Since its first broadcast on February 1, 1942, the Voice of America radio service (VOA) has aired countless hours of programming in dozens of languages to what is currently an estimated global audience of over 100 million people. Although the history of the VOA name is storied and long, VOA’s efforts to protect that name are of a more recent vintage. VOA didn’t apply to register its name as a federal trademark until 2005, and didn’t get around to registering an internet domain name until after sites such as voiceofamerica.com… More
The plaintiff in Avalos v. IAC/Interactive Corp. called it “one of the biggest conspiracies ever executed on the internet” — the unauthorized use of images of adult film stars in fake online dating profiles. But in an opinion issued October 30, 2014, Judge Jesse Furman of the Southern District of New York held that trademark law was not the right way to go about solving this problem. The complaint was dismissed in its entirety.
The Romance Fraud Scam
On October 28, 2014, Judge Paul Grewal of the Northern District of California ruled that a political advocacy website’s confusing use of the mark CHOOSE ENERGY could stay up . . . but perhaps only until election day.
The plaintiff, Choose Energy, Inc., operates an online energy marketplace at chooseenergy.com, through which individuals and businesses in several states can shop for an energy supplier. Shortly before October 10, 2014, Choose Energy discovered that the website chooseenergy.org had been acquired by the American Petroleum Institute (“API”). API began using the… More
For those few of you who don’t know already, Yelp! (“Yelp”) is a wildly popular website where people can share their reviews, opinions, experiences, and ratings of businesses across the country. This service is invaluable when investigating new restaurants, dog walkers, dry cleaners, etc. However, it is important to take the reviews with a grain of salt because, no matter how great a store is, there will always be a few disgruntled customers, and, reportedly, it is becoming more and more common for competitors to post fake negative… More
Brewers, distillers, and vintners are no strangers to themed seasonal offerings, so it’s not surprising that Halloween brings out some decidedly decrepit monikers. From PUMPKINHEAD (think reaping) to NOSFERATU, WITCH’S WIT to BRUJERIA, purveyors of alcohol capitalize on the creepy and market the macabre. Every once in a while, of course, great minds think alike, and so it is we were blessed with not one, but two HALLOWINE brand wines.
The Terrifying Trademark Opposition
Halloween is a good time to think about how you want to die. Do you want to leave the world peacefully? Or do you want to go down trash talking, making sure that your enemies know exactly what you think about them, and that everyone else knows what terrible people these enemies were?
Take, for example, this 1908 bequest of Garvey White, as recounted by Judge John Marshall Gest of the Philadelphia Orphans Court. White directed:
“That before anything else is done fifty cents be paid to my son-in-law to… More
Last Friday, the 11th Circuit Court of Appeals vacated and remanded the Northern District of Georgia’s 350-page fair use analysis of the electronic reserves practices at Georgia State University (“GSU”). Although this reversal is technically a win for the plaintiff publishers, the 11th Circuit left the most important parts of the lower court’s analysis intact, and essentially affirmed the bulk of its reasoning with respect to the first and fourth fair use factors. We have previously written at length about GSU’s electronic reserves, the District Court’s opinion, and… More
As autumn sets in and Halloween approaches, my mind turns to jack-o-lanterns, skeletons, and phantoms. Phantom marks, that is. Equally incorporeal though perhaps somewhat less frightening than their ghostly namesakes, phantom marks are registered trademarks that contain a “phantom,” or changeable, element. A well-known phantom registration was _ _ _ _ _ _ FOR DUMMIES for various self-help books, where the dotted line represented different descriptive terms that vary according to the subject matter of the book. A hypothetical example of a phantom mark is… More
Close on the heels of the settlement between Marvel Comics and Jack Kirby’s heirs, which ended their dispute over copyright in a number of iconic comic book characters, the heirs to one of Superman’s co-creators, artist Joseph Shuster, lost out on the chance of a Supreme Court hearing in their effort to wrest copyright in the Man of Steel away from DC Comics. Like Kirby’s heirs, Shuster’s heirs had attempted to invoke 17 U.S.C. § 304(c) by sending notices to DC Comics in 2003, purporting to terminate the… More
Search engine optimization is a vital issue for brand owners. When a potential customer searches online for Company A, a well-known brand, Company A naturally wants its own website to be as high in the search results as possible and, ideally, at the top of the list.
But Company A is not alone. Its competitor, Company B, wants to show up in the search results as well. In fact, many a Company B, by purchasing Company A’s name as a “keyword” from a search engine (an “AdWord” as offered by… More
As regular readers of this blog will know, comic book superheroes frequently find themselves at the center of legal disputes over copyright in fictional characters. In many cases, both sides agree that the characters in question are sufficiently delineated to merit copyright protection, but disagree over which party owns the copyright (and the lucrative royalty stream from sequels, movies, etc.). The answer is often complicated by the historical structure of the comic book publishing industry, in which artists and writers frequently collaborated,… More
On September 26, 2014, the District of Massachusetts shot down a plan to develop a “textbook dictionary.” James Richards, inspired in part by the Autobiography of Malcolm X, developed a project to convert the dictionary from a reference book into something that looked more like a textbook. Richards felt that this format would be more conducive to helping students and adults improve their reading and listening comprehension skills.
October is Pro Bono Month in many states, including Massachusetts, New York, Michigan, New Hampshire, Maine, Rhode Island, Indiana, Tennessee, and Alabama. The ABA has created an annual weeklong National Pro Bono Celebration, which this year is October 19-25. Recognizing the countless lawyers who devote their time and efforts to representing people of limited means, and urging all lawyers to do more, these pronouncements remind us that every attorney has an ethical responsibility to make sure that our system of justice is open to all persons, regardless of income. In… More
The National Advertising Division is holding its annual conference this week in New York, and Foley Hoag is in attendance for what many consider to be the leading conference of its kind. Day One saw an impressive line-up of panelists and speakers, beginning with an address by Federal Trade Commission Chairwoman Edith Ramirez, who outlined areas of particular focus over the coming year: weight loss claims, cognitive benefit claims, and celebrity-hyped claims, among others.
The speakers have addressed a number of hot topics that will likely dominate the false advertising landscape… More
Last week, Judge Alvin Hellerstein of the Southern District of New York issued his opinion Fox News v. TVEyes. Fox News claimed that TVEyes’ media monitoring service was copyright infringement. TVEyes argued that it was fair use. Here is our summary version of the case:
What is TVEyes?
TVEyes is a media-monitoring service that records content from over 1,400 TV and radio news outlets, and uses speech-to-text technology to create a searchable database of transcripts of that content. TVEyes subscribers include corporations, the U.S. military, the media, the White House… More