More Than 40 Years
Publicity Law
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.
Packaging colors can be inherently distinctive, says Federal Circuit
On April 8, the U.S. Court of Appeals for the Federal Circuit issued a trademark decision holding that a multi-color pattern on product packaging can be inherently distinctive and that this inherent distinctiveness does not require a “peripheral shape or border”...
Supreme Court to say when terms are generic and cannot be protected as trademarks
The Lanham Act (federal trademark law) does not allow generic terms to be registered as trademarks, but it does allow protection for words that are considered merely “descriptive.” Unfortunately, it’s difficult to tell where the line is. Can you take a generic word...
Can you trademark a word with a cultural meaning? Be cautious.
If you’re opening a Mexican restaurant, you don’t call it “Jenny’s.” You choose a name that carries cultural cachet and implies what you’re selling. When a Phoenix-area restaurant opened selling Asian-Mexican fusion cuisine, it hoped to capture both cultures with its...
Led Zeppelin wins “Stairway to Heaven” case at 9th Circuit
Was the classic opening riff to Led Zeppelin’s 1971 monster hit “Stairway to Heaven” actually ripped off from the 1968 song “Taurus” by the band Spirit? That question was before a jury in 2016 and was recently on appeal before the federal 9th Circuit Court of Appeals....
Should e-commerce platforms be liable for third-party counterfeits?
Earlier this year, President Trump signed an executive order calling for crackdown on counterfeit or pirated goods. Specifically, it targeted U.S. companies that import, or who facilitate the import of, those goods. Now, a bipartisan bill has passed the House of...
Has “Choose Your Own Adventure” become a generic term?
The publishing company Chooseco owns the “Choose Your Own Adventure” trademark once owned by Bantam Books, and it has been fighting hard to protect its rights. Over the years, it has filed suit against a number of publishers and other companies that used the phrase to...
Trademark: What is “aesthetic functionality” and should it matter?
Aesthetic functionality is a confusing, controversial concept in trademark law, which the U.S. Court of Appeals for the 9th Circuit will soon reconsider. A 1980 9th Circuit case called International Order of Job’s Daughters v. Lindeburg & Co. – that many do not...
SCOTUS protects “scandalous” trademarks in 2019
In a Supreme Court of the United States (SCOTUS) decision, the Court found a statutory bar to trademark protection was unconstitutional. The year 2020 promises to bring more in the realm of trademark law, and it will be reported here when it happens. Clothing...
Ninth Circuit looks at copyright dispute over “The Shape of Water”
Anyone who saw the Best Picture winner "The Shape of Water" is likely to agree that it is a haunting film that uses elaborately detailed, blue sets with unexpected, random shots of water in a variety of circumstances throughout to create a mesmerizing visual story....
Two cosmetics giants sparring over “LASH LOVE”
When you walk through a cosmetics store, the sheer number of brands and variations on packaging can be overwhelming. Translate that into the volume of intellectual property that brand owners must protect in the marketplace and there are certainly going to be...
