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San Francisco California Intellectual Property Law Blog

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Copyright, the First Amendment and the right of publicity

Robert Barbera, who photographs celebrities, has sued pop singer Ariana Grande because she uploaded photographs of herself to Instagram that he had taken and posted online. What could be wrong with posting pictures of yourself, even if someone else created them?

After all, as we have written about extensively in this space, the right of publicity protects a person’s right to control and benefit from his or her own persona in commercial use, including name, image, signature, likeness, voice and other unique aspects of personality and presence. These issues often involve the misappropriation of the personas of widely recognizable celebrities.

Chicago Cubs victorious again! This time, before the TTAB.

After a 108-year lull, the Chicago Cubs won the World Series in 2016. No one who watched the games could argue against the enthusiasm and loyalty of Cubs fans. You might even be able to call some of them obsessed or even -- obnoxious.

Right on time for a new baseball season, the Cubs are again in the news. This time, the Cubs have won before the Trademark Trial and Appeal Board, known as the TTAB and part of the U.S. Patent and Trademark Office. In Chicago Cubs Baseball Club, LLC, v. Ronald Mark Huber, the club successfully opposed Huber's application to register "Cubnoxious" as a trademark.

Striking or substantial similarity in lace patterns

On April 24, in a copyright infringement case involving floral lace fabric patterns, the U.S. Court of Appeals for the Ninth Circuit explained what federal copyright law requires when comparing protected and allegedly copied works.  

In Malibu Textiles, Inc., v. Label Lane International, Inc., the court stated that to plead an adequate copyright infringement claim from which a reasonable jury could find for the plaintiff, Malibu must have alleged sufficient facts to show that it owns the copyright to the two lace patterns at issue and that the defendants "copied protected aspects of [the laces'] expression."

Commercial use of Steve McQueen’s name in dispute again

This time, the dispute is over cardigan sweaters. Last time, it was over luxury cars. In both cases, Chadwick McQueen, the son of deceased actor Steve McQueen, objected to companies using his father’s name to sell their products.

In August 2018, we shared information about the McQueen family’s lawsuit against Ferrari over the use of Steve McQueen’s name without permission to refer to a limited-edition car. Claims in that suit included violation of the right of publicity, trademark infringement and others.

Mr. and Mrs. Bieber file for trademarks based on their names

In September, pop star Justin Bieber and model Hailey Baldwin tied the knot. Now, Hailey Bieber is taking serious steps to preserve rights to use her new name for business purposes. TMZ reported that she has filed a trademark application to register "Bieber Beauty" for use in marketing a line of cosmetics and beauty products. In October, she reportedly also filed an application to register "Hailey Bieber" to use as a clothing-line brand.

Mrs. Bieber was following in the footsteps of her husband who last year filed for three trademarks based on his middle name -- "Drew," "House of Drew" and "La Maison Drew" -- for use in branding his clothing and fashion lines.

Counterfeiting: Trademark infringement on steroids

We often talk in this space about trademark infringement. Trademarks are protected indicators of branding that identify the sources of affiliated products.

Perhaps the most extreme kind of trademark infringement is counterfeiting. On March 19, the U.S. District Court for the Central District of California released an opinion in which the judge decided that no jury could conclude that the allegation of counterfeiting was true.

Happy-little-tree painter's right of publicity at issue

We recently told readers about a lawsuit filed by Car-Freshner Corporation -- the owner of the trademark for the iconic tree-shaped car air fresheners -- against Bob Ross Inc., called BRI, and its merchandiser for selling air fresheners for vehicles also in the shape of trees. Bob Ross was the famous landscape painter who taught viewers how to paint on television. He was known for telling viewers to mask mistakes using "happy little trees."

Car-Freshner alleged that BRI's air fresheners infringed Car-Freshner's trademark on its tree-shaped fresheners.

NCAA has multiple trademarks associated with Final Four tourney

Trademarks are not just important for commercial success. It is also vital for some nonprofit organizations to protect their branding in furtherance of their charitable missions.

It may surprise some readers to learn that the National Collegiate Athletic Association, known as the NCAA, is a nonprofit organization. Despite its high-profile tournaments and extensive merchandising, 96 percent of its "expenses" advance its cause of benefitting student athletes and collegiate membership, according to the NCAA website.

To be a trade secret, its owner must take steps to protect it

At Lawrence G. Townsend, Intellectual Property Lawyer, in San Francisco, we represent a variety of clients in trade secret matters. We regularly talk about trade secret issues in this space and today we take note of a recent Illinois case that provides an interesting analysis of the requirement that to be a trade secret, the company or entrepreneur who owns it must take concrete steps to protect it.

Or -- put simply -- for a secret to be a secret, it must be kept secret.

Artificial intelligence generates real copyright issues

When lawmakers passed the first federal copyright law in 1790 to protect rights in maps, charts and books, they could hardly have conceived of an issue under consideration today: Whether the creations generated by computers using artificial intelligence should enjoy copyright protection.

While copyright law has been expanded and amended multiple times since 1790, artificial intelligence, known as AI, presents new questions not explicitly addressed in federal statutes.

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