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Category Archives: First Amendment

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Distinguishing the Fictional From the Real: Names and Brands in Television and Movies

By on Posted in Agreements, Branding, Dilution, Fair Use, Famous Marks, First Amendment, Infringement, Law Suits, Marketing, Television, Trademarks

We have an interesting question to answer, leading us into the holiday weekend, during which I suspect a few movies will be watched by more than a few marketing types and trademark types: “Is it trademark infringement if a fictional company or product in a movie or television drama bears the same name or brand as a real… Continue Reading

Prince, the DMCA, and Bullying

By on Posted in Copyrights, Fair Use, First Amendment, Infringement, Social Media

Minneapolis’ own hometown hero Prince Rogers Nelson, formerly and currently known simply as “Prince,” has been in the news quite often in 2013. It began with his surprise, limited ticket performances in January, which he followed up with a surprise concert to close out the SXSW festival in Austin, Texas. Prince has also made legal… Continue Reading

Free Speech and The Super Bowl

By on Posted in Advertising, First Amendment

Litigation and the Super Bowl go together in modern America like litigation and, well, anything (e.g. tattoos, Bill Russell) in modern America.  But since the Super Bowl is on most of our radars for the next few days, litigation and the Super Bowl it is. As we all (hopefully) know, the freedom of speech in America is protected by the First… Continue Reading

I Didn’t Realize William Faulkner Used To Live Under A Bridge

By on Posted in Copyrights, First Amendment, Law Suits, Mixed Bag of Nuts

Those of us that work in the field of intellectual property law have gotten really familiar with a species known as trolls.   I’m not talking about mythical Norse creatures.  I’m talking about patent trolls, trademark trolls, and copyright trolls.  To the uninitiated, these various species of trolls are essentially people and companies that attempt to… Continue Reading

Successful Evolution of an Unlicensed Business Model?

By on Posted in Agreements, Articles, Branding, Contracts, Fair Use, First Amendment, Infringement, Law Suits, Marketing, Non-Traditional Trademarks, Trademarks, Truncation

Brand owners and managers may wonder, is a trademark license required when another’s unregistered color scheme is used? Depending on the facts, it may very well be. About four years ago brand owners scored a major victory in LSU v. Smack Apparel, when the Fifth Circuit Court of Appeals agreed to the existence and successful enforcement of… Continue Reading

Pinterest, Thy Name is Fair Use

By on Posted in Almost Advice, Copyrights, Fair Use, First Amendment, Infringement

–Catlan McCurdy, Attorney   First, there was copyright. Then, there was Pinterest. And now, there is drama. The words “copyright infringement” and “Pinterest” have been thrown around a lot recently, mainly due to the blog post of one photographer/lawyer, Kirsten Kowalski. Kirsten recently blogged about her decision to break up with Pinterest aka delete her inspiration boards, and… Continue Reading

Lunesta and Stoogesta?

By on Posted in Advertising, Branding, Fair Use, First Amendment, Marketing, Trademarks

    It appears that Lunesta (eszopiclone) — apparently, the top prescribed branded sleep aid –  has a new fan, but as you’ll see, and hopefully for the Farrelly brothers, the newcomer won’t be anything close to a competitive medicinal product: Stoogesta (nimbiscus dumbphondenol). Stoogesta video on YouTube can be viewed here. We’ll have to wait until April… Continue Reading

How Fashionable is the Louis Vuitton “Trademark Bully” Label?

By on Posted in Articles, Branding, Copyrights, Counterfeits, Dilution, Fair Use, Famous Marks, First Amendment, Infringement, International, Marketing, Social Networking, Trademark Bullying, Trademarks

There has been quite a flap surrounding the poster and invitation used by the University of Pennsylvania Law School to promote Penn Intellectual Property Group’s Fashion Law Symposium, scheduled for a week from tomorrow. The symposium appears to be designed as a serious affair, boasting an all-star cast of general counsel from the fashion industry, including those from… Continue Reading

Reese for Sheriff?

By on Posted in Advertising, Branding, Dilution, Fair Use, First Amendment, Food, Guest Bloggers, Product Packaging, Trademarks

Hat tip to Dave Taylor who provided this photo for some discussion: Looks like a fellow named Mark Reese, currenting Acting Sheriff, is running for Sheriff in Lancaster Country, Pennsylvania, right in Hershey’s backyard. Do you suppose this Hershey’s trade dress may have inspired the Acting Sheriff’s campaign?  Your thoughts on whether Hershey’s has a claim?… Continue Reading

Ex-Husker QB Leads Offense Against EA Sports

By on Posted in Fair Use, First Amendment, Guest Bloggers, Law Suits, Marketing

—By Joey Lomicky, Communications Consultant, Xcel Energy As a Nebraska alum, former (okay, okay, current) sports gaming addict and First Amendment connoisseur, I’ve been intrigued by the high-profile class action lawsuit filed by ex-Cornhusker quarterback Sam Keller, which has recently resurfaced in the news. In fact, there’s a good chance this case may find its… Continue Reading

Environmental Film Disaster, A Case for First Amendment Rights or Past Regrets?

By on Posted in First Amendment, Guest Bloggers

—Joy Newborg, Winthrop & Weinstine, P.A. Award winning film producer Joseph Berlinger made a documentary entitled Crude, which followed the case brought against Texaco by a group of civilians who allege that the oil exploration and drilling conducted by Texaco, now owned by Chevron, in Ecuador polluted the rain forest and contaminated their drinking water…. Continue Reading

Facebook Needs Dislike Option for Lamebook

By on Posted in First Amendment, Infringement, Law Suits, Social Networking

–Susan Perera, Attorney Like most 20-somethings who went to college during the rise of this social media monster, I am quite familiar with Facebook. However, I wasn’t aware of the website Lamebook until the current legal dispute began. Lamebook, a self-proclaimed, “humor blog” was designed to allow people to share the most “ridiculous” things posted on Facebook. The… Continue Reading

Fair Logo, Fair Use & Fair Politics? The Minnesota State Fair’s Trademark-on-a-Stick

By on Posted in Advertising, Branding, Copyrights, Dilution, Fair Use, Famous Marks, First Amendment, Food, Goodwill, Infringement, Marketing, Television, Trademarks

The newest fare at the Minnesota State Fair is not Camel-on-a-Stick, Buffalo-on-a-Stick, or any other kind of Food-on-a-Stick, but rather, Trademark-on-a-Stick. Earlier this week, the Minnesota State Fair (owned and operated by the Minnesota State Agricultural Society, a Minnesota State Agency) was hot to skewer the unauthorized use of its nearly three-decade-old and more recently trademarked logo, by incumbent Republican U.S. Congresswoman Michele Bachmann, in a political ad… Continue Reading

The (South) Butt of the Joke?

By on Posted in Branding, First Amendment, Guest Bloggers, Infringement, Law Suits, Marketing, Trademarks

We’ve had a little rash of graphic design comedic parody lately. The first example is the notoriously funny The South Butt and its tagline "Never Stop Relaxing". Of course, this is an obvious knockoff of leading outdoor clothier The North Face and its "Never Stop Exploring" call to action. From a legal perspective, of course,… Continue Reading

Obamatunistic Advertising

By on Posted in Advertising, Branding, First Amendment, Guest Bloggers, Infringement, Marketing

Jacket maker Weatherproof Garment Company took advantage of a GQ-style photo of the President standing in front of the picturesque Great Wall of China. The White House was not pleased. Smack in the middle of Times Square in New York – one of the busiest and most-watched intersections on Earth – stood a larger-than-life billboard… Continue Reading

Alabama Fumbles

By on Posted in Copyrights, Fair Use, First Amendment, Infringement, Law Suits

–Sharon Armstrong, Attorney Earlier this week the Legal Satyricon and a number of newspapers in the Southeast reported on the University of Alabama’s loss of part of its trademark infringement suit against former licensee Daniel Moore, an artist who has created original paintings featuring the UA’s athletes for over 30 years. UA argued that it has… Continue Reading

Testing Trademark Law: U.S. Chamber of Commerce v. The Yes Men

By on Posted in Counterfeits, Dilution, Domain Names, Famous Marks, First Amendment, Infringement, Law Suits, Trademarks

–Dan Kelly, Attorney Last week, a group calling themselves The Yes Men apparently perpetrated an elaborate hoax to usurp the corporate persona of the United States Chamber of Commerce, to the point of publishing a fake website and holding a press conference at the National Press Club, posing as the Chamber itself.   (Image of genuine website… Continue Reading

Supreme Court Asked to Review Washington Redskins Trademark Case

By on Posted in Advertising, Branding, First Amendment, Law Suits, Marketing, Trademarks, TTAB

Back in May, I wrote a piece entitled "Re-Branding Madness in Washington" Overlooks Obvious: The Washington Redskins," discussing the trademark cancellation action that I filed on behalf of seven prominent Native American leaders back in September 1992 (Harjo et al v. Pro-Football, Inc.), and calling for the football team to "hire a branding guru to engage… Continue Reading

“Chief Wahoo” Re-Branding Underway? A Painful Lesson on Saving Face

By on Posted in Advertising, Branding, First Amendment, Marketing, Trademarks

     A picture can say a thousand words; so does a face. The same is probably true of non-verbal logos, including the several federally-registered "Chief Wahoo" logos, shown above (all apparently still in use by the "Cleveland Indians" professional baseball team, according to their latest trademark filings). So, what do they say to you? My take? I can… Continue Reading

“Re-Branding Madness in Washington” Overlooks Obvious: The Washington Redskins

By on Posted in Branding, First Amendment, Law Suits, Marketing, Trademarks

Re-branding occurs all the time. Re-branding occurs in business. Remember when Bell Atlantic became Verizon? Andersen Consulting became Accenture? How about when Philip Morris became Altria?   Re-branding occurs in politics too. Just days ago, Judson Berger discussed a kind of "re-branding madness" consuming Washington, D.C. right now: "Terrorist attack is out. — ‘man caused disaster’ is in." Our friends at Catchword Branding had… Continue Reading

Terrifying? No, Just Another “Priceless” Imitation!

By on Posted in Advertising, Copyrights, Fair Use, First Amendment, Infringement, Law Suits, Sight, Trademarks

What is it about some advertising campaigns that make them magnets for imitation? For example, the Got Milk? imitators appear to be endless in numbers, but that is the subject of another post for another day.  For today, with respect to a different imitation magnet: There must be an endless number of creative and original ways to market a series of… Continue Reading