We previously reported on the Supreme Court’s recent decision on June 25, 2014 that Aereo, Inc.’s internet television service infringed the copyright of the programs being transmitted by the service. In holding that Aereo was doing more than simply providing antenna access to its customers, Justice Breyer identified “Aereo’s overwhelming likeness to the cable companies” that are subject to regulation under the 1976 Copyright Act. Following the opinion, Aereo suspended its service temporarily, but saw in Justice Breyer’s language a potential silver lining in an otherwise grim… More
Last week, Judge William Quarles of the District of Maryland issued an injunction preventing Maryland Republican State Senator Steve Hershey from using his own campaign literature. The case was brought by the Hershey Chocolate Company, which alleged that the Senator’s campaign poster and other materials infringed the famous confectioner’s trade dress. The lawsuit must have come as no surprise to Senator Hershey because, prior to this, the parties had been playing trademark whack-a-mole for about a dozen years.
Big Chocolate Whack-a-Mole
In 2002, Mr. Hershey ran for County Commissioner, using… More
So, how is copyright law doing as an online reputation management tool?
We have written many times recently about the use of copyright law to do what defamation law can’t: take stuff down from the internet. A politician in California claimed copyright in her campaign photo in order to have a satirical blog deleted. Dental patients have been asked to sign away their copyrights to hypothetical future online reviews so the dentists can take down the ones they don’t like. And most notably, in Garcia v. Google, the… More
Every attorney in the United States understands that West Publishing Corp. (“Westlaw”) and the LexisNexis Group (“Lexis”) are perennial rivals in the electronic legal research field. As such, they don’t agree on much, but there are some important exceptions. Earlier this month, one of those exceptions came to a pleasing conclusion for both companies, when Judge Jed Rakoff of the Southern District of New York issued his long-promised opinion in White v. West Publishing Corp.
The case was brought by Edward White, an Oklahoma-based IP attorney. Some of White’s… More
Before the passage of anti-SLAPP legislation, citizens engaged in First Amendment petitioning activity often found themselves the targets of retaliatory lawsuits. For example, a group of neighbors might speak out at a local zoning commission hearing to block approval for a new building development, only to find themselves defending against a costly lawsuit brought by the developer for, among other things, defamation or commercial disparagement.
This December will mark the 20th anniversary of the Massachusetts anti-SLAPP statute, Chapter 231, Section 59H of the Massachusetts General Laws. The statute seeks to discourage retaliatory defamation lawsuits and similar claims by providing petitioners the… More
Late last year, in a matter of first impression, the Federal Circuit affirmed the Trademark Trial and Appeal Board and held that the city of Houston could not register its official municipal seal with the United States Patent and Trademark Office (USPTO). The basis for this decision was 15 U.S.C. § 1052(b), which forbids trademark registration for the “flag or coat of arms or other insignia of . . . any State or municipality.”
The city of Houston had argued that the statute’s purpose was to prevent public confusion as to… More
The recent case of Oppenheimer v. Allvoices is, if nothing else, a cautionary tale for everyone who wants to start the next big social networking site or provide any internet service with user-generated content. The moral is that the Digital Millennium Copyright Act (DMCA) is not self-executing; there are a few hoops you have to jump through before you can take advantage of the DMCA safe harbor. One of them is selecting and registering a designated agent.
What is a DMCA Designated Agent?
Under the DMCA, an online service provider… More
This summer marks the 100th anniversary of the outbreak of World War I. The Archduke Ferdinand was assassinated on June 28, 1914 and, by the end of August 1914, Germany, Russia, France and the United Kingdom had joined the war. The United States entered the fray on April 6, 1917, by declaring war on Germany. This was when the word “slacker” suddenly became defamatory.
The Slacker Lists
The U.S. armed services actively solicited volunteers with an astonishingly inventive array of recruitment posters, but it wasn’t enough. On May 18, 1917, the Selective Service Act authorized the raising of… More
Recent revelations concerning the activities of the National Security Agency (“NSA”) include reports that the NSA and other government agencies have – in secret – routinely collected in bulk the “metadata” associated with millions of telephone users within the United States. While metadata does not include the actual words spoken in a telephone call or written in the body of an email, it often includes transactional data that, in the aggregate, reveals sensitive personal information. Whether and to what extent metadata deserves protection from… More
Television broadcasters and other digital content providers issued a collective sigh of relief on June 25, 2014, when the United States Supreme Court issued its much-awaited opinion in American Broadcasting Companies, Inc. v. Aereo, Inc. The Court reversed the Second Circuit and held that Aereo’s television service, which allowed viewers to watch broadcast television programs over the internet, infringed the broadcasters’ exclusive right to publicly perform their work.
For prospective customers of Aereo and similar services, this means that the ability to legally watch television over the internet is unlikely… More
Do you want your company to control .app or .restaurant? Applying to operate a generic top-level domain (gTLD) isn’t for the faint of heart. Although several hundred companies ponied up the $185,000 application fee for over 1,900 total gTLD applications, that’s only the first stage in the process. Once filed, ICANN reviews each application for financial, technical, and operational competence, ensuring that each applicant has the financial wherewithal, technical savvy, and a comprehensive plan to safely operate the gTLD registry for at least the length of the initial ten-year contract term.
If an application passes muster, there are… More
In its recent decision in Cigar King v. Corporacion Habanos, the Federal Circuit Court of Appeals affirmed the cancellation of Cigar King’s trademarks after it failed to comply with discovery orders. This was only the latest in a long line of trademark disputes between cigar brands, and is by no means the first example of a stogie manufacturer that had a complicated relationship with a court order. Perhaps the party with the most chutzpah in this regard was the Fritz Brothers Company of Cincinnati.
In 1887, the Fritz Brothers… More
The matter of Terra Sul Corp. v. Boi Na Braza, Inc. involved a concurrent use proceeding between two restaurants over their nearly identical names. In theory, the scope of the conflict was nationwide, but in reality, as one party put it, “[t]his dispute has always been about New York City.” In a recent precedential opinion, the TTAB concluded that, because the “New York restaurant scene’s embrace is sufficiently broad to reach Newark,” a New Jersey restaurant’s area of concurrent use included New York City and, by extension, New York State.
In a ruling sure to generate heated discussion in the sports world, the trademark community and elsewhere, a divided panel of the Trademark Trial and Appeal Board (TTAB) has ruled that six registered marks including the term REDSKINS owned by the Washington NFL franchise should be cancelled.
A Long, Strange Trip
Of the six marks at issue, one was registered in 1967, three in 1974, one in 1978, and the most recent in 1990. It is well established that a finding of disparagement must be based upon perception of the term… More
The Supreme Court issued a unanimous decision last week in Pom Wonderful LLC v. Coca-Cola Co., a case pitting the false advertising provisions of the Lanham Act against the beverage labeling standards of the federal Food Drug & Cosmetics Act (FDCA). Pom Wonderful, maker of 100% pomegranate juice and other pomegranate-based products, brought false advertising claims against Coca-Cola, accusing its Minute Maid Pomegranate Blueberry drink of misleading consumers into believing they were drinking more pomegranate and blueberry juice than they in fact were. Coca-Cola’s drink, in… More