Tuesday, January 20, 2009

Thoughts on President Obama's Inauguration Speech

While this may be (and probably is) reading too deep into the text of our 44th President’s address today, I wanted to point out a couple passages.

“Our economy is badly weakened, a consequence of greed and irresponsibility on the part of some, but also our collective failure to make hard choices and prepare the nation for a new age.”1

While I cannot blame the current state of the economy on intellectual property issues, there is certainly quite a bit of complaint that can be made of greed and failure to make hard choices that may or may not need to be made. Patent trolls are one example that come to mind, and the firms that buy up unused or unheard of patents to landmine an unsuspecting company for millions of dollars.2 Also the Copyright Term Extension Act (“CTEA”) also comes to mind.3 The needless extension of the term of a copyright’s life, while protecting the artist’s (or creator’s) work, in thoughts acts as a chill upon the blooming of the creative arts. It was my understanding that Congress was supposed to encourage the useful arts,4 but the CTEA seems contrary to the purpose laid out in the Constitution.

“Rather, it has been the risk-takers, the doers, the makers of things — some celebrated but more often men and women obscure in their labor, who have carried us up the long, rugged path towards prosperity and freedom.”5

The makers of things. Those that use their mind’s power to make our world. They have always been celebrated and if not for American ingenuity we would not be the superpower we are. This is intellectual property at its core. Innovation drives all the economy and all of us.

“Our workers are no less productive than when this crisis began. Our minds are no less inventive, our goods and services no less needed than they were last week or last month or last year. Our capacity remains undiminished. But our time of standing pat, of protecting narrow interests and putting off unpleasant decisions — that time has surely passed.”6

Protecting narrow interests has been a hallmark of U.S. intellectual property policy around the world. This needs to change in a big way, or the U.S. will likely find itself on the short of end of a big stick in the future.7 Failing to protect other countries’ nationals’ IP eventually will result in a tit-for-tat trade war, one that we as a country will likely lose. The PRO-IP Act, recently passed into law at the end of George Bush’s tenure in office reiterates the attitude of “protect U.S. interests abroad, but forget the rest of the world.”8 President Obama is absolutely correct, that a new way forward, on all accounts will be necessary to properly heal the American economy and protect U.S. interests at home and abroad.

1: President Barack Obama, Inauguration Speech, January 20, 2009, available at http://news.yahoo.com/s/ap/20090120/ap_on_go_pr_wh/inauguration_obama_text.
2: See generally Patent Troll, Wikipedia, available at http://en.wikipedia.org/wiki/Patent_troll.
3: Copyright Term Extension Act, Pub.L. 105-298, codified in 17 U.S.C. § 102 (2006) (extending copyright protection to the life of the author plus 70 years or in the case of a corporate author 120 years after creation or 95 after publication, whichever is shorter).
4: U.S. Const., Art. I, § 8, cl. 8 (providing that Congress is "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.")
5: Obama, supra note 1.
6: Id.
7: See ITC, Ltd. v. Punchgini, Inc., 482 F.3d 135 (2d Cir. 2007) (“[Petitioner] argues the United States cannot expect other nations to protect famous American trademarks if United States courts decline to afford reciprocal protection to famous foreign marks.”); see also Brief for American Intellectual Property Law Association as Amicus Curiae Supporting Petitioner, ITC, Ltd. v. Punchgini, Inc., 128 S. Ct. 288 (No. 06-1722) 2007 WL 2174224 (suggesting the 2nd Circuit decision in ITC puts the U.S. in violation of its treaty obligations); Prioritizing Resources and Organization for Intellectual Property Act of 2008 S. 3325, 154th Cong. (2008) [hereinafter PRO-IP Act] (inferring from the Joint Strategic Plan’s primary focus on international relations, with a cursory discussion of domestic intellectual property issues that protection of foreign rights in the U.S. will be minimal).
8: See PRO-IP Act, supra note 7

All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible

This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property

That's Quite the Midterm "Grade Report" There Son...

Quick update before the story gets too old, the BBC1 was kind enough to post this story about a school in Suffolk winning the battle against a cybersquatter.2 I can only imagine what the parents of the students of Framlingham College thought when they visited what was supposed to be the school website. People talk about bad faith when it comes to cybersquatting,3 and I am personally of the opinion that any pornographic site that purposefully chooses a college name for its web address is likely doing so with something other than an above-the-table intent. The article talks about the “pernicious” and “misleading” effect of the squatting,4 I can only imagine. It would certainly make a parent rethink where the tuition money was going....

Happy Tuesday.

1: See “School’s links to porn site end,” BBC News, Jan. 14, 2009, available at http://news.bbc.co.uk/2/hi/technology/7826794.stm.
2: See The Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) (2006) (hereinafter ACPA) (according to the ACPA, cybersquatting is the registering, trafficking in, or the use of a domain name in bad faith with the intent to profit from another’s trademark); see also Uniform Domain Name Dispute Resolution Policy, ICANN (hereinafter UDNDRP) (listing that a complainant to a cybersquatting charge must establish that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; the registrant does not have any rights or legitimate interests in the domain name; and the registrant registered the domain name and is using it in "bad faith").
3: UDNDRP, supra note 2.
4: See BBC News, supra note 1.

All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible

This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property

Thursday, January 15, 2009

Sexy Underwear Party + American Idol = Hilarity Ensues

What kind of world have we come to where the humble and hard-working adult dancer is in danger of being sued for trademark infringement by a giant media conglomerate.1 First off, I find the idea that a strip club "tarnishes" the American Idol image to be on the hilarious side. But really there is one thing I wanted to touch on, the allegations of trademark "tarnishment."2

As far as "tarnishment" of a trademark goes...that really puts things under the purview of the Federal Trademark Dilution Act ("FTDA"),3 a subsection of the Lanham Act.4 Tarnishment is a type of trademark dilution and is defined in the statute as an "association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark."5 However, this raises one problem because to qualify for FTDA protections, "American Idol" must be deemed a "famous mark." The test for which essentially asks if the mark is so prominent that it is "widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner."6 In the story at issue, it's probably arguable that "American Idol" is widely recognized by the general consuming U.S. public, except for probably the Amish. Most people when they see the "American Idol" logo would likely assume that whatever the logo is on comes from "American Idol," presuming the product has something to do with singing, show business, Ryan Seacrest, or some "Idol" product endorsement. Thanks to the recent passage of the Trademark Dilution Revision Act ("TDRA"), "Idol" does not have to prove the strip club would actually harm their mark, only that it is likely that it will.7

The FTDA arguably would qualify "American Idol" as famous, but ultimately, the question of "tarnishment" is a bit ridiculous. Granted, without an actual picture of the alleged infringing logo and t-shirts in question, it's hard to say how close the two are, but the fact that one involves a local stripping competition in Texas and the other a nationwide singing competition, the actual likelihood of confusion is probably minimal, as my guess is many of the male patrons of the strip club probably do not watch a whole lot of "American Idol," but I imagine they are probably fans of "Stripper Idol." Prior to the passage of the TDRA, I would think that the strip club probably has a pretty solid argument, but the newer statute weakens the argument a bit. Either way, I will be watching for the results of this case with interest.

1: See "'American Idol' sues Austin strip club," Emily Ramshaw, Dallas Morning News, January 13, 2009, available at http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/DN-stripperidol_13tex.ART.State.Edition1.4b919b4.html.
2: Id.
3: See generally Federal Trademark Dilution Act, 17 U.S.C. § 1125 (2002).
4: See generally Lanham Act, 17 U.S.C. §§ 1051-1129 (2002).
5: 17 U.S.C. § 1125 (c)(2)(C) (2002).
6: Id. at § 1125 (c)(2)(a).
7: Trademark Dilution Revision Act of 2006, 12o Stat. 1730, 1730-32 (2006) (providing a famous mark holder only need prove that the alleged infringer's use would likely dilute the rights holder's mark); but see Mosely v. V. Secret Catalogue, Inc., 537 U.S. 418 (2005), superseded by statute, TDRA, supra note 3 (holding a trademark owner had to prove actual dilution and harm to succeed on a claim of trademark dilution).

All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible

This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property

Tuesday, January 13, 2009

Bears and Volcanoes and Trademarks, Oh My!

So it was recently reported in the news that Yellowstone National Park was going to esplode (sp) in a giant fiery caldera volcano.1 Sounds exciting, and very similar to two movies from the late 1990s.2 But I digress.

The actually interesting part of the story was about the website that reported said alarmist eruption used (rather unapologetically) the U.S. Geological Survey's logo (apparently in addition other trademark-ish type things). The site was since taken down, but either way the main concern by the Yellowstone spokesperson was that people would be confused about the source of the information.3 As McCarthy tells us, trademarks are about source and origin designation,4 so the USGS's concern is understandable, wouldn't want people thinking the U.S. government was flying off the handle with any inaccurate information.

The fact that the USGS technically is not selling any "product" per se would be a false assumption, as the news can be interpreted as a product5 (albeit freely accessible, usually at low cost). I think the disingenuous website poster probably made a smart move taking the site and the USGS's concerns well founded.

The funny thing is, the trademark issue wouldn't even blip on your radar, it's buried nicely in the article.

Happy Monday.

1: See "Caldera," Wikipedia.org, available at http://en.wikipedia.org/wiki/Caldera
2: See "Volcano," 20th Century Fox Entertainment, 1997; "Dante's Peak," Universal Pictures, 1997
3: See "Quakes shake loose fears about Yellowstone Volcano," Mead Gruver, Associate Press, available at http://news.yahoo.com/s/ap/20090110/ap_on_sc/yellowstone_volcano_hysteria.
4: Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 3:4 (4th ed. 2008) (defining trademarks as a design which reflects the origin of the good or service and distinguish it from others); see also Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 900 (9th Cir. 2002) (“[Trademarks are] the owner’s way of preventing others from duping consumers into buying a product they mistakenly believe is sponsored by the trademark owner.”).
5: See I.N.S. v. A.P., 248 U.S. 215 (1918) (holding that the dual nature of news reporting means there is a "product" to be had, albeit with restrictions).

All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible

This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property