Copyright Cases: Mavrix Photographs, LLC v. LiveJournal, Inc.

Mavrix Photographs, LLC v. LiveJournal, Inc.  LiveJournal is a social media platform that displays photographs posted by users.  Maverix Photographs sued for copyright infringement of some of its photographs.  LiveJournal raised the defense that it was protected by the safe harbor provisions of the Digital Millennium Copyright Act (DMCA).  The district court agreed and dismissed the case on a summary judgment motion by LiveJournal. Appeal The appeals court (1) reversed the district court’s decision, instead finding that the safe harbor would apply if the photographs were posted at the direction of users. However, LiveJournal posted the photographs after a team of volunteer moderators, led by an employee,  reviewed and approved them. The court held that whether the photographs were posted at the direction of users depended on whether the acts of the moderators could be attributed to LiveJournal. Disagreeing with the district court, the panel held that the common law of agency applied to the LiveJournal's DMCA safe harbor defense. Because there were genuine...
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Contract Consideration – FAQ

What does it mean for a contract to be not enforceable because of a lack of consideration? Answer: In order for a contract to be enforceable, the mutual promises of the parties must be supported by "consideration." Considerations means each party gives something of value to the other.  The reason that the courts and legislatures generally require some form of consideration is to insure that the promises being made are not merely a casual statement, and accident, or gratuitous – in short – to make sure the people making the agreement really mean it. Consideration looks at whether the parties have assumed an obligation on the condition of an act or forbearance of another. Except in cases of employment matters, Minnesota courts generally do not look at the adequacy of the consideration being offered – only whether some consideration has been exchanged. For written agreements, the court presumes valid consideration. While adequacy of consideration is not usually analyzed, vague or indefinite terms...
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Benefits of a Federal Trademark Registration – FAQ

What are the benefits of a federal trademark registration? Answer: There are many benefits of a federal trademark registration, both direct and indirect.  Direct benefits are numerous and include: National protection of the mark; Ability to obtain injunctions stopping infringers; Ability to use the registration to apply for foreign trademark registrations; Greater access to the  federal court system; Assistance from the United States Custom in stopping counterfeit and infringing goods from importation; and Attorneys fees when proper notice has been attached to the goods or services. I In addition to these considerations, trademark registration provides indirect benefits in the form of being able to point to it when protecting marks used for social media accounts, protect against improper use in search engines, ability to obtain new domains in sunrise periods, and providing great leverage in UDRP and URS disputes against cyber-squatters. Why Provide these Benefits Providing these benefits serve two primary functions.  By granting these rights to trademark owners the government helps to incentivise business owners by...
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Trademark Registration Scam – FAQ

I filed a trademark application recently and suddenly I have been receiving papers from all these companies saying that I owe more money to finalize my trademark. Is this some kind of trademark registration scam? Answer: In December (2016) the Department of Justice announced that two men had pled guilty of a scamming owners of US trademark applicants. Through there company called the Trademark Compliance Center (TCC) and Trademark Compliance Office (TCO), the men, Artashes Darbinyan and Orbel Hakobyan, stole approximately $1.66 million from registrants and applicants of U.S. trademarks through a trademark registration scam by sending fraudulent solicitation for additional filing fees. The USPTO worked with California law enforcement in this case and takes a number of steps to fight solicitations from companies fraudulently promising to protect trademarks. These questionable solicitations have been growing problem, both nationally and globally over the years. To help combat this, the USPTO has taken a number of steps. 1) Each Office Action regarding an application includes...
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Ten Cute Cat Trademarks

Ten Cute Cat Trademarks

Because cats make everything more entertaining.  (search using (03.01.04)[DD]  and  (2)[MD]).  A sample of 10 recent applications for cat related trademarks for your viewing pleasure. 1.  Content Kitty (such a peaceful face)   2.  Lethal Kitty (HiYA!!)   3.  Hello Kitty (one of many recently filed applications)   4. Butt Kitty (Ok -  this one creeps me out a little)   5. Knitted Kitty (this one is for "knitted underwear" -'nuff said -cool design)   6. Hipster Kitty (jeez - everyone knows cats prefer the chevron)   7. Creepy Kitty (with dog overlord)   8. Masked Kitty (what possible advantage would a cat have trying to pretend he's a dog?)   9. Anthropomorphic Kitty (why no shoes on the hands??)   10.  Plain old Cute Kitty (just because)   ...
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Top 10 Lists

I was recently asked by an attorney friend about using the phrase “The Top Ten Reasons…” in relation to a top ten list (á la David Letterman) that she was planning on using in a marketing piece.  This wasn't a comic work meant to mimic the David Letterman version, but rather a serious piece meant to provide useful information regarding estate planning strategies.  So the question to me was whether she could use the “Top Ten List” format without running afoul of Letterman’s intellectual property. My response was that there was a very low probability of risk – the term “Top Ten List” is descriptive and therefore not generally protected by trademark unless it has acquired such distinctiveness that the term is pretty much only associated by one source.  While, in certain contexts it is undoubtedly a very famous list, it is hardly the only place in which you can find people putting together lists of things in quantities of 10. Further,...
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Tattoo Copyrights

Tattoo Copyrights

Can I Copyright my Tattoo? A while back someone asked me about writing a blog post on copyright law and tattoos. After thinking about it, I realized that the issue is one that provides a great opportunity to illustrate (no pun intended) some core concepts about copyright law that are often misunderstood by the general public and sometimes by creatives. At issue is who owns the copyright in that tat on your forearm. After all, a tattoo is really no different than other creative work and as long as it is an “original work of authorship” (Most likely) and “fixed in a tangible form” (most defiantly), US law states that the subject matter is subject to copyright protection. A person who originally creates something generally has the exclusive right to control how that “expression” is used by others – they can give it away, sell it, or just prevent anyone else from using it. Tats are no different. When a tattoo artist...
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Does the Twitter ToS dedicate everything you post to public domain?? – NO!

I use to say that it was a myth that if it was on the Internet it was free to use. While still a myth, photojournalist Daniel Morela may have reason to question whether this in fact still true. Morla was recently sued by Agence France Presse (AFP) for “antagonistic assertion of rights” for accusing AFP of violating his copyright in several photos taken following the January earthquake - Morela has counter sued for copyright infringement. AFP has asked for summary judgment that it did not infringe on Morela's copyrights (complaint). AFP's claims are interesting because, in part, they note that since Morela used Twitter to distribute the photos (which he did not - he used Twitpic), the Twitter Terms of Service (ToS) granting Twitter the right to distribute the photos should be extended to AFP as well. Besides the fact that AFP appears to have little understanding of the facts of their own case, this reading of the Twitter ToS...
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When is a farm boy just like any other farm boy?

When is a farm boy just like any other farm boy? That's the question at the heart of a recent Federal Circuit decision (Odom's Tennessee Pride Sausage, Inc. v. FF Acquisition, LLC, No. 09-1473) involving a decision by the USPTO to grant a trademark registration to FF Acquisitions (a SuperValu company) over the objection of Odom (a retail food conglomerate). Despite the fact that the registration in question was merely adding the body onto an already registered mark making up the torso of a farm boy (mark on the right), Odom was concerned that the mark was now likely to confuse consumers and opposed the registration, citing its own registrations. Even though Odom argued that there were other factors to be considered under the DuPont test for likelihood of confusion, the USPTO and the Circuit court summarily dispatched the complaint by noting that the registered marks differed in...
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FTC Endorsement Guidelines – Typicality Claims

Effective December 1, 2009, the Federal Trade Commission (FTC) has adopted new advisory guidelines concerning use of testimonials in advertising. These modifications and clarifications concerning FTC enforcement have raised concerns in many industries that rely heavily on testimonials as a large component of their marketing efforts.What are these guidelines about?The FTC is charged with enforcement of federal laws prohibiting deceptive trade practices – i.e. false advertising. To accomplish this mission, the FTC adopts rules and issues policy guidelines regarding the laws.Complete Bulletin available on KunkleLaw.comAudio from a recent interview with CoachingToys.com...
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