Blog Archives - Page 4 of 8 - Kunkle Trademark and Legal

Top 10 Lists

September 9, 2013January 31, 2018 by admin Comment Closed

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,...

Sometimes They Don’t Quite Get It.

June 6, 2013February 15, 2017 by admin Comment Closed

Courts sometime get the right answer for the wrong reason. In a recent case in the US Tenth Circuit (Enterprise Management Limited, Inc. v. Warrick); the court discussed a diagram of a basic idea which was the basis of the defendant copying a similar diagram to explain the same concepts. While the end result was correct in this circumstance, the reasoning used falls short. Where concepts or ideas are being presented there is a general rule that expression and ideas are sometimes merged and therefore the copying is allowed to not allow the copyright owner to weld exclusive rights to the idea. The Enterprise Management court articulated this by noting: “In short, the copyright law is not a patent law: it protects the expression of ideas rather than the underlying ideas themselves. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-45 (1991) (“The most fundamental axiom of copyright law is that no author may copyright his ideas or the...

France – Where Everyone Has the Right to Privacy

November 14, 2012 by admin Comment Closed

Article 9 of the French Civil Code provides that: "everyone has the right to privacy." A little while back Kate Middleton was spotted (via a long range lens) topless at a private residence in France. The resulting photos ended up in the French magazine Closer. The ensuing outrage by the British and the French demonstrates an important issue when works of authorship cross international borders: namely, the U.S. expectations of privacy and Freedom of Speech laws are not embraced in the same ways in other nations and cultures. For example, the French maintain some of the strictest privacy laws in world. These laws leave little room for arguments of news worthiness. In fact the French go so far as to prohibit "theft of personal image," which can theoretically be used to ban the taking of photos of individuals even in public spaces. While the U.S. states have many comparable types of laws, the extent of the French laws is illustrated by the...

Of Flesh Eaters and Copyright

October 10, 2012October 31, 2017 by admin Comment Closed

How Copyright Law Influenced Halloween Have you ever seen Night of the Flesh Eaters? Probably, though you probably know it as the 1968 George Romero classic Night of the Living Dead. Now ask yourself why have you seen it (besides it being a fun little romp about zombies) – because it has been pervasively shown on broadcast television and other media for decades. While we now view this film as a classic, when it came out it was simply a B movie. The reason it received so much initial air time, however, probably had more to do with the formalities of copyright law than the artistic vision of George A. Romero and John Russo. Up until March 1, 1989, in order to maintain a copyright in a film, a copyright notice was required somewhere on the work – in films this usually consisted of a listing on the title card showing the copyright symbol, the year, and the owner’s name. When the...

Uncle Fester and Justin Bieber

March 1, 2012 by admin Comment Closed

Well before before Uncle Fester shaved his head and joined the Addams Family, the actor Jackie Coogan was appearing in silent film alongside Charlie Chaplin. Unfortunately for Jackie, his parents spent all the money from his work and when he turned 18 he had little to show for his time on stage and screen. The spectacle of a child star of Coogan's stature being exploited in that way led to a California Law requiring that child performers be paid in such a way that around 15% of their pay is automatically placed into an untouchable trust fund that only they will be able to access when they turn 18 - many states around the country now have similar laws and they are typically referred to as Coogan Laws. It is estimated that Bieber is worth around 100 million dollars. While its impossible to know how much of that is held in a Coogan Trust, it is likely that upon his...

Linsane Trademarks

February 24, 2012 by admin Comment Closed

Since February 7th the Trademark office has received eight trademark applications for the term LINSANITY. The products identified in applications range from clothing, jewelry, and sport drinks, to eyeglasses and cell phone covers. The only problem is only one of these applications is on behalf of the Knick's Jeremy Lin (Serial 85541426); and it is a basic premise of trademark law that you can not register the name of a living person without that person's written consent. Perhaps more concerning, however, is the attempt of people who know him to cash in on his name - one of the applications is by Roger Montgomery for the purpose of "Business management of sports people" (Serial 85542514) and who the Washington Post identifies as Lin's own agent. While some of the applicants may try to argue that it is purely coincidental that they want to register the name in the middle of Mr. Lin's hot streak ("by Linsanity, I mean LENS...

The Copyright Dilimma for Pinterest

February 23, 2012February 23, 2017 by admin Comment Closed

In case you’ve been living under a digital rock, one of the currently hot internet properties is pinterest.com. Pinterest is a social media platform that allows users to skim pictures from third-party websites and to post them along with a link back to the original website that the image originally appeared on – sort of like a much more streamlined & robust method of saving bookmarks/favorites. Unlike Facebook or some of the other social media sites which encourage users to come-up with their own content, Pinterest is largely based on a model of users creating collections of photos from third-parties. This model creates a bit of a dilemma for the copyright holder because it is in essence a model based on using their photos to create traffic to someone else’s website. Proponents of Pinterest argue that it isn’t really diverting traffic, but rather increasing traffic to business who may have images represented on user’s “boards.” This is similar to the...

The Three Second Rule of Copyright

February 14, 2012 by admin Comment Closed

At dinner the other night, a friend mentioned she had recently seen a performance of Broadway songs at a fairly well known theater here in Minneapolis/ St Paul. She mentioned that during the performance the host for the night compared the first seven notes of the iconic Somewhere over the Rainbow to notes played during Wicked's Unlimited. The host explained that only seven notes where used because "if you use eight notes the copyright owner can come after you." I was curious about this statement and looked a little closer and found out that in fact that is the story that has been told by the composer Stephen Schwartz. While making a nice antidote and joke, unfortunately the story is simply not true. Much like the Three Second dropped food rule (if its on the ground less than 3 seconds its safe to eat), the eight note rule is similarly not true, and (hopefully) said just in jest. While copyright Fair...

Limitation on Color Trademarks in the Fashion Industry

November 9, 2011September 12, 2019 by admin Comment Closed

In 1992, shoemaker Christian Louboutin began using red lacquer soles on some of its shoes. In 2008, the red soles were registered as mark in the US Patent and Trademark Office, and on January 1, 2008, number 3, 361,597, the “red sole mark” came to life. In 2012 Louboutin sued Yves St. Laurent ("YSL"). They were seeing red (pun intended) over the recent Yves St. Laurent 2011 Resort collection, which included red-soled shoes, the Louboutin signature brand detail. Louboutin filed a trademark action against YSL, which YSL prominently countered with a counter-suit seeking cancellation of the Louboutin trademark registration. Louboutin responded with a request for a preliminary injunction temporarily preventing YSL from selling the shoes until the dispute was settled. The district court initially denied Loboutin's request largely on the basis that . . ."in the fashion industry color serves ornamental and aesthetic functions vital to robust competition . . . However, “Color alone “ sometimes ” may be protectable as a...

Minimizing Your Risk Related to Administrative Tasks and Payroll

August 15, 2011February 15, 2017 by admin Comment Closed

Thinking of adding an employee but not sure how to handle the day to day administrative issues related to pay and insurance? Employees are a responsibility for any business. When you take one on, they may be there to make you money, but in return you have an obligation to treat them right. As a result there are a variety of administrative and bureaucratic rules to help make sure things go smoothly. One option to consider to avoid this extra burden is to hire a reputable payroll services. On time payment and record keeping: While it may seem obvious, small business owners often forget that their employees expect to be paid on a regular schedule and may not care that the boss is on vacation and hasn't gotten around to writing out the checks. Services handle this for their customers automatically and will mail out checks or make the appropriate online deposits upon request. Withholding: One major issue overlooked by many businesses...