August 12, 2010
The Naked Cowboy Drags The Naked Cowgirl To Court
Although this happened a few weeks back, I still get a kick out of this story, and I’ve been hearing more and more about it. The Naked Cowboy (Robert Burck) has sued The Naked Cowgirl (Sandy Kane) for allegedly infringing on his trademark. I am not too sure what his trademark is, but I suppose it is a nearly naked person strumming a guitar in the middle of a major metropolitan area and generating revenue by getting television coverage on the likes of The Today Show. Before you ask, the answer is no. I don’t get it! A lot of you ladies out there might get it, but not me.
It sure is cold out here....shrinkage???
The Naked Cowboy earned his fame by walking around New York City in nothing but his cowboy boots, cowboy hat and a pair of draws while strumming his guitar and, in the process, entertaining New Yorkers. He’s not a bad looking man, and he has a body that is ever so slightly nicer than mine (insert fat joke here) so naturally, he was able to make some money off of his bit. As the saying goes, if you’ve got it, flaunt it. I’ll stick to writing these articles. I’ll leave the naked lawyering to someone else.
I don't see why they can't co-exist!
I did a quick bit of research and I did not find a registered trademark for “The Naked Cowboy.” I am truly wondering what the cause of action is here. Mr. Naked Cowboy is likely asserting common law trademark causes of action, and it attempting to stop someone else from profiting from his unique act. At this point, it will be up to a court to decide whether or not trademark protection can be afforded for his act.
July 26, 2010
Suck it, El Jobso
A while back, attorneys for Apple concocted a creative argument for why jailbreaking your iPhone constituted an infringement of the copyrights in the device’s software, based on the anti-circumvention provisions of the Digital Millennium Copyright Act (more familiarly known as the “DMCA”). The Library of Congress (as the body that promulgates regulations for enforcement of the Copyright Act) has today proposed an exemption to liability that specifically puts the kibosh on Apple’s legal theory.
May 6, 2010
IP Holding Companies, Part III
In parts I and II of this series, we discussed the importance of setting up an IP holding company where all of your IP is held. We also provided some pretty good examples of the kinds of things that could happen if your IP is not properly titled in your IP holding company, or if you comingle your IP holding company with other assets. That leads us to this post – a brief overview of the requirements that MUST be followed in order to properly protect your IP and shield it from other liabilities.
As we recommended in our previous post, you should set up an LLC that has the purpose of holding your IP and licensing the IP for use by others. This can actually be a rather simple process here in Florida. The website for the Florida Department of State Division of Corporations is sunbiz.org. The filing forms for setting up your LLC are available for printing or, if you have an account set up already, you can simply electronically file the forms. As noted, this can be a simple process, but one that is somewhat easy to do improperly as well. When all else fails, seek the advice of an attorney.
April 26, 2010
IP Holding Companies, Part II
In a previous post, we discussed the importance of forming an intellectual property holding company to own your IP. That previous post established that starting an IP holding company is necessary. This post will focus on the details.
Talk to any lawyer, and one of their primary goals for their clients is managing their liabilities. This generally includes separating assets so that liabilities do not cross over. For example, suppose you own your IP personally, i.e., it is titled in your name personally. Now imagine that a thief breaks into your house, slips on your floor, sues you for having a slippery floor, and somehow gets a judgment against you (here is a story about a burglar that sued the homeowner that shot him). What happens if your homeowner’s insurance does not cover the judgment? (more…)
April 14, 2010
IP Holding Companies – Why You Need One
If you’re running your own small business, and you don’t have a holding company for your intellectual property, you should make an appointment to have your head examined. Creating a separate entity, solely for the purpose of owning your IP, is the quickest, easiest, and cheapest way to insure the goodwill associated with your business.
I realize that the subject matter of this post is a bit drier than what you may have grown to expect from Tactical IP, but I’m hoping that at least a few of our readers are here for free tips on how to make their intellectual property work for them. With that in mind, I’ll try to keep this light and painless.
Liability protection is the name of the game when it comes to creating business entities. Think of it like an insurance policy. If you do it right, assets can be protected from creditors, including judgment creditors who may have prevailed in a lawsuit. As far as the law is concerned, a properly created and maintained business entity is a separate “person” from its owners and employees. The benefit of that treatment is that, if the property created and maintained business entity incurs debts or gets sued, its assets are the only things that may be taken — not the assets of its owners. Let’s look at an example to really hammer this point home.
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
The “Departure” of Conan O’Brien Brings Up Intellectual Property Issues
So unless you go to bed at 8PM (which I wish I did) or you don’t have a television, you have probably heard that Conan O’Brien’s attempt at hosting the coveted 11:30 time slot for NBC’s late night talk show will be short lived. NBC is bumping Conan and going back to Jay Leno. Personally, I used to watch Leno as I was falling asleep and found his skits to be somewhat humorous – Jaywalking, Battle of the Jaywalk Allstars, Headlines, etc. I never really stayed up late enough to watch Conan’s skits, but I am somewhat familiar with them – the talking picture thing, Triumph the Insult Dog (one of my personal favorites), etc.
As you probably know, the NBC late night debacle has been pretty contentious. My personal favorite was during Conan’s monologue a few nights ago when he was noting that hosting the Tonight Show, even for a short period of time, was the fulfillment of a lifelong dream. He went on to give some advice to the kids out there – “you can do whatever you want to do… so long as Jay Leno doesn’t want to do it too.”
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 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.
