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ly ordered or commissioned if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire while i express no opinion on the merits of google s analysis of whether garcia was an employee using the multifactor ccnv test garcia s claim would be more credible if garcia s lawyers spent less time being wrong posted by rebecca tushnet at 12 57 pm 1 comment email this blogthis share to x share to facebook share to pinterest labels copyright saturday november 24 2012 kids as less careful consumers this is in the doctrine but it s a terrible lie more credulous consumers yes but when it comes to brand awareness kids are exquisitely sensitive my son received a party favor from this company what did you get i asked him a pezzy thing but not pez he immediately responded who knew there was more than one brand of this thing posted by rebecca tushnet at 5 10 pm no comments email this blogthis share to x share to facebook share to pinterest labels trademark thursday november 22 2012 math and advertising over at the informative all about advertising law blog from venable the authors ask what does a lifetime supply really mean they describe one calculation method that as described seems obviously wrong to me for the gumball com promotion the company took the average life expectancy of a u s citizen subtracted it by 18 the minimum age of entry and multiplied the difference by 365 representing one gumball per day though the us is a low infant mortality nation and the final number doesn t differ much the proper calculation is life expectancy at age 18 which isn t the same as life expectancy at age 0 18 science is the lawyers friend posted by rebecca tushnet at 9 50 am 1 comment email this blogthis share to x share to facebook share to pinterest labels advertising wednesday november 21 2012 reproduction and accuracy the art of reproduction has taken images of famous artworks from across the web and created mosaics to show variations in color as well as framing here s 8 kens and roberts after mapplethorpe s ken moody and robert sherman posted by rebecca tushnet at 7 20 pm no comments email this blogthis share to x share to facebook share to pinterest labels art law copying copyright the hollywood reporter on tm claims against films one of the key sentences nevertheless for a number of technical legal reasons some attorneys say that trademarks now serve as better weapons in court than more traditional copyrights harder to defeat at the early stages of a lawsuit unfortunately the story suggests hollywood is learning the wrong lesson try to interfere with legitimate uses such as uses of public domain works or works whose copyright has been recaptured by the original author using termination of transfer with trademark claims let s hope that part is wrong posted by rebecca tushnet at 2 25 pm no comments email this blogthis share to x share to facebook share to pinterest labels copyright trademark tuesday november 20 2012 self dilution so what happens if the cake you serve made using this coca cola bottle shaped pan is terrible also browsing the coca cola rewards pages suggests that there s no such thing as an unlicenseable product a diet coke scarf a diet coke makeup bag gender is also a big thing you can t get a coke makeup bag but you can get a coke zero apron to go with your chips n dip posted by rebecca tushnet at 3 01 pm 1 comment email this blogthis share to x share to facebook share to pinterest labels dilution trademark monday november 19 2012 pictures or it s not false advertising the ftc as part of its efforts to increase compliance with rules around mortgage ads disclosures has released some mock ads to show what deceptive noncompliant advertising looks like in the past the ftc has also used mock ads to illustrate good and bad disclosures i think this is a helpful way to give concrete guidance going beyond the traditional focus on the words alone posted by rebecca tushnet at 12 42 pm no comments email this blogthis share to x share to facebook share to pinterest labels advertising false advertising ftc original claim as false advertising zobmondo entertainment llc v imagination intern corp 2009 wl 8714439 c d cal this opinion is old but westlaw just coughed it up perhaps because of a related jury finding that zombondo infringed the would you rather mark and was liable for significant damages i m going to write about the older opinion because it addresses an issue near and dear to my heart on these facts in 1998 zobmondo introduced the first board game based on the traditional conversational game known as would you rather imagination later debuted its own board game titled justin david s original would you rather board game zobmondo alleged that original constituted false advertising imagination moved to dismiss based on dastar and the court denied the motion zobmondo pled that original falsely conveys that imagination s game was earliest first in time when it wasn t the claim was not about who was responsible for originating the concept of the game but rather who was the first to make a would you rather board game thus this was a claim of alleged misrepresentation about the production of the physical good also it was a 43 a 1 b claim as preserved by dastar no interaction with copyright or patent law was implicated nor would any determination be required of who came up with the idea of the board game in addition the court found that original was not as a matter of law puffery who made the first would you rather board game was not subjective and was falsifiable but imagination was free to raise puffery later if the evidence showed that no one would ascribe that particular meaning to original in this context posted by rebecca tushnet at 7 47 am no comments email this blogthis share to x share to facebook share to pinterest labels dastar false advertising friday november 16 2012 referential uses don t cause blurring an example i love clever ads that use another noncompeting entity s trademark to make a point about the advertiser s own services tracfone s even viagra couldn t make this hard touting the simplicity of its calling plan is a personal favorite and i just came across this actual litigated case involving one jennifer leather s only revlon has more colors revlon consumer products corp v jennifer leather broadway inc 858 f supp 1268 s d n y 1994 given the age of the case it s perhaps not surprising that there s no initial interest confusion argument defendant prevailed even against revlon s state dilution claim because revlon couldn t show confusion and because there was no incongruity the court could see between the meaning of revlon sought by revlon and the meaning of revlon invoked by jennifer leather posted by rebecca tushnet at 2 36 pm no comments email this blogthis share to x share to facebook share to pinterest labels dilution trademark thursday november 15 2012 boop oop a do over fleischer studios inc v a v e l a inc no 2 06 cv 06229 c d cal nov 14 2012 the 9 th circuit withdrew its first opinion in this case substituting one that affirmed the dismissal of fleischer s copyright claims and trademark claims based on the image of betty boop while remanding for more clarification of the district court s holding on the betty boop word mark fleischer the successor in name but not in interest to the original fleischer studios had a registered trademark in betty boop the court of appeals reversed the ruling that the word mark s fractured ownership history precluded secondary meaning finding a triable issue of fact the district court has now provided that clarification holding that defendants use of betty boop was in context aesthetically functional nonconfusing and fair use defendants like fleischer license betty boop merchandise defendants merchandise incorporates elements from vintage movie posters correction some of the copyright status is disputed but fleischer isn t the copyright owner and has no standing to object on copyright grounds per previous rulings these elements include both images of betty boop and the words betty boop while the original court of appeals ruling was withdrawn the district court still found its reasoning sound and applicable fleischer argued that there s no such thing as aesthetic functionality in the 9 th circuit while the court here acknowledged some confusion it found that au tomotive gold made clear that the doctrine while limited was nevertheless viable and job s daughters was still good law that case held that trademark law does not prevent a person from copying so called functional features of a product which constitute the actual benefit that the consumer wishes to purchase as distinguished from an assurance that a particular entity made sponsored or endorsed a product to distinguish between these two poles the court must examine the goods themselves the defendant s merchandising practices and evidence of consumer reaction au tomotive gold set out a two step test the court must first ask whether an allegedly significant non trademark function is essential to the use or purpose of the article or affects its cost or quality if that s not present the court should still determine whether trademark protection would impose a significant non reputation related competitive disadvantage the district court examined the products merchandising practices and evidence of consumer reaction in the record and found that as a matter of law defendants use was not a trademark use as in job s daughters the defendants used the words betty boop prominently on their products including t shirts bearing movie poster images dolls and packaging adapted from movie posters betty boop was a decorative component part and parcel of the aesthetic design of those goods defendants never labeled their merchandise official or otherwise indicated that it was sponsored by fleischer but rather identified defendants as the source given the combination of betty boop as artistic design element and defendants own source identification betty boop simply couldn t be seen as source identifying unsurprisingly fleischer didn t present a single instance of consumer confusion as to origin or sponsorship apparently treating trademark use and aesthetic functionality as separate but related inquiries the court then held that these same considerations rendered the use of the words betty boop aesthetically functional though the t shirts would still be wearable without the words and the dolls would still be toys and would function in that sense the court didn t address whether this would affect the quality of the article though i think it plainly would protection of the feature as a trademark would impose a significant non reputation related competitive disadvantage on defendants defendants are entitled to market goods with betty boop s image but those products would be less marketable than the same product without the name because betty boop names the famous character depicted on the goods movie posters this is also understandable as a genericity ruling for example one doll s package has imagery from a betty boop movie poster and a product tag that s a miniature reproduction of the poster the poster says adolph zukor presents betty boop with henry the funniest living american removing the words betty boop from these items would render the textual aspect of the poster reproductions incomplete and the remaining words would be nonsensical it would be obvious to the average consumer that such merchandise would be missing something clearly merchandise that is missing something is less marketable and therefore at a competitive disadvantage also given that the use wasn t source identifying and didn t trade on any source s reputation as opposed to the reputation of betty boop which defendants were free to provide barring defendants from using the words would impose a significant non reputation related competitive disadvantage in the alternative the use was descriptive fair use it referred to a characteristic of defendants products they featured betty boop whether a use is otherwise than as a mark depends on several factors in the 9 th circuit including whether the term is used to attract public attention and whether the user took precautions such as labeling to minimize the risk that the term would be used in its trademark sense here the use was in connection with products bearing betty boop s image it is extremely unlikely that a prospective consumer would understand those words as identifying the source of the goods rather than merely naming the character and defendants indicated themselves as the source as a matter of law this was use other than as a mark likewise there was no triable issue on whether defendants were using the words in their descriptive sense there were no other words available to describe betty boop and the words self evidently describe the goods this result could also have been achieved with nominative fair use though that would presuppose the validity of plaintiff s mark given that defendants had the right to use the character despite fleischer s objection they must necessarily therefore be able to identify the character by name and no jury could find bad faith in the sense of intent to capitalize on fleischer s goodwill because defendants weren t using the mark as a source identifier finally just in case you were worried there was no triable issue of fact on likely confusion the court didn t run through the sleekcraft factors because of the absence of trademark use that test assumes that the defendant s use is a trademark use referring for example to the similarity of the marks and defendant s intent in using the mark here there was no source identifying use and thus no way that the use could create the impression that the goods originated with anyone in particular fleischer invoked the doctrine of legal equivalents words and pictures that have the same meaning can be confusingly similar thus fleischer argued the court should find that images of betty boop infringed the betty boop word marks yes they were equivalents but that didn t help fleischer since there was still a trademark use requirement and fleischer didn t argue much less show that defendants use of the betty boop image was a trademark use she didn t look the same on all of the goods so that was evidence against use as a mark along with all the reasons that defendants use of the name wasn t source identifying posted by rebecca tushnet at 5 11 pm 2 comments email this blogthis share to x share to facebook share to pinterest labels copyright trademark wednesday november 14 2012 descriptive trademark means uniqueness claim wasn t false continental datalabel inc v avery dennison corp 2012 wl 5467667 n d ill continental and avery compete in the market for self adhesive address labels continental sued for patent infringement unfair competition false advertising and tortious interference with 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