March 10, 2010
Lindsay Lohan Publicly Admits Milk Addiction
Earlier this week, Lindsay Lohan filed a $100 million suit against online financial services company, E-Trade. In her complain (you can read it here), Ms. Lohan accuses E-Trade of appropriating her likeness in its Super Bowl ad, wherein the spokesbaby’s girlfriend accuses him of not calling her because he was with “that milkaholic, Lindsay.”
March 4, 2010
An Open Letter to Television Writers and Producers re:Civilian Consultants
Dear Television Writers and Producers:
Let me start off by saying that I am a huge fan of television and that I particularly enjoy the pervasive one-hour episodic drama genre. Cop and lawyer shows are my absolute favorite, despite the fact that they often present embellishments and minor procedural inaccuracies. One of the only things that a legal education is guaranteed to do is suck all of the enjoyment out of watching courtroom shows that play it fast and loose with the formalities of litigation, but I’ve learned to ignore most of the discomfort that comes from watching a make-believe prosecutor present character evidence in his case-in-chief. I hardly cringe anymore when I hear scripted dialog about “robbing” a house or “murdering” an animal. I am writing today, however, to tell you of a related faux pas that I haven’t been able to ignore.
“Are you saying that our show is unoriginal?”
As I’m sure you are aware, a subclass of the traditional police show has been popping up with greater frequency in recent years. The basic premise for these shows is this: A civilian “consultant” is brought in by a law enforcement agency, based on some enhanced knowledge or skill possessed by said civilian, thereby magically improving the agency’s crime solving abilities. Amongst this subclass, I am a religious viewer of Psych, The Mentalist, Castle, White Collar, Fringe, and Bones (I can’t stand this one, to be honest, but it’s my wife’s favorite), to name a few. With varying degrees of success, each of these programs attempts to present a compelling dynamic between straight-laced cops and one or more outside-the-box thinkers, who presumably aren’t bound by the paradigm that you’re typical “G-man” occupies. It’s a classic odd couple arrangement – rambunctious corner cutter plays off of an endearing straight man. My issue lies with one particular outside-the-box solution that is floated again and again on these shows.
February 17, 2010
IOC Uses DMCA to Suppress Luge Accident Video
The opening day of the 2010 Winter Olympics was marked with tragedy when 21-year-old Georgian luger, Nodar Kumaritashvili, was involved in a fatal crash during a training run. The horrific event dampened the spirit of the international competition and colored the mood at the opening ceremonies later that night. As anyone would expect, the International Olympic Committee (IOC) sprung into action, responding to the accident with a multi-point plan:
January 21, 2010
Don’t confuse media whine pieces for *real* IP bully stories
If you’ve been reading this blog for any period of time, you know that we like to point out when intellectual property owners try to use their IP to stomp on the little guy. One should not confuse our material with that of whiny media types who try to paint IP owners in a negative light for using their rights correctly. Professor Randazza has posted about an excellent example of this kind of misinformed, crybaby reporting. In pointing out the inadequacy of one publication’s legal research, Marco manages to give us all a lesson in trademark registration basics.
January 20, 2010
Space Coast Business Magazine prints one of our articles
We put together a quick overview (800-words-or-less) about patents and copyrights for Space Coast Business Magazine, and they ran with it in their January issue. You can read the full text here
January 19, 2010
Removing “Confusion” with Trademarks
Trademarks are a huge part of everyone’s daily lives; yet the laws that dictate their use and abuse are not nearly as well known. A single trip to the grocery store may expose you to literally thousands of trademarks. There are the ones you expect to see (e.g., the word “Kellogg’s” on that box of cereal, or that jovial peanut wearing a top hat) and the ones you are hardly even aware of (e.g., the emblem on the front of the car that you parked next to in the lot, or that familiar swoosh on the sneakers of the woman behind you in the checkout line). Each of those words or symbols represents an important mechanism for lubricating the wheels of commerce, providing a shortcut for you (or your intended customer) to make informed purchase decisions. The economic advantage of trademarks lies in their ability to quickly convey, by association, a wealth of information about the quality, value, and reputation of a product, or its producer.
As an example, when someone goes shopping for clothing, they are able to quickly pick out which garments are desirable, and which ones are not, simply by looking at the tag or emblem stitched on the left breast. If you see a silhouette of a man riding on a horse and swinging a polo mallet, you immediately know something about the characteristics of that shirt, whether it’s from your own experience or from what you may have heard from other satisfied purchasers. You know a little something about the quality and whether it falls into your intended price range – all without having to spend the time, effort, and expense of buying one of each brand of shirt and conducting your own comparative analysis. You know, before even opening it, that when you take a sip from that can that has “Coca-Cola” printed on it, it will taste a certain way, and you likely made your purchase (or selected the one with “Pepsi” printed on it instead) based on that knowledge.
January 5, 2010
Paris Hilton continues her IP education… from the defendant’s chair
After getting the go-ahead from the Ninth Circuit earlier this year on her “That’s Hot!” trademark infringement case against Hallmark, hotel heiress Paris Hilton has apparently signed up (although unwillingly) for another intellectual property lesson. This time, she’s going to be studying design patents. Her professor, a footwear designer called Gwyneth Shoes, claims that its design patent has been infringed by Ms. Hilton’s kicks. (Source.)
If you look closely, you can see the heart.
Design patent protection is similar to copyright protection, in that the alleged infringer is in trouble if they’ve produced something that is substantially similar to the protected design. However, while the government simply gives out copyright registrations, upon request, design patents are only awarded after an examination is done and it has been determined that the proposed design is novel (i.e., no one else has previously designed a product like this).
Gwyneth’s design
The prize for successfully prosecuting a design patent application? Complete national monopoly for 14 years. Since copyright protection lasts for a minimum of 70 years, some people would argue that a design patent is hardly worth the effort and cost. The problem with that logic is that copyrights come with a whole boatload of limitations, leaving room for potential defendants to get away free. As a key example, fair use and independent creation are no defense to a charge of design patent infringement. Just ask Paris Hilton, who undoubtedly has just learned about this little wrinkle from her attorney.
December 15, 2009
Does Disney Own the Concept of a Castle?
It is a well known axiom of U.S. intellectual property law that there is no protection afforded to mere ideas. In order to employ the force and power of our legal system to enforce your intellectual property rights, you must have something more concrete than an idea. In patent law, for example, you must have reduced your invention to practice (although constructive reduction to practice can be used to satisfy the requirement). In trademark law, you must have actually used your mark in association with goods or services. In the realm of copyrights, an author must fix her expression in a tangible form before the government will recognize any exclusive rights.
The bottom line is that you can’t sue anyone for “stealing your idea” or “taking that movie plot you thought of.” This concept is hard for some to grasp, and every so often, a big player in the IP world may take advantage of this common misunderstanding. While perusing sites that sell graphic tees (one of my favorite forms of communication – e.g., here, here, or here), I came across an example of this that I think is worth sharing.
November 25, 2009
Patent Language: “The Present Invention” versus “An Embodiment of the Present Invention”
If you spend any time reading patent applications, two things will probably become apparent to you: 1) you probably need to find a hobby or five to take up more of your time; and 2) sometimes it may seem like patent applications are written in some kind of strange, overly complicated, almost alien language. Usually, there’s a perfectly good explanation for why one would use a more complicated phrase, in a patent application, to say what could be said in a word or two anywhere else. It generally has something to do with legal precedent that would impact the protection granted by the patent. In our first of what will be another series of subject-specific posts about why we use the words we use in drafting a patent application, Tactical IP takes a look at one of the oft-inserted patent language twists – “an embodiment of the present invention,” used in place of “the present invention.”
When writing a patent application, there is a delicate balance that must be maintained, between describing an invention well enough to meet the statutory requirements and keeping your language general enough that the inventor’s competition can’t make a quick, easy design-around implementation that doesn’t infringe the patent. Patent protection is only worth as much as what you can prevent others from doing without paying you licensing fees or a royalty.
Luckily (or unluckily, depending on which way you look at it) decades of infringement litigation and appeals of patent office decisions give a roadmap for patent practitioners to follow when drafting a patent application. Unfortunately, the roadmap changes so often that the language you’re using today to draft a patent application may be no good by the time that application is used as the basis for an infringement suit – or even by the time it’s being examined by the PTO.
One patent drafting faux pas, which has developed in the last eight years or so, is stating that something is “the invention,” or stating that “the invention” includes something else. As the Court of Appeals for the Federal Circuit has demonstrated, such language can be used to narrow the protection that your patent would otherwise provide.
November 20, 2009
File under “Lamest. Publicity. Stunts. Ever.”
A federal lawsuit was filed this week in the Southern District of Florida, alleging violation of the Trademark Protection Act (source). I would just like to refer the filing attorney, Juan Abogado, to Federal Rule of Civil Procedure 11.
