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Johnson Family Benefit Golf Outing

Tuesday, 14 August, 2012 17:44 Written by danieldavidson 0 Comments
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By Daniel Davidson

To any readers of the Brevard County and surrounding areas, on August 25, 2012, a benefit golf outing is being held to support the Johnson Family.  The event will take place at the Major’s Golf Club at Bayside Lakes in Palm Bay, Florida.  Zies Widerman & Malek will be out there showing there support, and you should to.  For more information about the Johnson Family, the tragedy they have endured and the passion this family now lives with, you can visit here.  To sign up for the golf outing which will benefit the family, you can do so here.  It even includes corporate sponsorship opportunities.  I encourage all you golf enthusiasts to make your way to the links to support this deserving family.

Trademark Infringement – Jack Daniel’s Cease and Desist Letter

Tuesday, 24 July, 2012 22:31 Written by danieldavidson 0 Comments
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By Daniel Davidson

The goodwill of a company is its most valuable asset, and when you think of goodwill you think of trademarks.  Well, maybe not, but McCarthy, the guru of trademarks, would.  In a recent letter authored by a senior trademark counsel for Jack Daniel’s, the strength and goodwill of the Jack Daniel’s marks were exactly what she was attempting to preserve.

Dubbed the “Nicest Legal Letter Ever,” the cease and desist letter sent to Patrick Wensink ever so nicely asked Mr. Wensink to remove the alleged infringing cover of his newly released book, Broken Piano for President.  The cover is very old no. 7ish.

It seems as though both parties are going to benefit from this overly kind assertion of trademark rights.  The new author is getting quite the free PR from this letter going viral and Jack Daniel’s is being held ahigh for their gracious tactics.  Trademark attorneys could even take a note on how to go about trademark policing.  Albeit, the letter does make for a good read, and an unrealistic example of what you would receive if you were trademark infringing perp.

Gotye Parody – Is This Infringement?

Tuesday, 17 July, 2012 21:27 Written by danieldavidson 1 Comment
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By Daniel Davidson

It is very likely that you have an opinion regarding the U.S. Supreme Court’s recent ruling on the POTUS’ health care law.  It is very likely that you have expressed your opinion in some way, be it through a Facebook post, tweet, or talking over the water cooler.  For one conservative, her opinion of Judge Roberts’ alleged political flip to vote in favor of the health care bill is being voiced through parody.

The conservative Media Research Center intern, Kathleen Burch, has made her dissatisfaction of the Supreme Court’s, blaming it on Roberts, decision known through her parody of Gotye’s “Somebody That I Used to Know.”

Now, let’s play a game of hypotheticals.  Gotye, or Wouter De Backerh, is unpleased that a conservative based group is using his creative work to convey their message.  He contacts his lawyer and asks what he can do to have the parody removed.  We can now assume that he contacts an intellectual property attorney whose ears should ring when he hears Gotye say “parody.”

In this instance, the copyrighted work being parodied, “Somebody That I Used to Know,” is not protected by the Copyright Law.  This is so thanks to Fair Use under Section 107 of the Copyright Act and Campbell v. Acuff-Rose Music Inc. (the case involving 2 Live Crew remaking Roy Orbison’s “Pretty Woman”).  In determining whether a use of a song, or copyrighted work, is in fact a parody, the court would weigh the following:

  1. the purpose of the parody (often expressive criticism) and whether the work is “transformative” (adds something new to the copyrighted song);
  2. the nature of the parody (expression and creativity);
  3. the amount of the copyrighted song found in the parody; and
  4. the effect the parody has on the market value of the original song.

Should the parody fall within these safe havens, a claim of copyright infringement would fail.

It is very possible that Kathleen Burch’s parody would withstand any copyright infringement claim.  So, for now, enjoy the politically motivated parody.  Cheers.

OH CANADA AND THE COPYRIGHT LAW

Friday, 13 July, 2012 17:07 Written by danieldavidson 0 Comments
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By Daniel Davidson

The Supreme Court of “Oh Canada” has begun its reform of copyright law in the country.  On Thursday, the justices dropped their decisions concerning copyright royalties for song and video game downloads from the internet.  Additionally, they decided on whether or not streaming music online is subject to compensation for the copyright holder.

The big decision came when the Court determined that video game distributors did not have to pay royalties for the music included in the video game.  The Society of Composers, Authors and Music Publishers of Canada positioned that the distributors selling these video games online needed to be paying their dues.  This, even after the music artists were receiving compensation from the video game developers.  The Court reasoned that a download and a stream differ saying, “Although a download and stream are both ‘transmissions’ in technical terms … they are not both ‘communications’ for the purposes of the Copyright Act. This is clear from the (Copyright) board’s definition of a stream as a transmission of data that allows the user to listen or view the content at the time of transmission and that is not meant to be reproduced.”

If the Court didn’t rule this way, the distributors of the online video games would have to pay a royalty, for the music within the video game, each time the game was downloaded.

Another decision by the same Court was that royalties do not need to be paid by music retailers for the brief previews of music they provide.  There previews can be found at online retailers like iTunes and Amazon.com.  The Court reasons that, “Short, low-quality previews do not compete with, or adversely affect, the downloading of the works themselves. Instead, their effect is to increase the sale and dissemination of copyrighted musical works.”

Is this a step in the right direction for the Canadian Copyright Laws?  It is obviously in the eye of the beholder, i.e. consumer, distributor, retailer, or artist, whether this Court made the right decision.  Cheers.

TO TRADEMARK A CATCHPHRASE

Tuesday, 26 June, 2012 18:00 Written by danieldavidson 0 Comments
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By Daniel Davidson

Catchphrases have become the new gold rush.  Proof in point: when the “one percent” marched on Wall Street, everyone rushed to trademark “Occupy Wall Street.”  When seal team 6 assassinated Osama Bin Laden, Disney rushed to pan up the trademark “Seal Team 6,” and if Disney is doing it, it is to make money.  Recently settled, David Hester of the reality t.v. show Storage Wars and rapper Trey Songz went to the court to see who in fact owned the rights to the catchphrase “YUUUP.”

So what is a catchphrase?  Dictionary.com defines the word as, “a phrase, as a slogan, that comes to be widely and repeatedly used, often with little of the original meaning remaining.”  If you have a group of friends, I am sure a catchphrase has developed between you all.  Now, why would a catchphrase be important to trademark?  Can it be trademarked?

Catchphrases can be trademarked as long as it identifies and distinguishes the goods or services, offered by the owner of the catchphrase, from those of others, and if it indicates the source of the goods or services.  Simply putting the catchphrase on a shirt would not fulfill this requirement though, and would most likely be refused registration due to being merely ornamental.  In order to fulfill the requirements of a trademark or service mark, the catchphrase would need to be displayed on a tag, display associated with the goods or services, etc.  Questions of proper uses of catchphrases as trademarks or services marks would be best answered by a trademark attorney.

Have catchphrases been trademarked before?  Of course.  Below are some catchphrases that you may recognize.

“Let’s Get Ready To Rumble” registered in 1995.

“That’s Hot” was registered by Paris Hilton in 2007.

“Thug Life” was registered by Amaru Entertainment, Inc. (Tupac) in 2011 but was filed for in 1996.

“LIFE IS LIKE… A BOX OF CHOCOLATES” was registered by Paramount Pictures in 2012.

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