There is a battle brewing over songs by Minnesota’s own Prince.  I, for one, am anxious for the dispute to be resolved so we can enjoy these recordings. Who knows, there may be another worldwide hit “Purple Rain” out there.

The initial lawsuit was brought by Prince’s company Paisley Park Enterprises, which is now owned by his estate and its representative Comerica Bank & Trust, N.A.  (Collectively “Prince’s Estate”). Prince’s estate filed a Statement of Claim against George Boxill who was the sound engineer who worked with Prince on several music performance recordings. Before working with Prince, Mr. Boxill signed a confidentiality agreement. Prince’s estate states that the agreement explicitly stated that all recordings from the consultation remained the property of Paisley Park Enterprise. In 2006, Boxill worked with Prince to record five songs that have not been released yet. Other songs from this work were released on Prince’s album titled 3/21, which credited Boxill as a sound engineer. However, that same year, Boxill refused to return the five recordings to Paisley Park Enterprises. Prince’s estate now argues that this refusal to return the musical recordings violated his agreement.

A year after Prince’s untimely and tragic death, and ten years after working with Prince, Boxill mixed and edited the Prince songs. Boxill and Rogue Music Alliance, LLC and Deliverance, LLC (“music companies”) began promoting and selling the recordings under the name of “Prince” on the website www.princerogersnelson.com (the artist’s full name). They issued a press release announcing a nationwide release of an EP titled Deliverance that included songs by the late iconic Prince. This caused Prince’s estate to commence arbitration against Boxill and another case against Boxill and the music companies in federal court to stop the release of the songs and return them to Prince’s estate.

On April 20, 2018 (five days before the evidentiary hearing in the arbitration proceedings), Boxill and the music companies filed an emergency motion in the United States District Court for the District of Minnesota to enjoin the arbitration. United States District Court Judge Wilhelmina Wright denied the motion.

Boxill and the companies filed another motion to stay the hearing, arguing that the Copyright Act preempted the state law claims asserted in the arbitration proceedings. Judge Wright again denied the motion and ruled that the Eight Circuit lacked jurisdiction to review her order.  Despite this second order, Boxill filed the appeal.  Prince’s estate not only opposed the appeal but also asked for sanctions against Boxill and the record companies. The Eighth Circuit denied both motions.

Hopefully, this dispute will be resolved quickly and we can all enjoy recordings from the late great Prince.

Earlier this month, a California federal judge kept alive a suit brought by the estate of famous jazz musician Thelonious Monk against North Coast Brewing Co. for trademark infringement and infringement of the right of publicity. The dispute centers around North Coast’s popular “Brother Thelonious” Beligan-style abbey ale (beer seems to be on the mind here at DuetsBlog as of late), which features a likeness of Thelonious Monk on its label:

Credit

The estate, managed by Thelonious Monk’s son, Jr., agreed to allow North Coast to use the likeness for selling the beer so long as North Coast agreed to donate some of its profits to the Thelonious Monk Institute of Jazz. North Coast apparently upheld its end of the deal, donating over $1M to the Institute since 2006. Though, North Coast also expanded its use beyond beer, to beer brittle, goblets, hats, apparel, signs (metal, neon, and paper), playing cards, pins, and even soap (made–incredibly–using the beer).

North Coast even registered a trademark on its label design, which “consists of a profile portrait of a gentleman in a red cap, dark glasses, and brown monk’s garb holding a glass of dark beer in one hand and a human skull in the other hand, with a stylized circular black and white piano keyboard behind his head, in an abbey setting.” Sounds like Thelonious Monk, don’t you think? North Coast also has a registered trademark on the name “Brother Thelonious.” A little late to the game, the estate registered a trademark on “Thelonious Monk” this summer.

In 2016, the estate rescinded its permission to use Thelonious Monk’s likeness, and after North Coast refused to stop using the likeness, initiated its lawsuit. The district court judge denied North Coast’s motion to dismiss the case, stating that the factual record underlying the dispute needs to be fleshed out before any of the estate’s claims can be decided. Give it several months to up to a couple years before the court issues a ruling.

The estate’s lawsuit, especially the claim for infringement of the right of publicity, got me thinking about the bases for the right of publicity and the right’s applicability to celebrities who have died–sometimes referred to as “delebs.” Sadly, Thelonious Monk died in 1982. But, like many celebrities, the value of his work and likeness endure after death. Indeed, some celebrities have become bigger in death than they were in life (e.g., Tupac Shakur, Michael Jackson, and Elvis Presley). And beloved local delebs continue to make appearances:

Credit

At first glance, it seems odd that a deceased celebrity (through an estate) would have any right to control the use of likeness after death, let alone profit from it. Indeed, the right of publicity, provided under state law, is largely founded on privacy grounds, protecting the use of one’s identity in commercial advertising given the personal and private interests at stake. After death, those personal privacy interests are no longer compelling. But the right of publicity in many states is also founded on property grounds, in view of the fact that (at least for many celebrities) individuals often invest extensive time, energy, and money in promoting and creating their own personal brand. The thought is that, like other intellectual property rights, one should be able to receive the benefits of that investment (which encourages such investment in the first place). Thus, the right of publicity is based upon both privacy and property interests.

The right to publicity is recognized in over 30 states, but the scope and breadth of the right varies in each state largely because states have differing views on whether the right should be grounded in privacy, property, or both (and if both, to what degree?). Many of these states have a right of publicity statute, but some do not. For example, as I discussed previously, Minnesota does not have a right of publicity statute. In 2016, the Minnesota State Legislature considered the “Personal Rights In Names Can Endure” (“PRINCE”) Act, but never passed the bill. Have no fear, though; previously, in Lake v. Wal-Mart Stores, Inc., the Minnesota Supreme Court recognized the right of publicity based on “individual property” rights and “invasion of privacy,” citing Restatement (Second) of Torts § 652B (1977). 582 N.W.2d 231 (Minn. 1998).

Interestingly, because the right of publicity is a creature of state law, where a person was domiciled (residing) at the time of death controls what kind of right of publicity that person’s estate has after death. Estates for celebrities who were domiciled in Oklahoma are the most fortunate and can enforce the right of publicity for up to 100 years after death. But woe be upon an estate in Wisconsin, which bases its right of publicity on privacy interests and only allows living persons to enforce the right. The amount of time a right of publicity can be enforced after death varies dramatically state-to-state. For a helpful run-down of most states, see this useful overview.

How about in Minnesota? The PRINCE Act would have allowed an estate to enforce a right of publicity for up to 100 years, like Oklahoma’s statute. Under the common law, it remains unclear how long the right persists–though, the U.S. District Court for the District of Minnesota held (ironically) in Paisely Park Enterprises, Inc. v. Boxill, that the right survives death. See 2017 WL 4857945 (D. Minn. Oct. 26, 2017) (Wright, J.). How long thereafter? The Restatement (Second) of Torts doesn’t say.

The most basic takeaway from the current state of the law is that celebrities with likenesses that may have great value in commercial use should consider domiciling in states that have favorable post-mortem rights of publicity. Thelonious Monk was domiciled in New Jersey when he died, and the New Jersey right of publicity extends no longer than 50 years after death. So the estate has about 14 more years during which it can enforce the right, which Thelonious Monk may not have ever exercised in life.

By the way, if you’re interested in trying out the Brother Thelonious, it is available in two Twin Cities locations: First, and most appropriately, the Dakota Jazz Club & Rest (Minneapolis), and also at Hodges Bend (St. Paul).

Today’s offices treat acronyms like linguistic yoga (TOTALLY).

ICYMI, they’re popular also in texts, tweets, and other “thumb-talking” activities.  LOL.  SMH.

Legislators are having fun with them lately too, for example the Personal Rights in Names Can Endure Act (PRINCE Act),  the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), the Brewers Excise and Economic Relief Act (BEER Act), the Jumpstarting Our Business Sector Act  (JOBS Act), the Value Our Time Elections Act (VOTE Act), and last but not least the Accountability and Congressional Responsibility On Naming Your Motions Act (ACRONYM Act).  If you find these as amusing as I do, check out more of them in this article.

Acronyms are often abbreviations formed from the first initials of the words of a descriptive phrase.  Nevertheless, acronyms may be registerable unless  (1) “the wording it stands for is merely descriptive of the goods or services” and (2) it “is readily understood by relevant purchasers to be ‘substantially synonymous’ with the merely descriptive wording it represents.”  TMEP 1209.03.  An acronym will be considered “substantially synonymous” if it is an acronym for specific wording, the specific wording is merely descriptive of applicant’s goods or services, and the relevant consumer viewing the mark in connection with those goods or services will recognize it as an acronym of the descriptive wording.  Id.   So two important considerations that affect registerability of an acronym are the listing of the goods or services and the perception of the mark created by product packaging and/or marketing material relative to these goods or services.

A recent TTAB decision illustrates this concern.  The Trademark Trial and Appeal Board recently affirmed a refusal of CARS for “Computer software used for capturing road data and determining safe curve speeds for automobiles; Computer hardware used for capturing telemetry and road data” and “Software as a service featuring software for capturing road data and determining safe curve speeds for automobiles” on the basis that the mark is merely descriptive of the listed goods and services.  The specimen filed with this use-based application showed CARS as being an acronym for “Curve Advisory Reporting System.”  Given the use of the synonymous “automobiles” in this goods and services description, as well as the use on the specimen, the examiner found the mark to be descriptive and the Board agreed.  Perhaps if the application did not include “automobiles” in the description and the example of use provided with the application did not so directly tie the meaning of the acronym to the listed goods and services, this may have been allowed.

With the popularity of acronyms, marketing teams working together with their legal friends can develop a suitable strategy for the application for the mark and the mark’s use that can help guide an acronym towards federal protection.

My home state of Minnesota prides itself primarily on three things:  our ability to withstand our winters, our 10,000 lakes, and our dearly beloved Prince.  While we take a beating when it comes to our sports teams, all of his purple life we had Prince.  Just like you might do for your neighbors, he opened his Paisley Park doors to any one of us to come hang out and dance until the wee hours of the morning.  Minnesotans kept a respectful distance from him and honored his desire for privacy, even though Paisley Park borders a well-traveled highway in the western suburbs.  Maybe it was just that we all knew we weren’t cool enough to talk to him, but honestly what would you even try talk to him about?!?   After I moved out of the state for college, Prince was often a symbolic rock when I was feeling a little homesick.   When my freshman year roommate decorated her side of the room with dozens of photos of my two least favorite things (Brett Favre in a Packers uniform and Dave Matthews) to mark her territory, I blared Prince from my side of the room.   When the Vikings “set a new mark for futility” and lost the NFC to the Packers, Chappelle’s True Hollywood Story skit about Prince aired.  My Wisconsin-born friends suddenly found being from ‘Sota to not be so pitiful.  “Where is Lake Minnetonka?”   “Did he really have parties like that?”  “Wait, he still does?!”

Prince’s death last week rocked Minnesota pretty hard.   That cool, funky vibe that emanated from his small 5’2″ frame felt noticeably absent in Minneapolis over the weekend.   His aura made you want him to drop some insane, sexy, humorous, wise, out of this world one-liner on you (pay attention heirs, I hope a desk calendar compilation of these is forthcoming).  As much as the world may have been surprised by stories coming out of Minnesota about our state’s relationship with him, I was equally surprised by the extent of all of the Prince tributes worldwide.   As the video from the SNL 40th anniversary party makes clear, even the cool people at the lunch table thought he was too cool for them.  When you grow up thinking of him as your neighbor who floats on purple smoke, threw great parties, and oh also happened to be a musical genius, I never really noticed the true extent of his international stardom.

While he was known for his privacy, he also was known to be strict about his copyrights in his works – probably even more so than Kanye West.  But…he did not have a will,  which means the ownership of his copyrights in his works will certainly be called into question.  The copyright term for an individual’s work is “the author’s life plus an additional 70 years.”   Assuming that he owns them personally, rather than as an asset of some corporate entity, that would give his heirs ownership rights in these works for another 70 years.  The ownership of the copyrights in his songs, and what “heirs” get to lay claim to them, is certainly going to be a hotly contested battle.

And then there are the trademark rights for a guy who once was only referred to by a symbol or The Artist Formerly Known As Prince.  Even before it was confirmed by a judge yesterday that Prince had no will, his trademark filings gave subtle hints that maybe his affairs were not fully in order.   All of the applications that I found appear to be owned by Paisley Park Enterprises.  The maintenance filing for his registration for PRINCE (registered after his Love Symbol period) for “entertainment services, namely, live musical and vocal performances by an individual” was not filed when due in 2004, so that registration was cancelled.  It was refiled in 2005 by a different firm, and again the maintenance filing was not timely filed and so that registration was cancelled in 2013.  It was refiled in October 2014 by yet another firm and just scheduled to publish two days ago.  Meanwhile, his iconic “Love Symbol” is handled by yet another firm — that seems to have even handled simple recent filings in paper filings, which is a rather unusual practice in the last few years due to a preference for electronic filings by the USPTO.  It makes you wonder what actually was going on behind the scenes here.

With one more verse to the Prince IP story, I need another piece of your ear.  You see not only was Prince a musical genius, he was also an inventor of this keyboard design and had a design patent for this, which expired a few years ago.

princeWho will end up owning Prince’s IP rights – and controlling his legacy – remains to be seen, but as I just overheard someone say while I  finished drafting this post “the people of Minnesota should own it.”

 

 

Emojis – those cute images you may find in a keyboard on your Android or iPhone device – have changed the way many people communicate thoughts, ideas, feelings and concepts.  They can add a certain level of pizzazz to an otherwise ordinary text message, Facebook post, or tweet.  And, if I may borrow a line from a more famous Martha, they certainly are “a good thing.”  For Apple/Macintosh fans, I always was fond of the Zapf Wingbats font – so you might call me an early adopter of this phenomenon.

Emojis have been accepted as part of the Unicode – the computing standard for text.  But each platform has a different expression of that Unicode.

So what about when emojis, or even glyphs, are used as part of an advertisement?

We like to reference billboards in our posts here, so take for example this use:

deadpool-emoji-billboard-pic

First of all, what is that?

Skull Poople?

A Super Bowl 50 reference?

Death to Poopy Face L (did I miss the others? and an ode to Death to Smoochy, one of my favorite Robin Williams movies)

Ohhh Dead Pool.  Like DUH.  (Insert sarcastic emoji).  And there is a pool, or at least a guy swimming in a pool, emoji.

Adweek last week called this billboard “so stupid it’s genius.”

We have written before on the use of emoticons and rights associated with it, but this was one of the first examples that I’ve using emojis as part of commercial speech.  So who owns the “skull” and “poo” emoji?

Well, like most legal questions, the answer is:  it depends.  Because emojis are part of the Unicode, their expression is dependent upon the platform in which the viewer sees the emoji.  An emoji viewed as part of an iMessage is different than one on an Android device or one in a tweet or one on Facebook or in your Google chat.  Because of that, it’s important to consider potential copyright issues before using this in an advertisement.  Assuming this was not a permissive use, the Dead Pool example shown may not qualify as a fair use of the skull or poo emojis.  Fair use is a subjective test that considers:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

It’s clearly a commercial use and may be considered to take the whole of the copyrighted work, but whether it’s effect of the use upon the potential market for or value of the copyrighted work (to the extent it is one) remains to be determined.

Is life in 140 characters or less moving us into a glyphful culture?  Bachelor Farmer recently launched a new cafe with no name but cleverly and brilliantly branded with a unique logo from iconography (designed by our good friends at Capsule), a logo that has even spurned a hashtag.

bachelor

Maybe once again Minneapolis’  prince, The Artist Formerly Known As Glyph, who’s playing sold out shows at Paisley Park tonight, was well ahead of the times.  Sort of surprisingly, with the benefit of 15+ years, there’s an article about how to write his glyph in Unicode.

A sense of humor and a little lack of respect:  that’s what you need to make a legend survive.

Karl Lagerfeld on his “winning formula”

Sometimes there is a news story that neatly weaves a bunch of DuetsBlog posts together like a Bottega Veneta shoe fabric design.  Sometimes that story comes from hard-hitting news authority TMZ, founded by attorney and former People’s Court analyst Harvey “I’m a lawyer” Levin.

Last week, fashion icon Karl Lagerfeld was sued by American athletic shoe company New Balance for copying its legendary athletic shoes, like the classic 574 model and the 620 model.

For those of you who follow me on Twitter, you may have seen me suggest last week that, absent other indicia demonstrating Lagerfeld as the source, the shoes could have been from athletic shoe rival K-Swiss.

Even back in the 1980s, New Balance implemented what I consider to be a smart and advisable two-pronged IP strategy for product design:  applying for design patent protection and later seeking trademark protection through a non-traditional product configuration application where the design has become source indicative, often due to an innovative marketing strategy emphasizing design in developing brand recognition.  New Balance was granted D258,772 for the classic design in 1981.

Although the design patent has since expired (design patents only have a term of 14 years), New Balance still has protection over the overall look and feel of its shoes because of its product configuration trademark registrations below, US Reg. Nos. 1,308,133 and 1,344,589.

Unfortunately for New Balance, the expiration of the patent prevents them from seeking damages based on patent infringement, and we have seen how lucrative that has been for design patent savvy companies like Apple.  Even so, New Balance’s trademark complaint was interesting for a couple of reasons.  The trademark infringement standard is a likelihood of confusion analysis, which considers a number of factors, including the similarity of the marks, the similarities of the goods, and the similarities of trade channels.  First, despite seemingly being just a running shoe, the complaint includes evidence of coverage in high fashion magazines like Vogue.  It also includes evidence of celebrities who have been seen wearing the New Balance shoes – suggesting that the shoe is not just for athletic purpose but also high fashion.  Finally, it also discusses New Balance’s and Karl’s history of collaborations with other brands.  The complaint mentions New Balance collaborated with J. Crew, which were featured in Vogue and GQ.  It also mentions Kaiser Karl‘s propensity for design collaborations with companies such as Coca-Cola.  He also has a history of designing for companies like H&M.  These facts are used to suggest a likelihood of confusion between Lagerfeld’s sneaker and the New Balance shoe design and that it may have a dilutive effect in the marketplace.

While Lagerfeld hasn’t answered the complaint yet, one wonders if he will attempt to use a defense of parody for the shoe spoof.  I’ve blogged on parody a couple times, with respect to Moschino and a growing trend of t-shirts spoofing luxury brands.  But could Czar Karl seek a parody defense here?  Likely not.  Despite his formula for success including humor and a little lack of respect hinting at a propensity for indulging in parody, New Balance probably isn’t seeing any humor here.  As we have discussed, a parody must do two contradictory things simultaneously:  it must evoke the original and at the same time convey that it is not original by communicating some element of satire, joke or amusement.  I like to think that I have a great sense of humor (well at least most of the DuetsBlog bloggers around will laugh at my admittedly poor jokes maybe just to be polite), I’m not seeing the humor here, unlike Moschino and some of the t-shirts mentioned in my prior blog posts.  I imagine Pope Karl has an excellent dry sense of humor, which I enjoy, but I’m still not seeing it.  Are you?

While the complaint only deals with the shoe designs described above, Lagerfeld is also selling the shoe below.  Does it remind you of any other shoes?

 

And as long as we’re talking about icons like Karl, and I’m writing from Minneapolis near the cleansing waters of Lake Minnetonka, and I just watched the finals of the French Open, and I’m kind of hungry for pancakes…I’m going to leave this here for your Wednesday amusement.    Pardon the French, but Prince is the $#!%.

Perusing the New York Times last weekend, I came across an article entitled “Wu-Tang Clan Plans to Sell Just One Copy of  a New Album.”  Oh, so they are going to offer one download and watch it permeate the world virally?

Wrong, they literally mean one single copy.  One beautifully boxed album.  A holy grail of rap music from a venerable crew.  One.

 

Wu Tang plans to “exhibit” the album, playing the album (not even performing live themselves) in museums and other similar venues for about as much as a ticket to see Aziz Ansari do stand up live.  And don’t even think about going and recording the album with your smartphone or another device.

The intention appears to be to push the boundaries of how society values art in all forms.  The Wu Tang Clan said in a statement:

Is exclusivity versus mass replication really the 50 million dollar difference between a microphone and a paintbrush? Is contemporary art overvalued in an exclusive market, or are musicians undervalued in a profoundly saturated market? By adopting a 400 year old Renaissance-style approach to music, offering it as a commissioned commodity and allowing it to take a similar trajectory from creation to exhibition to sale, as any other contemporary art piece, we hope to inspire and intensify urgent debates about the future of music. We hope to steer those debates toward more radical solutions and provoke questions about the value and perception of music as a work of art in today’s world.

It’s an intriguing concept based on theories of supply and demand.  But in order to make this work, it seems reserved to those acts that have developed a cult following.   It seems like something Prince would have considered at one point or another.  Rare, sought after albums are often a band’s first album – before they got the record deal and got major airplay.  Valuation of art pieces, however, tend to be based on the work itself, the time period of the work relative to the artist’s body of work and the number of copies or similar works available from the artist.

Do people feel an “ownership” connection about their music the same way that they do about a Warhol or a Banksy, especially those of us who were teenagers listening to Wu Tang around the Napster era?

So DuetsBlog readers, what do you think about the valuation of contemporary art versus music?  Do you think others will follow the Wu Tang distribution approach?

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 news this year. He recently made headlines for sending DMCA take-down notices for eight video clips to Vine, Twitter’s video sharing site. In case you don’t know much about Vine, it is a mobile app that allows users to share video clips over the internet. The clips cannot be longer than six seconds, which seems to present a strong case of a defense based on fair use.

Members of the DuetsBlog staff have been posting regularly on trademark bullying in general, as well as on Minnesota’s attempts to address the issue through legislation. (See here, here, and here). A similar concern exists with copyright law, where copyright owners are sometimes accused of issuing meritless cease-and-desist letters. The most common complaint is that the allegedly infringing use is a “fair use” of the work, protected by the First Amendment. Thanks to the DMCA’s safe harbor provisions, websites and ISPs have an incentive to accept as true the allegations in a take-down notice. And, similar to claims of trademark bullying, the alleged infringer normally lacks the legal expertise and financial resources to assert their legal rights.

Back to Prince, though, who has a reputation for aggressive enforcement of intellectual property rights, as referenced by one blogger’s headline “Prince Still Hates the Internet.” Some of you may remember the case of Lenz v. Universal Music Corp., in which an internet user fought back after Prince’s representatives filed a take-down notice. The video in question was a 30 second home video clip of the user’s child dancing while the Prince song Let’s Go Crazy played in the background (the video has since been re-posted to YouTube and is available here).

Prince and his representatives were so concerned with this video that they sent YouTube a DMCA take-down notice. The lawsuit is now entering its sixth year of existence. On January 24, 2013, the federal judge issued an order denying both parties summary judgment. The basic legal issue in this case thus far has relied primarily on the interpretation of Section 512(f) of the DMCA, which provides that a copyright owner may be forced to pay damages, including attorney’s fees, if the owner “knowingly materially misrepresents . . . that material or activity is infringing.”

The Plaintiff in Lenz argued that the “good faith” requirement of the DMCA requires a copyright owner to consider whether an allegedly infringing use is protected by the fair use doctrine. The judge agreed and in its most recent order, ruled that “a copyright owner must make at least an initial assessment as to whether the fair use doctrine applies to the use in question in order to make a good faith representation that the use is not ‘authorized by law.'” (Opinion available here).

The ruling could have serious consequences for copyright owners. Use of computer programs to identify infringing activity would no longer be sufficient, at least when there is an arguable claim for fair use. Of course, a “good faith” standard is not always difficult to meet. This is particularly true for a determination of “fair use,” which is applied on a case-by-case basis, based on a number of factors with varying importance.  Consequently, a win for Lenz in this specific case may establish Section 512(f) as an avenue for relief from DMCA take-down notice abuse. However it is unclear whether Section 512(f) would have any teeth moving forward. There may be little to no protection if all an owner (or representative) must do is adopt a subjective conclusion regarding potential fair use. An owner could easily state that they considered the various factors, but one factor in particular tipped the scale toward a subjective belief that the fair use defense did not apply.

With regard to trademark bullying, there is no equivalent of the DMCA for trademark infringement. However, this does not mean that Lenz is irrelevant to cease-and-desist letters or notices of claimed infringement for trademarks. The ruling in Lenz might be relevant in the event a notice requires the owner to declare it has a good faith belief that the complained-of activity is infringing. Trademark owners might be expected to not only consider their own rights before filing a claim of infringement with a website, but also consider whether the alleged infringer has any strong or obvious defenses.

I’ll do the internet a favor and resist the urge to close with a Prince-based pun.