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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.

Will USPTO grant a new trademark that includes quotation marks?

Off-White is a popular Italian company affiliated with designer Virgil Abloh, creator of the line MARKERAD in collaboration with IKEA. MARKERAD items became available for sale at IKEA on Nov. 1. Some of the branded products at IKEA contain Abloh's signature use of quotation marks such as "TEMPORARY" on a wall clock and "WET GRASS" on a green doormat.

The Fashion Law reports that in May, Off-White filed an application for a trademark for "Product Bag" - including both the phrase and the quotation marks around them - for use on clothing. The Fashion Law speculates whether Off-White will try to expand rights to marks containing quotation marks around other words should this initial application be successful.

When must a trademark infringer disgorge its profits?

The U.S. Supreme Court released its January 2020 oral argument calendar and it schedules argument in an important trademark infringement case. On Jan. 14, the fourth case heard in the new year will be Romag Fasteners v. Fossil Inc., requiring the justices to decide whether the trademark owner must show the infringement was willful under the Lanham Act to be awarded the infringer's profits.

Aggressive trademark enforcement is a complex business decision

The ongoing story of a Utah-based online retailer and its efforts to preserve its trademark interests in the word “backcountry” provides a fascinating look into the careful consideration a business must conduct of potential outcomes of such a campaign. While we support vigorous protection of intellectual property, thought must be given to the potential pros and cons of each step taken in this effort.

ASCAP sues 19 bars and restaurants for copyright infringement

On Oct. 29, the American Society of Composers, Authors and Publishers, known as ASCAP, announced it had filed 19 lawsuits for copyright infringement lawsuits. According to its press release, the suits target bars and restaurants with music venues that allegedly failed to obtain proper licenses from ASCAP for performances and other use of copyrighted works.

ASCAP is a nonprofit organization with 725,000 member composers, songwriters and music publishers. ASCAP handles licensing of members’ copyrighted works – numbering more than 11.5 million works of music - and in turn pays members royalties. ASCAP sells a collective license granting permission to use all these works without limit. Licenses are available not only to bars and restaurants, but also to radio, television, internet, mobile phone services and others.

Epic Games and Fortnite are in the intellectual property news again

On Oct. 25, Epic Games sued a former employer for misappropriating a trade secret and breaching a nondisclosure agreement when he allegedly publicized information about a new season of the game before its Oct. 15 release, according to WRAL TechWire.

The defendant’s actions allegedly cut into Epic’s profits – which have reportedly been substantial for the Fortnite enterprise – and deflated public anticipation for the release, lessening “excitement and enthusiasm” of potential purchasers and “spoiling the enjoyment of many of Fortnite’s players and fans,” reported TechWire, quoting the complaint.

Recipe theft? Beer giant accuses another of stealing trade secrets

In March, MillerCoors sued Anheuser-Busch after AB’s prominent Bud Lite Super Bowl ad and billboard campaign highlighting that MC uses corn syrup in the brewing process for Miller Lite and Coors Light. MC accused AB of misleading the public into thinking MC’s beer brands include consumable corn syrup, when the ingredient is instead a brewing agent that does not make it into the final product, according to the St. Louis Post-Dispatch at the time.

Part of the alleged misrepresentation is that the ads imply that MC uses high fructose corn syrup in addition to regular corn syrup.

Marvel, Disney sued for copyright infringement

The last decade has been kind to Marvel Studios and their parent company, Disney. Yet, long before this recent success, the Marvel brand was best known for its comics and television cartoons based on those characters in the 1980s and 1990s.

One of those shows was X-Men: The Animated series. This series brought the franchise's characters like Wolverine, Cyclops, and Magneto to life. The show is once again relevant as Disney announced it would be a launch title for its upcoming streaming service.

Temporary restraining order issued for return of stolen domain name

Nowadays, your URL is as big a part of your business branding as are company and product names. Domain name protection is a fast-growing area of intellectual property law as the threats to domain names - which trademark often protects - are real and aggressive. A recent federal case in Florida illustrates one legal remedy that can help protect a victim of domain name cybertheft.

An internet-based auto parts export company successfully went to court to request a temporary restraining order, or TRO, that the defendant transfer the plaintiff's stolen domain name back to the correct registry account from a Russian registrar that the thief had used, according to Domain Name Wire.

Guitar companies fly into dispute over instrument shapes

Some of the biggest names in rock 'n' roll history have played Gibson's distinctive Flying V guitar, including Jimi Hendrix, Billy Gibbons of ZZ Top, Pete Townshend of the Who, Johnny Winter, Paul Stanley of Kiss and many more. The electric instrument looks just like its name: its narrow, V-shaped body was considered futuristic when it was initially released in 1958.

Earlier this year, Gibson filed a trademark infringement lawsuit against the parent company of Dean Guitars and Luna Guitars. Gibson alleges that Armadillo Enterprises, Dean and Luna are also engaged in trademark counterfeiting, unfair competition and trademark dilution.

Radio station sued for $1.5 B for failing to pay to play songs

Making it as a songwriter is no easy task. Once a song becomes famous, artists rely on earnings from continued use of the songs, often on the radio. Radio stations who fail to pay artists for the use of their songs can face legal ramifications.

A current lawsuit provides an example.

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