DuetsBlog Collaborations in Creativity & the Law

Dan Kelly

View my professional biography

You can call me a “non-traditional” attorney, which is a polite way of saying that I did not attend law school straight out of college. I spent five of my first six years after college as a junior high school teacher. The other year I worked as an engineer for a large corporation, which was kind of like starring in my very own Dilbert® comic strip. Once I decided to get a law degree, I faced horrendous pressure to become a patent attorney, because the only polite thing to say to a non-traditional law student with an engineering degree is, “You should become a patent attorney!” I caved. (The line to explain your invention idea to me and ask whether you can patent it forms on my left.) I now spend my days immersed in the vagaries of trademark, patent, and copyright law. I am otherwise outdoors as often as possible.

Posts by Dan Kelly

Specific Non-Commitment

Posted in Advertising, False Advertising, Marketing

I have generally enjoyed Geico’s commercials over the years, having gone so far at one point as to actually become an auto-insurance customer (but not currently).  Geico’s commercials can be viewed on its website here, and the vast majority of them end with the same tagline–one that I have heard frequently enough that it is… Continue Reading

Generational Naming 8.0

Posted in Branding, Marketing, Trademarks

I ran across information today that Microsoft is coming out with a new operating system this fall:  Windows 8.  8?  What goes into that branding decision?  I’m intrigued by the fact that Microsoft and Apple are again heading in opposite directions.  Apple eschewed the moniker “iPad 3″ for its latest generation of the iPad, opting… Continue Reading

Can a Domain Name Amplify Trademark Confusion?

Posted in Domain Names, Goodwill, Infringement, Law Suits, Trademarks

There has been at least one interesting trademark-related story in the wake of the Rush Limbaugh flap.  Health insurance company Humana Inc. and its subsidiary Concentra Health Services, Inc. sued Preval Group, LLC for an injunction against Preval’s use of CONCENTRA in connection with a “memory pill.” Humana raised the issue of likely confusion and… Continue Reading

Some “Inside Baseball” on New gTLDs

Posted in Domain Names, Trademarks

I have just made the happy discovery that the good folks over at FairWinds Partners, operators of the Domain Name Strategy blog, have another blog called gTLD Strategy. In this post this week, they have hinted that there may be more “.brand” applicants in this round of gTLD applications than many people have been expecting…. Continue Reading

BIG GINGER Trademark Dispute

Posted in Branding, Food, Infringement, Law Suits, Marketing, Trademarks

Twin Cities quasi-celebrity Kieran Folliard grabbed headlines this week by suing the owners of Jameson Irish Whiskey, Pernod Ricard, for trademark infringement.  Folliard is well known in the Twin Cities for founding a chain of pubs, including Cooper, Kieran’s Irish Pub, The Liffey, and The Local.  Of these, The Local serves a locally well-known drink… Continue Reading

Does the Trademark Office Need a Trademark Attorney?

Posted in Counterfeits, Infringement, SoapBox, Trademarks

A few times each year, clients will call or write and inquire about some official-looking correspondence they’ve received about a trademark registration or application.  That happened this week, and here’s the top portion of the official-looking correspondence (redacted): You can see the full page here.  If you read the fine print, this letter from the… Continue Reading

Georgia-Pacific 2, Towel-Stuffing Defendants 2

Posted in Branding

Back in September of 2010, I discussed a couple of then-recent cases about Georgia-Pacific’s trademark lawsuits over the “stuffing” of non-Georgia-Pacific paper towels into GP’s proprietary dispensers.  By way of brief review, the Eighth Circuit affirmed a lower court decision out of the Western District of Arkansas holding that the practice of “stuffing” does not constitute trademark… Continue Reading

A Capote Christmas

Posted in Goodwill

Last year, I posted a passage from Dickens’ A Christmas Carol to put us in a right mood for Christmas Day.  This year, I give you some images from Truman Capote’s "A Christmas Memory": Of the ingredients that go into our fruitcakes, whiskey is the most expensive, as well as the hardest to obtain:  State… Continue Reading

Top-Level Domain Names as Trademarks

Posted in Branding, Domain Names, Marketing, Trademarks

The Trademark Trial and Appeal Board recently issued a precedential decision upholding the Trademark Office’s refusal to register five applications for the mark .MUSIC in connection with a variety of goods and services, holding that .MUSIC is merely descriptive of the goods and services.  A PDF copy of the decision is here.  A company called theDot Communications… Continue Reading

High Fructose Corn Syrup, Thy Name is Not Corn Sugar

Posted in Advertising, Branding, False Advertising, Food, Law Suits, Marketing

More than a year ago, I blogged about high fructose corn syrup getting a makeover.  The Corn Refiners Association has undertaken a campaign to rename high fructose corn syrup as "corn sugar."   (See SweetSurprise.com and CornSugar.com to be indoctrinated.) I recently learned that a number of sugar companies (that’s cane sugar or beet sugar) sued… Continue Reading

First in Time on the Internet

Posted in Branding, Domain Names, Marketing, Social Networking

Yesterday, Laura provided some good marketing reasons for grabbing your company’s brand name(s) and/or trademark(s) on various social media sites while the marks and brands are still available.  I am not a marketing professional, but I agree with everything that she has said, and I’m here to provide some "legal" reasons for grabbing your company’s… Continue Reading

Adult Domain Space Opt-Out Ends in a Week

Posted in Domain Names, Marketing, Trademarks

Time is running out to take defensive action for opting registered trademarks out of the forthcoming ".xxx" domain space.  Depending upon the registrar that you use to do this, an opt-out application is due by October 28, 2011, will cost around $300, and will prohibit third parties from registering opted-out trademarks as second level domains… Continue Reading

Bank Branding Revisited

Posted in Branding, Dilution, Trademarks

A couple of years ago, I posted about the use of FIRST in bank names, and titled my post "First First!  A Diluted Banking Brand?"  Well, life imitates art: Now, in this company’s defense, its name is just First National Bank, and the above signage really just combines two marks.  An image of a yoked ox separates… Continue Reading

What do iPhone, iPad, iCloud, and iBooks Have in Common?

Posted in Branding, Famous Marks, Infringement, Law Suits, Trademarks

Let’s review: From 1978 through 2007, Apple was in on-again, off-again trademark litigation with Apple Corps, holder of rights in The Beatles’ music and record label, over use of the APPLE trademark in connection with numerous music-related aspects of various Apple products and services, including iTunes. In 2007, Apple introduced its iPhone while Cisco held… Continue Reading

Excuse Me, There’s Some Ketchup on Your Miracle Whip Bottle

Posted in AlphaWatch, Branding, Food, Marketing, Product Packaging

Today, another chapter of AlphaWatch.  I saw an arresting display of Miracle Whip dressing at my local grocery store a couple of weeks ago.  Certain members of my household cannot stand the stuff, so we don’t generally buy it, and I had been blissfully unaware of the most recent label: I will grudgingly grant that the… Continue Reading

Sed Quid in Infernos Dicet?

Posted in AlphaWatch

It has been some time since we have visited AlphaWatch, and today we turn our attention to an ad I spied on ESPN’s website this week: This takes me back to law school and a Latin phrase common in legal parlance, res ipsa loquitur, which is commonly translated, "the thing speaks for itself."  The legal principle… Continue Reading

Masters’ Marks II: The Green Jacket

Posted in Branding, Famous Marks, Non-Traditional Trademarks, Product Configurations, Trademarks

It is Masters time again.  See my post from last year if you think that this has something to do with graduate degrees.  Last year, I listed a number of marks of the Masters Tournament, including the Green Jacket.  Hard core trademark types will be interested to learn that last December, Augusta National, Inc. filed… Continue Reading