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ignificant 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 its dealings with staples and office depot the patent claims were stayed pending reexamination the court here granted summary judgment to avery on the lanham act and tortious interference claims in 2006 the parties began to market easier to peel labels avery s easy peel and continental s fastply each product s backing sheet was perforated allowing them to be torn into columns that exposed the edges of the labels this enabled easier peeling than traditional backing sheets did in 2008 avery introduced its next generation of easy peel labels which could be folded rather than torn and thus a partially used sheet could be flattened and even re run through a printer avery s instructions advised users not to put a sheet through a printer more than once but many consumers did so and staples saw this capability as an advantage rather than revamping the fastply labels continental tested them and concluded that they could also be folded to make the labels pop up without needing to be torn avery s 2008 advertising materials claimed only avery label sheets bend to expose the pop up edge and only avery offers the pop up edge for fast peeling just bend the sheet to expose the label edge avery also applied to register pop up edge with the pto its application was granted in 2010 and continental didn t challenge its validity continental unsuccessfully sought to place its products in staples and office depot allegedly because of avery s threats to sue for patent infringement despite not having relevant patents at the time a patent was later granted two continental officers were told by staples and office depot representatives that those retailers feared a patent suit from avery as did others in 2009 an avery rep sent an email to staples stating once the patents are granted avery will aggressively defend its ip intellectual property and an internal avery document from mid 2008 referred to the easy peel labels as a patented avery exclusive well before avery had actually been granted a patent the lanham act claim was that the only avery statements were false because fastply labels could also be folded to expose their edges without being torn the court began by quoting the unfortunate intent heavy language from schering plough literal falsehood is bald faced egregious undeniable over the top the proper domain of literal falsity as a doctrine that dispenses with proof that anyone was misled or likely to be misled is the patently false statement that means what it says to any linguistically competent person plainly the only avery claims were that only avery had something called the pop up edge but what was that the generic feature of bendability so that edges pop up which for purposes of this motion the court assumed that fastply also possessed thus making the claim false or instead a trademarked feature the particular version of that function carrying the pop up edge name which would be true this is where falsity by necessary implication would be very useful the only avery claim doesn t make sense as a reason to buy unless the claim is about functionality why would a consumer care that the name of avery s implementation of the functional feature is trademarked but the court didn t agree and instead held that no reasonable jury could find that avery was referring to the function instead of the mark lenscrafters inc v vision world inc 943 f supp 1481 d minn 1996 supported this the court there held that claims to be the exclusive supplier of featherwate lenses wasn t false even though identically composed unbranded lenses were widely available and featherwate was just as descriptive as pop up edge was analogizing to a far more famous mark avery argued that while a mcdonald s ad claiming only mcdonald s serves hamburgers with quarter pound patties would be literally false an ad that the quarter pounder hamburger is available only at mcdonald s would not be false i think this analogy proves the exact opposite the non tm claimed parts of the statements only avery label sheets bend to expose the pop up edge and only avery offers the pop up edge for fast peeling just bend the sheet to expose the label edge explicitly refer to the functionality of the pop up edge thus directing consumers to think about the descriptive aspects of the phrase even if it also has trademark significance similar to the false quarter pound patties likewise note that quarter pounder not quarter pounder hamburger is the mark for mcdonald s while for avery the claimed mark states the whole product feature again making it more likely that consumers would understand the claim to encompass the feature and not just its source in other words the fact that avery s mark is for a feature not for a product or service as a whole the way a traditional trademark is may well affect consumer understanding since no reasonable jury could find literal falsity the court turned to misleadingness continental offered an expert survey of likely users of self adhesive labels the test cell used the only avery statements and the control cell used the same statements without only and unique the questions what does this sentence communicate or say regarding how many label companies offer this feature read each possible answer and then choose one ______ no label company offers this feature ______ just one label company offers this feature ______ two label companies offer this feature ______ three or more label companies offer this feature ______ this sentence does not say how many label companies offer this feature in the test cell 82 1 or 82 5 selected just one label company offers this feature while 34 4 and 36 7 of the control group did so but the court found that this survey just proved the unremarkable proposition that only and unique convey exclusivity to many consumers but the pertinent question was not exclusivity but exclusivity as to what and the survey didn t answer that question thus there was no evidence of misleadingness and summary judgment was granted to avery continental also lost its tortious interference claim because it couldn t show an intentional and unjustified interference that induced or caused the loss of a business expectancy had avery claimed to hold a patent not just a pending patent application or had it claimed that it was going to sue for infringement of its patent application those statements would have been false and unjustified but continental didn t provide enough admissible evidence from which a reasonable jury could find that avery actually made either of those statements continental s witnesses testified that staples and office depot believed that avery rather than continental had a patent on the product but their testimony was hearsay avery s direct statement which was in essence that it would sue anyone it saw as an infringer once its patent was granted wasn t false and in fact federal patent law would preempt any state law imposing liability for warning of potential patent litigation without bad faith and there was no evidence of bad faith posted by rebecca tushnet at 11 52 am no comments email this blogthis share to x share to facebook share to pinterest labels false advertising surveys tortious interference tuesday november 13 2012 oral music deal leads to multiple claims and dastar problems ward v mitchell 2012 wl 5301475 n d cal matthew ward alleged that he was a famous musical recording artist and songwriter in 2001 he wrote fifteen compositions for an album end of amnesia released by defendants he alleged that mitchell repeatedly represented that defendants would enter into a written agreement to pay him for the right to use the sound recordings and musical works in end of amnesia but never did so still ward created sound recordings of his compositions and allowed defendants to hold the masters pending a written agreement ward registered the copyrights in 2005 ward initially filed a state court lawsuit alleging that defendants were selling his material without a license then dismissed and refiled in federal court when it was pointed out that copyright claims are subject to exclusive federal jurisdiction the specter haunting the claims here it seems to me is rano v sipa press 987 f 2d 580 9th cir 1993 which holds that even an oral nonexclusive license is not revocable until the 35 year period has passed in the absence of a different express or implied period while breach could entitle ward to terminate the license in the 9 th circuit he s otherwise out of luck the court rejected the argument that the entire claim was barred by the statute of limitations the complaint only sought damages for the last four years and damages from beyond that period would likely be barred but no determination needed to be made without a record ward also adequately pled a claim for breach of an oral contract including a promise to enter into a written agreement and a claim for fraud however the court also denied a request for judicial notice of a c d email from ward s attorney which if properly authenticated would be strong evidence against the fraud claim also it is worth no...
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