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Geekview IP Weeks(ish) in Review
WVU says F* You to Kevin Ford.
Kevin Ford owns a company named MivaMan, which makes and sells some pretty silly and somewhat irreverent t-shirts at fastees.com. Apparently, West Virginia University (WVU) doesn’t have much of a sense of humor when it comes to t-shirts bearing its colors and parodies of its slogans, or as the lawsuit WVU filed against MivaMan and Ford put it, “merchandise that incorporates wordmarks, color schemes and other source-identifying indicia associated with WVU . . . calculated to create the misimpression that [it] is licensed or sponsored by or otherwise affiliated with WVU.” Um, what?!? Does WVU really think that consumers are likely to be confused into thinking these t-shirts originate with WVU or are approved by it? Raise your hand if you thought these T’s were authorized WVU merchandise. I see neither trademark infringement nor dilution here, as it seems pretty clear that this here is a parody, which the Trademark Dilution Revision Act expressly excludes from dilution by tarnishment or blurring. Bullies are no longer limited to school children. Nowadays, even a school can be a bully! Or a newspaper . . .
The Occupation will be publicized.
Or so states the tagline on the masthead of the Occupied Oakland Tribune (OOT) blog, which was created in November, 2011 and describes itself as “an unofficial blog about Occupy Oakland as well as local politics and activism.” The website also states in a couple places — in what must be no bigger than a 4 point font size — “DISCLAIMER: The Occupied Oakland Tribune is media for the 99 percent. We are in no way affiliated with the Oakland Tribune or their corporate overlords, the Bay Area Newsgroup. Nor do we want to be.” The Oakland Tribune is a print publication owned by Bay Area News Group (BANG). BANG sent OOT this C&D letter on January 6, 2012, posted to Scribd by Oakland Local. According to a January 7, 2012 press release issued by OOT, it is represented pro bono by a young gun named Michael Siegel, of the firm Siegel & Yee (presumably named for his father). Lucky for OOT to have found Michael and lucky for Michael that his dad is so cool! You know what else is cool? Huntin’ alligators . . .
Swamp People Star hunts alligators and infringers.
Troy Landry is the one of the badass gator-huntin’ stars of the History Channel‘s program Swamp People. Troy plays himself on the show and has created a brand around his identity and catchphrases. So much so that he filed 9 intent to use (ITU) trademark registration applications at the end of 2010. Two seek to protect TROY LANDRY — one for food products and another for apparel. In fact, the majority of Mr. Landry’s applications are for apparel: GOT GATOR? and TREE SHAKA and TREE BREAKA and MUDDA FRICKA and CHOOT DAT and CHOOT EM, which Landry also seeks to protect for coolers and “gift packages sold as a unit consisting primarily of a sweatshirt and also including a photo frame, a coffee mug, and a tote bag.” There’s also another pending application to register CHOOT EM for key chains, key tags and tote bags. According to the lawsuit Landry filed against 3 infringers all doing business in Louisiana, “[s]ince early 2010, Plaintiff has continuously used the trademark, “Choot Em,” and has since developed and utilized the trademarks “Tree Shaka,” “Tree Breaka,” and “Mudda Fricka” (hereinafter referred to as the “trademarks” or “Landry trademarks”) to identify its products.” The complaint states that the Defendants are selling infringing merchandise under numerous Landry marks on Nationalcap.net and elsewhere. If Landry’s allegations of use (both his and the defendants) are true, then I think he’s gonna come up the victor in this legal wrestling match. And elsewhere, there’s a dance-off . . .
Kryoman v Glo-bots: prepare for courtroom hoedown over neon lights and copyrights.
What’s a 9 foot tall, neon-lighted, multi-color, color-changing, laser-gun-wielding, show-of-its-own? Kryoman! Kryoman’s costume just may be the coolest costume ever. It’s the brainchild of a British chap named Andrew Moore who works from Miami, Florida. Moore’s not just a creative genius, he’s also smart about protecting his IP. Moore federally registered his KRYOMAN trademark for “Entertainment services in the nature of live musical and theatrical performances,” and obtained a visual arts copyright registration for his light suit. Unfortunately for Moore, his registration wasn’t timely — the work was published on March 26, 2007 but not registered until May 21, 2010 so Moore is ineligible to obtain statutory damages or attorneys’ fees. That didn’t stop him from filing a lawsuit for copyright infringement against a group of businesses and individuals that Moore says hosts and promotes electronic music parties all over the world, featuring a performer that resembles Kryoman® who hosts and promotes but goes by the name LED WildChild Kryogenic Glowbot (or Glo-bot) Stiltwalkers (at least they went out of the way not to infringe the Kryoman mark). Moore’s suit seeks to prevent the Glo-bots from (a) reproducing his Kryoman suit, (b) performing in knock-offs of his suit and (c) using images and video of the knock-off suits to promote the Glo-bots shows. While it’s likely to cost him a pretty penny, I think Moore will win this one and the Glo-bot’s lights will be extinguished. Of course it’s not too late for the parties to figure out how to play nice and work out a licensing deal. Kryoman’s not the only performing artist to recently seek help from the courts . . .
Velvet Underground slips a disc over Warhol Foundation’s unauthorized use.
Whoa Nellie, this one has the potential to get messy! The Velvet Underground (VU) is a 1960’s American rock band with an immense influence on music and pop-culture. Although known for his art, Andy Warhol managed the band, which was the house band at his Factory studio during the 1960’s. VU’s first commercial album was The Velvet Underground & Nico, comprised of the Warhol banana print. Early copies of the album (depicted above) encouraged the owner to “Peel slowly and see,” and the cover actually could be peeled back to reveal a fleshy colored banana. The VU banana logo has been called iconic by the New York Times and was recognized by Rolling Stone as the 13th Greatest Album of all Time according to the lawsuit VU filed against the Andy Warhol Foundation for the Visual Arts (AWF). The suit seeks declaratory judgment that the banana copyright is in the public domain, while also seeking damages for trademark infringement on its banana brand, which it alleges AWF has licensed without authorization from VU. As the attorneys peel through the history of this case they’re sure to focus on each party’s use of this image and their interactions with one another since the 60’s. How it will all play out is anyone’s guess. And in other cases to keep us guessing this week — a football player who decided to seek trademark protection only after he caught on to others using his catchphrases . . .
Will Linebacker Suggs’ trademark applications be blocked?
According to an article on the Baltimore Sun website, Baltimore Ravens football player, Terrell Suggs jokingly claimed Ball So Hard University as his alma mater during a November, 2011 pre-game interview. An enterprising gentleman named Brian Bussells who runs a company called Busstees.com started selling BALL SO HARD UNIVERSITY t-shirts and hoodies at Ballsohardu.com soon thereafter (November 7, 2011 according to his trademark application), which he wasted no time in filing on November 9, 2011. Suggs’ media company — yes, media company — Team Sizzle Films filed its own Intent to Use trademark registration applications for BALL SO HARD UNIVERSITY on November 17 & 18, 2011 for: bags & packs; clothing; celebrity appearances; cups & mugs; and printed goods, notebooks and photographs on. Bussells’ use and PTO filing date beat Suggs and while the mark is “associated with Suggs’ celebrity,” I don’t think that’s enough to trump Bussells’ trademark rights. Were Bussells using Suggs’ nickname — T-Sizzle — that would be problematic, but this is not that. Do you think we’ll ever know who wins or do you agree with me that the smart money says this will soon settle?
The law is many shades of gray. There’s always (at least) 2 sides to each story and law firms and lawyers that believe in each side. Some cases seem obvious, while leave us wondering. Sometimes some even go to trial, providing answers and precedent, for today anyway.
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[…] weeks ago in Geekview, I wrote about the lawsuit filed by The Velvet Underground against the Warhol Foundation for […]