San Francisco, we offer a brief tour through some GOLDEN GATE-themed trademarks.  As a prominent feature of San Francisco’s geography, even before the iconic bridge was built, the Golden Gate is a popular theme in trademarks for local goods, both in word and image form.  For fun and focus, we have chosen to highlight GOLDEN GATE trademarks for alcoholic beverages.… More

Your Digital Millennium Copyright Registration May Be About To Expire

Last November, we wrote about the Copyright Office’s decision to ditch its paper registration system for the Digital Millennium Copyright Act (“DMCA”) safe harbor and start a new online system completely from scratch. If you have had other things on your mind since November 2016, we completely understand. However, if you run a website that hosts user content, copyright law will not understand (and you will lose DMCA safe harbor protection) unless you re-register under the new system before the end of December 2017. … More

Europe’s Answer To “I Love New York”: The Official Trademark Of Venice

This summer, I was lucky enough to vacation with family and friends in Venice, Italy.  Highlights included seeing the traditional city sights, riding around the canals in a gondola, seeing glass being blown on the Island of Murano, and eating wonderful food.  Lowlights included knocking down a stop sign with our rental car (my brother’s driving skills have sadly not improved over the years) and getting eaten alive by bugs (a theme that runs through all of my summer vacations).  … More

A Copyright Fable: Debunking The “Seven-Second Rule”

If you are a television news producer or documentary filmmaker, you have almost certainly faced this issue: You are putting together a story about a past event, and you want to make the point that this past event was once the subject of media coverage.  The easiest way to do that is to show some of that media coverage, for example, by including a short clip from the evening news or by panning across a newspaper article headline.… More

Defamation Claim Over “Slavery Wasn’t So Bad” Comment Revived by Fifth Circuit

What if people thought you said that “slavery wasn’t so bad?”  Would it harm your reputation?  Would it matter if the statement was contextualized with various caveats? According to the Fifth Circuit’s August 15, 2017 opinion in Block v. Tanenhaus, context is everything. The plaintiff, Walter Block, admits that he uttered the words: “slavery wasn’t so bad” while discussing the concept of “free association,” but argues that the New York Times took these words so badly out of context as to libel him.… More

An Unmapped Spanish Golden Mile: The “Indication Of Geographical Origin” Trademark Prohibition

Spain is famous for wines bathed in the sun. There are various splendid Spanish wine regions: Rioja, Valencia, Penedès, Priorat, Rueda — all of which would, by the way, make fantastic places to go during your holidays if you are still looking for a summer destination.

Another such location is the legendary winemaking region of Ribera del Duero in central Spain,… More

A Recipe For Sanctions: “No reasonable copyright attorney … would have filed this complaint.”

If you are going to file a copyright infringement complaint based on a cookbook, beware. Copyrights in cookbooks are considered “thinner” than copyrights in many other types of literary works. There are several reasons for this, including:

  • Ingredients are considered facts, and therefore lists of ingredients are not copyrightable because facts are not “original works of authorship” under 17 U.S.C. § 102(a);…
  • More

Who Owns The Copyright In The Photograph That Launched A Thousand Pleadings?

Over a decade ago, a lawyer snapped a photograph of the Indianapolis skyline, thus opening the gates to perhaps the most prolific flood of copyright litigation in the history of Indiana. Over the last five years or so, this image has been the basis for dozens of copyright infringement lawsuits against scads of defendants. However, on July 18, 2017, Southern District of Indiana Judge Richard Young cast doubt on whether the plaintiff in all those copyright cases actually ever owned the copyright in the first place.… More

Trademark Investigations In The Age Of Social Media: When Can You “Friend” An Adversary?

I have often called my friend and colleague, Dave Kluft, the master of opposition research.  When we have a trademark case together, he can be counted upon to think deeply about our adversaries, see the world through their eyes, and uncover every small detail about them that could possibly be relevant to our case.  Most of us mere mortals, however, limit our investigations to working hours and use traditional methods. … More

Trademark Office Issues Tequila Certification Mark Just In Time For National Tequila Day

National Tequila Day is celebrated on Monday, July 24. Tequila is made with the distilled extract of the blue agave plant, which grows in and around the city of Tequila and other parts of the state of Jalisco, Mexico. Although agave has been used for the manufacture of fermented beverages since pre-Columbian times, the ancestor of what we now know as “tequila” was reportedly first made in the 16th century by Spanish conquistadors who had run out of imported brandy (which is why they originally called it “Mezcal Brandy”).… More

America’s First Ice Cream Trademark Infringement Case … Was “FRENCH”

This weekend marks Bastille Day in France and also National Ice Cream Day in the United States, so it’s the perfect time to recount the very first ice cream-related trademark lawsuit in the U.S. (or at least the earliest one available to us): French Brothers Dairy v. Giacin.

The story began in 1842, when Thomas Joseph French of Sussex,… More