Swastika as a Trademark

As is often the case regarding any sort of particular legal practice, the specifics behind intellectual property law and trademark law come with a bunch of snags that several people outside of the practice don’t necessarily consider. For example, there once was a man by the name of Steve Maynard who attempted to register the Swastika and the N-word as trademarks for a business group, Snowflake Enterprises, LLC. Recent changes to U.S. Trademark Act had found unconstitutional the provision that banned certain images or concepts to be trademarked based solely on whether or not they were considered “disparaging.” Maynard, a local of Alexandria, Virginia and one who claims he is “not at all” a racist by any stretch, stated he wanted to trademark the Swastika and the N-word – strikingly enough – to combat their use and marketability by white supremacists. He believed, by trademarking these specific symbols, he could curb the market on Swastika flags by artificially inflating the prices on them to the point that no one would want to buy one, or by reframing the use of the N-word in images that inspired conversation and debate rather than hateful rhetoric. And while many might consider this a noble act to counter certain social beliefs in America, Maynard – a one-time patent examiner – failed to account for a couple of major flaws in his plan.

For one, even despite apparently having the best of intentions, Maynard would have had to register the trademark of the Swastika under a slew of different categories for product use in order to secure the Swastika solely as the trademark of his company. This includes products as teeshirts, coffee mugs, flags, and whatever other sorts of paraphernalia one can consider slapping a prominent socially recognizable symbol upon. That is not to say that he couldn’t accomplish something like that for a variety of other potential trademarks. But, it certainly does provide a bit of a kink in his plan to market (or rather, take off the market) the Swastika.

The bigger and more hampering problem is actually the social perception the Swastika represents. While Maynard’s intent was to utilize it on the market in order to destabilize its availability, the Swastika as it is recognized within the public eye is hardly ever used as an actual marketing device. Rather, because of what the Swastika represents politically and socially, to use the symbol outside of Maynard’s attempt to trademark it for his own business would have proven futile. Because of its proven standing as a political and social symbol instead of being a symbol for commercial use (compared to, say, Apple’s “bitten apple” logo or Google’s rainbowesque G), to use it outside of how Maynard intended to market it would not have been considered infringing upon the commercial intent of  Snowflake Enterprises, LLC. Generally speaking, infringement of this sort is only committed when there is a substantial confusion caused in terms of who is marketing the product. Because the rainbow G associates so strongly with Google as a marketing device, for someone outside of Google to use it in a public, commercial display would cause confusion as to who was actually marketing the product and thus making a profit off of its use. However, because the Swastika has such strong social ties outside of Maynard’s potential to use it as a marketing device, many people don’t interpret it as a commercial logo and so do not associate it strongly with any given company as opposed to a group of socially like-minded individuals who are not necessarily out to profit financially by its use; rather, they use it as a symbol of their group’s ideals, and so – as a political device – it isn’t effectively marketed for commercial use by one business entity or affected very much at all by trademark laws.

Taylor Swift and Her Trademarks

As we walk through the world of a slowly-overwhelming corporate America where everything is little more than a marketing device, it’s usually nice to think we as consumers can fall back on something that usually (usually, I said) doesn’t involve any sort of direct product advertising: music. Music has been around for centuries, developed through various styles and tastes from virtuosos and geniuses of a wide array of backgrounds to evolve into the plethora of genres and subgenres that we are capable of enjoying at our own leisure today. However, in the modern world, some might argue that while music itself may or may not remain genuinely pure, the musical artists whose childhood dreams involved belting a tune on a stage in front of thousands of adoring fans may or may not have gotten something lost in translation along the way. Now, it’s safe to say that musical artists are greatly celebrated for their talent and their lyrics that can inspire a whole generation on the spot, but with that goal successfully reached, where do they go from there? Some use their fame as a voice of influence. Some branch out to other fields: movies or TV shows chief among them. And there are some who go on intelligent property and trademark binges.

Remember when our President Donald Trump attempted to develop the common phrase of “You’re fired” into his own brand? The popularly-used, two-word phrase slung around by the businessman-turned-reality-TV-star-turned-world leader (whatever opinions you might have of him, this is the current reality) nearly became the sole property of our highest government leader. Granted, it was rejected based on a more rudimentary and empirical reason, but to many of us, the idea of capitalizing monetarily on such a common phrase such as that borders on idiocy.

But, the phenomenon of trademarking is hardly a new one, and hardly one that the musical industry has attempted to capitalize upon. While many tend to attempt applying trademarks to band names or specific song titles or even specific gestures (cue the famous Gene Simmons “devil horns” which personally reminds me more of a pretty famous college football gesture anyway), Taylor Swift appears to have been on quite a tear over the last several years in attempts to trademark more substantial portions of her lyrics.

With the intent of furthering her brand as one of the more successful musical artists since the turn of the century, it’s pretty easy to see why Taylor Swift might want to capitalize on specific phrases such as “This sick beat” or “Party like it’s 1989.” But, at some point, one has to wonder: is this for protecting your specific brand? Or is it simply an excuse to slap wholly unnecessary lawsuits for what some might consider to be trivial product placement at best? Intellectual property law is a fickle thing, after all, and one of the conditions that must be met regarding trademark applications is whether or not the trademark in question is actually being used in a commercial setting or at least comes with an intent to use it regarding specific categories of merchandise. And while I’m sure Ms. Swift could come up with a plethora of ideas for merchandise regarding some of her trademarks, there is always the simple question of how aggressive she is with patenting several lines of lyrics and how she might apply them to a commercial setting. Many diehard fans only ever want officially licensed merchandise to show support for a particular brand as opposed to bootleg knockoffs anyway. So, in an ever-increasingly corporate industry such as that of music, the aggressive tactics to protect her intellectual property make you wonder just how much of it may be about the fans and how much of it may be about – and I’m sorry to all the “Swifties” out there – the money.

Famous Logos From Around The World

Most of us don’t give any real thought to where logos actually come from beyond what we can see. The people behind these artistic masterpieces were sometimes inspired by the smallest of things or by the most iconic of symbols before stamping their own little bit of history. Most of the creators of the most famous logos probably had no idea they would become so popular or become so widely used throughout cultures around the globe. These are just a few of the most famous logos used all around the world because they don’t assault our eyes.

Frank Seiberling never disclosed the creator of the Goodyear logo, but that doesn’t really matter. The icon of a pair of winged boots in between the company name is known almost any place where the company does business and was inspired by the Greek god Hermes. That shouldn’t be a huge surprise considering the company’s emphasis on speed and efficiency.

The Mobil Oil icon has changed substantially over the years, but it remains well known anyway. Although colors, font, and other parts of the logo have been altered over the decades since the company began (in 1911), the pegasus has been a primary component of the logo the whole time. 1964 was the first year that Mobil Oil used red to emphasize the “O” in Mobil.

Target was originally founded in 1902 and always used a target as part of its icon. For a long time, it was larger, included more rings, and was black. The single ring design didn’t arrive until 1980 and hasn’t changed too much since it debuted.

The Audi logo has been through a number of iterations, some embracing the new, while others fell back upon the old. The most common component in most is a number of interlocking rings, which are silver and hover above a red-lettered Audi in more contemporary designs. Although the silver rings weren’t always present in the logo after the acquisition by Volkswagen Group, they remained a core part of the grill on every vehicle made.

One of the best-known logos worldwide is that of lego, and its iconic red, yellow, black and white will forever be a part of our imaginations from childhood and onward. The logo used right now was implemented in 1998, but it isn’t much different from its previous version which came to be in 1973.

Sometimes an icon or logo is so well known that you can just drop the name altogether–and that’s exactly what Nike did in 1995. Today, the logo of a curved checkmark is still as simple and effective as it always was. The name Nike also belongs to a Greek goddess who symbolized victory, and Nike has clearly embraced the same over the years.

Logos are often used to create a face for a campaign. Some of the most well-known charitable organizations are known because their logo perfectly coincides with their name, like American Red Cross. Other times, logos becomes the face of a movement. For example, the pink ribbon representing breast cancer awareness or the purple ribbon which often coincides with domestic violence.

Logos of long-lasting companies are clearly the best known throughout the world and Phoenix, but a powerful logo might just be the key to creating a company that does indeed endure.

Famous Copyright Infringement Cases

By now, everyone should know that you can’t just steal artistic or intellectual properties that you don’t hold the rights to and use them however you like. The laws against doing so are strict. Although sometimes law enforcement doesn’t always uphold those laws routinely, the blow can be disastrous when and if that hammer falls upon you. Copyright is a serious issue, and because IP is becoming more difficult to manage, laws and regulations are adapting quickly. These are some famous copyright infringement cases that might make you think twice about using something that necessarily doesn’t belong to you.

Ann Kirsten Kennis worked as a model in the 1980s. Decades later, she had transitioned into motherhood. Her daughter sauntered into the house with a Vampire Weekend album called Contra. That album’s cover had a blatantly pilfered picture of Kennis from when she was a model, and so a whopping $2 million lawsuit resulted. Because cases like these are often settled behind closed doors, the settlement amount remains undisclosed and we’ll probably never know how much Kennis got for this serious copyright infraction.

Somehow, people are still realizing that you can’t use music in advertisements without permission to do so. When Adam Yauch of the Beastie Boys passed away, he left specific instructions that the music was not to be used in such a fashion. That didn’t stop a San Francisco startup called GoldieBlox from putting together a creative YouTube video in order to advertise its toys using the song. Ironically, it was GoldieBlox that sued the Beastie Boys upon hearing of copyright infringement allegations, arguing that parody use of artistic endeavors is protected (that’s why shows like South Park and Family Guy don’t have to worry about lawsuits when they mimic content or potentially defame celebrities and everyone else). GoldieBlox lost their suit.

Speaking of parody, it’s always been a hot topic of fair use laws. When artist Jeff Koons created a sculpture based on a photo entitled “Puppies” taken by Art Rogers, Koons argued that his sculpture was a parody. A jury disagreed since the sculpture provided no direct commentary on Rogers’s photograph or its contents. People often realize their best defense with this type of case is parody, but that does not often do the trick in a court of law.

“Blurred Lines” made a lot of money for Robin Thicke and Pharrell Williams, but its obvious resemblance to a 1977 song by Marvin Gaye led to claims of copyright infringement. Once again, it was the accused that preemptively struck with a lawsuit claiming that the Gaye family was arguing copyright for the genre of music as a whole. The Gaye family won, but is currently seeking more monies.

At the end of the day, it’s better to base your artistic endeavours on your own imagination rather than take the chance of ending up in a courtroom for a ridiculous amount of money.

How Do You Cancel A Trademark?

You can make your mark in your trade with a registered trademark.

However, if you are not careful, your mark could be erased by someone else. That precious trademark is not in permanent marker.

It is possible that your trademark, as brilliantly clever as it is, may well be challenged by what is called a trademark cancellation petition, which can be filed by a third party such as a lawyer for some specified reason.

What is a Trademark Cancellation Petition?

When an entity (firm or individual) has grounds to challenge a trademark, the entity can file a petition to cancel a trademark through the U.S. Patent and Trademark Office. The petition is what it implies – it is a legal document requesting an administrative hearing in front of the Trademark Trial and Appeal Board (TTAB).

Why Could a Such a Petition be Filed?

A petition to cancel a trademark is specifically meant to be something other than a weapon of revenge or jealousy against another person who might have a successful trademark.

There are only a limited number of grounds to bring a petition to cancel a trademark before the TTAB. These are:

  • The mark is too generic (like a company called “Balloon”);
  • The mark has not been used for at least three years, with no apparent intent to re-use;
  • The mark was achieved fraudulently; or
  • What is called “priority,” where the mark interferes with the ability to do business or the mark was used by another party before it was registered.

Is There a Time Limit to File a Petition?

Generally speaking, a petitioner has up to five years after the registration date in order to file a petition to cancel, though a petition filed after five years may be heard under very strict circumstances.

What is a Trademark Cancellation Proceeding Like?

This is a legal proceeding in an administrative setting, which is in some ways similar to a civil court case. It is an adversarial proceeding, which means that the registrant and petitioner may cross-examine each other and scrutinize each other’s evidence and testimony in the case. Because of this, it is not advisable for a party to represent himself for herself in the proceeding, but instead, have a knowledgeable patent law attorney represent your interests.

What is the Result of This Proceeding?

Unlike a civil proceeding, an administrative proceeding like a trademark cancellation does not have monetary damages as a result of the hearing. Should the petitioner win, the trademark would be canceled. Should the registrant win the hearing, the trademark registration remain would intact. The parties may negotiate a settlement outside of the hearing, though.

The Bottom Line

It is understandable to protect your business assets by looking to establish a trademark for your company or your product. But make sure you do your research and check out the legal history of trademark applications to ensure there are no possible grounds for a petition. After that, follow all the rules regarding trademark registration to protect against claims of fraud.

Parodies, The 1st Amendment & Copyrights

The Simpsons. Saturday Night Live. Family Guy. South Park.

At different times, many of us enjoy parodies of various cultural icons and public figures. Many of these shows garnered headlines for some of the parody work they had presented, where they poked fun at various parts of society or culture, whether they be religious symbols, trends, presidents, legislators and even entire groups of people.

Many of us laughed at these parodies. Some of us did not have a sense of humor and got angry. But parody has been part of comedy, entertainment and the fabric of America from the start of the Republic.

Despite their prevalence in our culture, are parodies actually a form of copyright infringement?

Parody is on a razor’s edge, walking the tightrope between a First Amendment right to expression and infringing on a copyright. Sometimes you hear about a lawsuit in support of the original idea which was parodied, claiming infringement, but those who do parodies have a couple different defenses which courts have recognized as exemptions in copyright law.

Copyright law prohibits significant use of any creative work without consent of the copyright owner. And as parody is inherently based on mocking an original “work” of some kind, so there are some legal guidelines that will allow parodies without copyright owner permission.

One defense for a parody can be First Amendment expression, of which the courts have granted pretty wide latitude. One key exception is when the parody is deemed to be created with a profit motive in an attempt to usurp the copyrighted work in the public. Another issue is to not use a significant amount of the work in a parody – and courts have been all over the place in defining “significant.” One guide could be to do a parody of Wal-Mart shoppers but don’t use the Wal-Mart name or familiar colors, as an example.

Another exception from copyright law can be the “fair use” defense, which is often used in many parodies. There are a number of factors that go into determining a parody as a legitimate use of “fair use.” They are:

  • Whether the “new work” (parody) has a different purpose or “character” as the original work;
  • The “nature” of the original – does it require more protection than some other work (historical significance, for example)?
  • The amount of the original work that was used in the parody – and is the parody based wholly on that portion?
  • How would the parody impact the market value of the original?

As mentioned before, parody is prevalent in the media and in social media, and there is some deference to artistic expression with parodies, but the key is to have just enough different so as to not make an obvious connection to the work being parodied. Playing a mental game where some people can mentally conclude the parody while others may not reasonably notice, is where the line is drawn. But as so many minds are different, that line continues to be fuzzily defined.

What is SOPA and PIPA Legislation?

Regulation of the Internet is something that has never come easily for the U.S. and it remains controversial decades after the online playground went mainstream and gained huge popularity and importance. The two main political parties–Democrats and Republicans–often feel differently on how it should be run. Republicans are for regulation that would cater more toward business, while Democrats believe that the Internet should remain free and open for the everyday individual. The latter is necessary for online creativity to continue and prosper as it has for so long, but new laws are currently being written to change that.

The Stop Online Piracy Act (or SOPA) was a House bill meant to help law enforcement crack down on Internet theft of intellectual property. In other words, if you download TV shows or music through the Internet without paying the people who created those intellectual properties, then you could continue to be held accountable with huge fines or even jail time. Even though that sounds good on paper, the bill’s opponents believe it went way too far in what it tried to do.

SOPA would have barred search engines from showing popular piracy websites in their search results or providing those websites with revenue through advertisement space. Court orders could be provided to block those websites, while monetary penalties and prison sentences would have gotten stiffer for those that visit them.

Even though the goal was just, the outcome would have created an undeniable injustice, barring free speech and creativity that the Internet is known for. Efforts to enact SOPA didn’t stop after the bill finally failed in congress.

The Protect IP Act (or PIPA) was a senate bill drafted months earlier and with a similar promise. Proponents thought that it would limit the theft of intellectual properties and protect businesses who create them, while opponents said it would crush online free speech. When it was estimated by the Congressional Budget Office (or CBO) that the bill would cost taxpayers $47 million in five years in new federal employees and enforcement, there was a public outcry and the bill was squashed.

SOPA and PIPA were bills drafted in direct response to yet another failed bill, the Combating Online Infringement and Counterfeits Act (COICA). These bills would have been in direct conflict with newly implemented Obama-era net neutrality laws aimed at preventing Internet service providers from blocking access to certain websites because of their content.

The war against laws that could limit free speech and online creativity is ongoing, even after Trump has voiced his support for such laws and attempted to implement his own. While the road to enacting these kinds of laws won’t be easy, Republicans currently hold all the power after Democrats have failed to pass meaningful protective legislation of their own when they did. Resistance may well be futile, but you never know until it’s over.

Food Network Sued For Copyright Infringement

If you run a food network, you should make absolutely sure that the recipes you use during your daily broadcasts on TV or the Internet are pure originals or properly licensed. It turns out the Food Network may not have done that, as blogger Elizabeth LaBau from Sandy, Utah is suing for the copyright infringement of one of her popular dessert concoction in a California federal court. That dessert was the aptly-named snow globe cupcake.

While it might not be a big deal for the Food Network, cooking is a full-time promise of employment for LaBau and something she takes very seriously. It’s not okay to take something from her blog without providing due credit, especially when the recipe in question tripled her website’s income.

Copyright infringement is a complex issue when it comes to food. If the Food Network had merely posted a laundry list of ingredients used in LaBau’s recipe, it would not be considered copyright infringement. The lawsuit says that the Food Network’s rundown of how to cook the recipe is a near-exact replica of her own, an act of theft that is most definitely copyright infringement. If the network really did use her own artistic expression of the recipe on its own broadcast, then it is liable for stealing the recipe.

Although for now the lawsuit remains in the realm of mere allegation, it is worth noting that the video was added only three weeks after LaBau updated her own website with the tasty recipe.

One might initially believe that the snow globe cupcake recipe could have been accidentally duplicated, but that certainly isn’t the case once you see how the dessert is made. The snow globe portion of the cupcake is literally a dome that hangs over the cake-like portion, but everything is edible. The dome itself is made of a hardened gelatin.

Because the recipe is so unique, its popularity left her website down for a short period of time. She had a whopping 740,000 shares on Facebook alone–no easy feat.

LaBau says that it is that real-life competition that makes the job so difficult and time-consuming, and it was a major blow when such a major network pilfered her work. Her blog has won several awards in the years since the recipe was posted, but LaBau says it suffered substantially when the Food Network posted such a blatant rip-off of her snow globe dessert. Not only that, but when she contacted the network to discuss how they could choose to either remove their video or provide her with due credit, they ignored her request. It was only then that she moved forward with what turned out to be a $150,000 lawsuit.

Whether or not that lawsuit will fall in her favor is of course up for debate. We’ll know soon enough.

What Qualifies As Due Diligence In Regards To Licensing Agreements?

If you want to enter into a licensing agreement with someone, both parties are going to have to exercise due diligence. However, not everyone understands how due diligence applies to licensing. Here’s what you need to know.

Due Diligence For Licensors

If you are the one licensing something, then you need to take a closer look at the person or company that is obtaining the license from you. You may want to conduct some sort of background check.

It is your job to make sure that the licensor doesn’t handle any competing products. You should also make sure that they have a solid reputation. It’s your job to protect your license. Make sure that your licensing agreement won’t damage the license in any way.

Due Diligence For Licensees

A licensor isn’t the only party that has to exercise due diligence. Licensees also need to practice this. What do they need to be doing? To start, they need to make sure that the person they are obtaining the licensing from actually owns the license. If you’re licensing a product, for example, the inventor of that product may not be authorized to license it to you.

There are a number of other things you’ll want to look into as well. You should find out what kind of protection the license has. You should see if the product you are licensing is unique enough to justify the cost of a license. You may want to work with a lawyer. They’ll be able to help you get everything sorted out.

It’s vitally important to exercise due diligence when you are licensing something. If you fail to do this, you could have big problems later on. When is doubt hire one of 361 lawyers to make sure you are handling all aspects of your business correctly.

Some Famous Phrases That Are Copyrighted

A lot of famous and common phrases that we use on a regular basis are copyrighted. Copyright law is unusual; a lot of people are surprised when they learn that certain things are copyrighted. A lot of people use these phrases without ever realizing that someone holds the copyright.

Here are a few surprising phrases that are copyrighted.

“Let’s Get Ready To Rumble”

If you’ve ever watched a sporting event, you have probably heard someone say the words “Let’s get ready to rumble.” This isn’t just a catchy phrase that gets people fired up. It’s a phrase that was copyrighted by Michael Buffer, a sports announcer. He has come to licensing agreements that allow other people to use this phrase.

“It Takes Two”

“It takes two” is a phrase that people say all of the time. However, this particular phrase is also copyrighted. The copyright exists because of the song of the same name. While not every song title is copyrighted, this phrase definitely has a copyright behind it. You won’t see this phrase used as a slogan in an ad anytime soon.

“Super Bowl”

People watch the Super Bowl every year, and the phrase “Super Bowl” is used on a regular basis. However, a lot of people are surprised to learn that this phrase actually is trademarked. This is why so many ads about the Super Bowl say “Super Sunday,” “the big game,” or other phrases. The NFL has had to put a lot of effort into protecting this copyright.

Now that you’re more familiar with the famous phrases that are copyrighted, you have a better understanding of what can be copyrighted. People have been able to copyright all kinds of things, from phrases to words. It isn’t always easy to copyright something, but there are many different things that can be copyrighted.