October 30, 2009
October 28, 2009
SNCF vs. Danish Food Stall Lady
by Philip Zies
Our latest IP Bully Award nomination comes from across the pond.
SNCF, the French train company that runs the famous train line known as the Orient-Express, forced a Danish woman who sold spicy food from a stall at music festivals under the trademark ORIENTEXPRESSEN to change the name of her business. The Danish Supreme Court affirmed the lower tribunal’s decision that the “catering services” offered from the food stall were too similar in kind to the “hotel services” offered by the train company. She sure got railroaded. (source)
If you have any IP Bully Award nominations for us to review, you can write them in the comments to this or any other post. Alternatively, you can email us at tacticalip@gmail.com.
October 25, 2009
Classic Rewind: Air-O-Matic’s claim of trademark infringement doesn’t pass the smell test
This story was originally posted back in February of 2009 on The Legal Satyricon.
iPhone application developer, InfoMedia, Inc., filed a complaint last week, seeking a declaratory judgment from a U.S. District Court in Colorado. The pleading seeks to end a dispute that has been bubbling up between InfoMedia and one of its competitors, Air-O-Matic (AOM). What are these two companies fighting over? Dominance in the cutthroat realm of iPhone flatulence apps. (source)
Late in 2008, Apple decided to relax its draconian content censorship rules which govern the kinds of applications that could be offered for sale in its iPhone application store, allowing novelty applications that simulate farting noises. The app store quickly filled up with new entries into this niche market. Currently, a search for the term "fart" in the app store yields nearly 150 results, including such classics as "iToot", "Fart Box", and "Fart Piano" – to name a few.
October 23, 2009
DMCA Takedown Notices Must Consider Fair Use
The Digital Millennium Copyright Act (DMCA) was signed into law by President Clinton in 1998 and is an implementation of two World Intellectual Property Organization (WIPO) treaties. To make it much simpler than it really is, the DMCA is directed to provide protection to copyright owners that find their copyrighted materials improperly posted on the Internet. Again, that is a big oversimplification of the provisions of the DMCA, but it is enough of a background for this story. The full text of the DMCA can be found here.
On its face, the statute provides an important enforcement mechanism for copyright owners who can’t necessarily afford to hire a legal team. As it works now, copyright protection is created without any real effort on the part of the author, and as a result, it is incredibly easy for someone to have enforceable copyrights. With the current state of technology, it is becoming equally easy to infringe on them, so lawmakers wanted to make them just as easy to enforce. However, as with nearly every other well-intentioned legislative initiative, the DMCA’s power to do good has been twisted by the hands of the wicked into a weapon for evil.
Update on “IP Bully of the Month” Award Nominee
by Philip Zies
Last week, TacticalIP.com nominated Hansen Beverage Co., the maker of "Monster" energy drinks, for the "IP Bully of the Month" award for demanding that Vermont beer maker Rock Art Brewery, brewer of "Vermonster" beer, rename its fermented non-energy beverage. Well, as it turns out, maybe Hansen isn’t such a bully after all. It seems that Hansen CEO, Rodney Stacks, and Rock Art founder, Matt Nadeu, were able to work out their differences by talking to each other directly. Rock Art has agreed to avoid adding high energy drinks to its line and Hansen has agreed to back down on its renaming demands (source). Nice compromise, boys!
October 19, 2009
Latest “IP Bully” Award Nominations
October 15, 2009
An overview of U.S. patent protection
Below is the first in our series of "IP Overview" documents, which are designed to provide a capsule description of the various flavors of intellectual property protection. If you are new to IP, and you want to know more, we’re hoping that these posts will provide all of the information that you might need to get started. Enjoy, and sound off in the comments if there’s a question you have about this subject that was not answered here.
A patent is an exclusive right granted to an inventor by the United States government to exclude others from making, using, selling, or offering to sell the invention that is the subject matter of the patent. These rights are provided to the inventor in exchange for a full disclosure of the invention, which is published as public record for others in the field to learn from and hopefully improve upon. This exchange of rights for information aims at promoting the progress of science by trying to remove the natural tendency to keep innovations a secret for competitive advantage.
The protection in a patent lies in the claims. If one were to compare a patent to real estate, the claims of a patent are comparable to the property description of the deed. In other words, the claims define the scope and breadth of the patent. In the ideal scenario, the patent claims will carve out protection that is valuable to the inventor, i.e., define the invention in such a way that it is difficult to design around the protection granted in the patent.
Trade Secrets in Copyright Registrations for Computer Programs
by Philip Zies
Copyright Registrations of computer programs without trade secret information require a completed application form, a filing fee, and a deposit of identifying portions of the program (the first 25 pages and last 25 pages of the source code). When the computer program contains trade secret information, however, a different procedure is followed.
First, include a cover letter stating that the submission contains trade secrets. The cover letter can attach the page of the source code containing the copyright notice, if any.
Second, for a completely new computer program or for a revised computer program where the revisions are in the first 25 pages and last 25 pages of the source code, the deposit of identifying portions of the program is either: the first 25 pages and last 25 pages of the source code with portions containing trade secrets redacted; or the first 10 pages and last 10 pages of the source code with no portions redacted; or the first 25 pages and last 25 pages of object code plus any 10 or more consecutive pages of source code with no portions redacted; or, for programs of 50 pages of source code or less, the entire source code with portions containing trade secrets redacted. For revised versions of computer programs where the revisions are not in the first 25 pages and last 25 pages of source code, the deposit of identifying portions of the program is either: 20 pages of source code containing revisions with no portions redacted; or any 50 pages of source code containing revisions with portions containing trade secrets redacted. If depositing redacted portions of the source code, the redacted portions must be proportionately less than the visible portions of the original code and the visible portions must represent an appreciable amount of the original code.
While trade secret protection is a matter of state law, following these procedures should enable an author to seek federal registration of a computer program containing trade secrets, without waiving the trade secrets contained therein. You can view the US Copyright Office Circular on Copyright Registration for Computer Programs by clicking here.
This article has also been posted on JD Supra.
October 14, 2009
Announcing the “IP Bully of the Month” Award
by Philip Zies
Due to the overwhelming popularity of our "IP Bully of the Week" award, or perhaps because of the prevalence of perceived IP Bullies, TacticalIP.com is rebranding its award as our "IP Bully of the Month" award and offers the following candidates for consideration, in addition to the award winner announced October 7, 2009:
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Big Boy Restaurants International, LLC — for demanding that a 14 foot big-boy-on-a-pole be removed from a memorial in Charlston, South Carolina. The memorial was created in honor of the original 1947 Shoney’s Restaurant, belonging to that chain’s founder, Alex Schoenbaum. At one point, Big Boy and Shoney’s were merged, but Shoney’s later split off again. (source)
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World Wrestling Entertainment, Inc. — for demanding that the The Wine School of Philadelphia stop using the name "Sommelier Smackdown" for the food and wine pairing competitions that it has held since 2007. (source)
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Hansen Beverage Co. (maker of Monster energy drinks) — for demanding that Rock Art Brewery, in Morrisville, Vermont, rename its beer, which is now known as "The Vermonster". (source)
Stay tuned for more nominees, and we may actually pick a winner at some point. Sound off in the comments with your favorite, or if you’ve got a nominee of your own.
October 13, 2009
Immoral or Scandalous Matter?
One of the "peculiarities" of U.S. trademark law is that the government has a stick up its collective ass about recognizing trademarks that may be suggestive of potty humor. Section 2 of the Lanham Act (the federal statute that creates trademark rights) provides:
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it –
- (a) Consists of or comprises immoral, deceptive, or scandalous matter . . . .
15 U.S.C. § 1052 (2008).
