A History Of Massachusetts Anti-SLAPP Legislation As A Vehicle For Protecting First Amendment Petitioning Activity From Retaliatory Defamation Claims

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 opportunity… More

Do Municipal Seals Enjoy Any Trademark Protection? Recent Cases Take Differing Views

Renna

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

“Oh right. . . THAT thing!” Designated Agent Required Prior To DMCA Copyright Infringement Safe Harbor

Capture3The 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

When “Slacker” Was A Dirty Word: Defamation And Draft Dodging During World War I

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

Supreme Court Fires Shot Across The Bow Of NSA Metadata Collection

photo-3 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 government surveillance… More

Aereo’s Internet TV Service Not Saved From Copyright Infringement Liability By Technical Differences, Says Supreme Court

Aereo 1Television 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

Amazon’s Inability To Register Domain Name .Amazon Is An Interesting Case Study For New gTLDs

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

Clever Or Contemptuous? The “Great Injunction Cigarros” Trademark

FritzIn 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

NYC Restaurant Scene Extends to Newark In Concurrent Use Trademark Case

BNB1The 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.

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Divided TTAB Panel Once Again Finds REDSKINS Trademarks Disparaging

redskins-logoIn 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

Supreme Court Paves The Way For Lanham Act Claims Against FDA-Regulated Competitors

pomThe 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

“National Association For The Abortion of Colored People” Trademark Case Heads To Fourth Circuit

naacpWe previously reported on the dispute between the National Association for the Advancement of Colored People (NAACP) and the conservative activist Ryan Bomberger. Bomberger had repeatedly referred to the NAACP in online articles not by its actual name, but by the name “National Association for the Abortion of Colored People.” Bomberger characterized this alternative moniker as a parodic critique of what he perceived to be the NAACP’s pro-choice politics.  The NAACP, on the other hand, saw Bomberger’s articles as likely to cause confusion among consumers. With the parties at an… More

Is .XYZ The Next .COM? You Might Be Surprised.

ICANNMost of our readers are now familiar with ICANN’s new generic top-level domain (gTLD) program, which saw over 1,900 applications from various entities seeking to operate new top-level domain name registries.  Most of these applications were for true gTLDs such as .web, .law, .book, and .family.  But about a third of the applications, referred to as “.Brand TLDs,” consisted of trademarks (many famous and well-known marks), including .canon, .fiat, .youtube, and .pfizer.  Each applicant paid several hundred thousand dollars per application (including ICANN’s $185,000 application fee!) and, if awarded the… More

Second Circuit Hints At Possible Google Books Outcome In Finding HathiTrust Digital Library Project Protected As Fair Use

HathiEarlier this week, the Second Circuit issued its ruling in the HathiTrust case, a potential precursor to the long-awaited resolution of the more prominent, and related, Google Books case.  The decision upholds the district court’s finding that the non-profit defendant is protected by the fair use doctrine, but leaves room for a potentially different outcome in the Google Books matter.  As we have reported, the Google Books project aims to scan and digitize all the world’s books and make them full-text searchable.  As part of the “Library Project” arm of… More

It Doesn’t Have To Be the Magna Carta! Alien Yogurt And The Writing Requirement For Copyright Transfers

StuffSunday (June 15) marks the 799th birthday of the Magna Carta (sometimes spelled Magna Charta), which famously limited the powers of the English monarch vis-à-vis his feudal barons.  Although often credited as a singular influence on the U.S. Constitution, and therefore on American law, it also gave rise to one of our favorite pre-internet copyright memes, courtesy of Ninth Circuit Judge Alex Kozinksi in Effects Associates v. Cohen.

The Stuff

In 1984, Hollywood director Larry Cohen was filming The Stuff, a low-budget horror movie about the invasion of earth… More