French Trademark Office Will Not Register “PRAY FOR PARIS” Or “JE SUIS PARIS”

downloadAfter the terrorist attack on Charlie Hebdo in January 2015, the French Trademark Office received so many applications for “JE SUIS CHARLIE” that the Office issued a statement in which it warned that it would not register any of these marks. The reason given at that time by the Office was that, because of the widespread use of the slogan, it lacked distinctiveness.

We commented that it was very unusual for the Office to issue this kind of general statement, since normally the validity of a trademark has to… More

The Genericide of the Turkey Stick: Another Thanksgiving Trademark Tale

Turkey StickFor the past few years, the Trademark and Copyright Law Blog has marked Thanksgiving with a note about the history of turkey trademarks.  Last year, we discussed the ownership of GOBBLE GOBBLE, and before that we told you why you can’t buy BAKED TAM anymore. This year, our subject is the TURKEY STICK.

Hickory Farms was founded in 1951, and shortly thereafter it started selling “Beef Sticks,” a precooked sausage product. In 1969, it registered the BEEF STICK mark, and the product became a leading seller in its category.


Domain Name Strategies for Start-Up Companies

CaptureJust as it is important for start-up companies to be mindful of early-stage trademark and copyright protection strategies (see our guides entitled “Trademark Strategies for Start-Up Companies” and “Copyright Strategies for Start-Up Companies”), savvy start-up founders will be thinking about domain name acquisition and related issues right at the beginning.

These days, it is essential for a start-up company to have at least a basic web presence, and to register a domain name for that purpose.  But sometimes acquiring that perfect domain name isn’t as simple as paying a… More

Authorship Credit for Scholarly and Creative Works: The Elusive American Attribution Right

creditWhat if were to tell you that I jointly authored this article with a colleague, but that I’m not going to give her any credit or attribution because I don’t feel like it? Can she sue me for copyright infringement? No, because we are joint authors, so I have as much a right to publish this article as she does. If we lived in Europe, my colleague might have relied on her inherent right of attribution, a moral right (or droit moral) which would have required me to list her as… More

Boston Marathon Can’t Stop MARATHON MONDAY Trademark Registration


In 1897, the Boston Athletic Association (BAA) first organized the Boston Marathon and has been running the event ever since. The world famous race has been held on the third Monday of April every year since 1969, and it is the only major Marathon to be held (and internationally broadcast) on a Monday.  If you live in Boston, “Marathon Monday” means that you might get the day off, that under no circumstances should you try to drive downtown and, most importantly, that the Boston Marathon is happening.


The Devil (and the Copyright) is in the Details

devils dueWould-be filmmakers often see the ghostly reflection of their own work in allegedly infringing films that actually get made. With many such copyright claims, the devil is – figuratively – in the details, but in the recent case of Brown v. Twentieth Century Fox, the satanic details were quite literal.

Last year, a film called Devil’s Due premiered. It was greeted by unappreciative reviews, unenthusiastic audiences and then by a lawsuit.  With a whopping 18% rating on Rotten Tomatoes, the critical consensus was that the film was “derivative… More

Can I get a C-O-P-Y-R-I-G-H-T? Sixth Circuit Holds Cheerleading Uniform Designs Copyrightable

When are clothing designs sufficiently severable from the utilitarian aspects of the clothing so that the designs can be protected by copyright? That is a question courts have wrestled with for years, and the Sixth Circuit Court of Appeals answered in Varsity Brands, Inc. v. Star Athletica LLC, a case involving a long-running dispute between Varsity Brands, a company which designs, manufactures and sells cheerleading apparel, and its competitor Star Athletica (“Star”).  It is also a question that may be headed to the U.S. Supreme Court.


The dispute began in 2010, when Varsity Brands sued Star for infringing… More

Implied Threat on Facebook Insufficient to Support Stalking Conviction

FacebookLast month, the Massachusetts Supreme Judicial Court (SJC) held that a Facebook profile may constitute a “threat” within the meaning of the Massachusetts stalking statute. However, a profile that is merely “vaguely ominous or disturbing,” as was the case in Commonwealth v. Walters, is insufficient to support a conviction.


In 2006, Michael Walters and his girlfriend bought a house together in Seekonk, Massachusetts, just over the Rhode Island border. In 2007, the couple split up, but kept living in the same house. Walters began a pattern of harassment against… More

First Circuit Clarifies Rights of Co-Author of Joint Derivative Work to Make Further Derivatives

CaptureIn a squabble between two psychologists over rights to books about “explosive” children, the First Circuit weighed in this summer with an opinion holding that a work of authorship under the Copyright Act can be simultaneously both a “joint work” and a “derivative work.”  The case is Greene v. Ablon, 794 F.3d 133 (1st Cir. 2015).

The plaintiff, Dr. Ross Greene, pioneered a method for treating children with “explosive” behaviors, known as the Collaborative Problem Solving (“CPS”) approach.  Dr. Greene worked for many years at Massachusetts General Hospital, where he… More

Are You Sure This Isn’t About Copyright? Chicken Sandwiches, Monkey Selfies and the Boundaries of Copyright Law

CaptureLast week, a wild crested macaque named Naruto (but really People for the Ethical Treatment of Animals) filed a copyright infringement lawsuit against photographer David John Slater in the Northern District of California. The suit alleges that Slater infringed Naruto’s copyright in the famous “monkey selfies” (taken by Naruto with Slater’s camera). The complaint requests that the Court order Slater to disgorge any profits he has realized from the distribution of the images and establish a trust, administered by PETA, to “be used solely for the benefit of Naruto, his… More

Copyright Strategies for Start-Up Companies

GyroAs a leader of a start-up company, you are probably aware of the importance of protecting your company’s innovative products, services and technologies through patent filings.  If you are savvy, you are also aware of the importance of having a trademark and branding strategy as well (see our guide entitled “Trademark Strategies for Start-Up Companies”).  Most start-up companies overlook copyright issues, however, and this can create problems down the road.  In this article, we identify the most common traps that we see start-up companies fall into, and provide recommendations for how… More

Of Slants, Skins and Signs: The Coming First Amendment Showdown

adsfAre we heading for a constitutional showdown over Section 2(a) of the Lanham Act?  Will the Supreme Court strike down this prohibition on disparaging marks as an abridgement of First Amendment rights?  It is certainly beginning to look like a distinct possibility. Two developments lead me to this conclusion.

Disparaging Marks and Spending Power

The first development arises from two trademark cases that are now on appeal, In re Tam and Pro-Football v. Blackhorse.  In In re Tam, a panel of the Federal Circuit affirmed the decision of the… More

Marshmallow Justice: 10 Tales of Legal Fluff and Other Stuff

FluffJust about one hundred years ago, Archibald Query of Somerville, Massachusetts invented the first commercial marshmallow cream, which he pedaled door-to-door in Union Square.  Around 1917, he sold the recipe for $500 to two candy makers in Lynn who had just returned from World War I, and their company (Durkee-Mower) still makes Marshmallow Fluff today. In 2006, Union Square boosters began celebrating Query’s achievement with the Fluff Festival, a day of activities literally and figuratively stuffed with marshmallows. In honor of the 10th annual Fluff Festival, which takes place… More

Ninth Circuit “Dancing Baby” Copyright Decision: A Quick Read for the Busy Practitioner

Dancing BabyEarlier this week, the Ninth Circuit affirmed the Northern District of California’s denial of cross motions for summary judgment in Lenz v. Universal Music. In an opinion by Judge Richard Tallman, the Court held that the defense of fair use must be considered by a copyright owner prior to the filing of a takedown notice under the Digital Millennium Copyright Act (DMCA).  Here is our summary of the opinion:

What’s the case about?

Universal assigned a legal assistant to monitor YouTube for copyright infringement. The legal assistant… More

USPTO Pilot Program Offers Relief to Proprietors of “Evolving” Goods and Services

Imagine, for a moment, a successful software company, Agave, that owns the trademark PHOTOCHOPS for a popular image-editing program.  Being a diligent trademark owner, Agave registered the trademark PHOTOCHOPS in 2005, right when the original PHOTOCHOPS launched, in connection with “downloadable computer programs for creating and manipulating graphic images on a computer” in International Class 9.  Over the years, the PHOTOCHOPS platform slowly shifts from downloadable software to a pure software-as-a-service (SaaS) platform, where the software is hosted entirely server-side.  In 2010, Agave is able to file a Section 8 declaration of continued use, because it is still permitting existing… More