The Trademark Blog
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- BIg Game Hunting
Sat, 10 Feb 2007 21:13:13 -0500 - The Thing On TV On Sunday Between, Uh, That Team And, Uh, The Other Ones
You know how the NFL polices the mark SUPER BOWL, as in, a store can't say 'Your Super Bowl Party Headquarters,' because, you know, people would be confused.
So stores would say "Your Big Game Headquarters" or "Buy some snacks for your Big Game Party"?
Well, check out this pending trademark application, currently in the opposition period:
THE BIG GAME
Goods and Services IC 016 posters, calendars, trading cards, series of non-fiction books relating to football; magazines relating to football, newsletters relating to football,notepads, stickers, bumper stickers, paper pennants; greeting cards; printed tickets to sports games and events; pens and pencils, note paper, wrapping paper, paper table cloths, paper napkins, printed paper party invitations, paper gift cards; paper party decorations, collectible cards; collectible card and memorabilia holders, souvenir programs for sports events
IC 028. toys and sporting goods, namely, plush toys, stuffed toy animals, play figures, golf balls, footballs, sport balls, toy banks, playing cards, Christmas tree ornaments
Standard Characters Claimed
Serial Number 78804122
Filing Date February 1, 2006
Original Filing Basis 1B
Published for Opposition January 23, 2007
Owner (APPLICANT) NFL Properties LLC LTD LIAB CO DELAWARE 280 Park Avenue New York NEW YORK 10017
Attorney of Record Paula M. Guibault
Word Mark THE BIG GAME
Goods and Services: Men's, women's and children's apparel, namely T-shirts, fleece tops, caps, headwear
IC 041. Entertainment services in the nature of football exhibitions; providing sports and entertainment information via a global computer network or a commercial on-line service
Serial Number 78803677Filing Date January 31, 2006
Current Filing Basis 1B
Original Filing Basis 1BPublished for Opposition January 23, 2007
Owner (APPLICANT) NFL Properties LLC LTD LIAB CO DELAWARE 280 Park Avemue New York NEW YORK 10017
Attorney of Record Paula M. Guibault
Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "GAME" APART FROM THE MARK AS SHOWN
Fri, 09 Feb 2007 17:39:46 -0500 - 'Hybrid' Hourly/Contingency Billing For IP Litigation
Our Firm recently represented an IP owner who alleged that goods sold
by defendant infringed its rights. A complaint was
filed in federal court. The matter was ultimately settled on
favorable terms.A matter such as this is amendable to being handled on a 'hybrid' billing basis. In such an
arrangement, representation is on a contingent recovery basis,
however the initial work is billed on an attorney/time basis. After
a billing threshold is reached, the parties can then re-negotiate the
billing arrangement (typically at a point by which discovery has
begun, and therefore the parties have more information on which to
base decisions as to the likelihood and scope of a financial recovery).The advantage to a client of such an arrangement is that it can
control its litigation expenses while exploring the strength of its
claim. The advantage to the outside firm is that it can moderate the
risk involved in undertaking a contingent fee arrangement.If you are an IP Owner and have questions regarding such arrangements, please contact us.
Fri, 09 Feb 2007 11:28:42 -0500 - Is This Use Of The Mark In Commerce?
MIT Ad Lab: The advent of Internet-based flight tracking technology enables an entirely new kind of skywriting. Gulfstream Aerospace sent up one of their $50M business jets today on an 8.5-hour test flight spanning 11 states for the sole purpose of leaving their mark on the Net in the form of a flight track that spells out 'GV' (the nickname of the Gulfstream V aircraft being flown) when viewed online."
Fri, 09 Feb 2007 09:23:59 -0500 - "Makers Of Enviga Drink Face False Advertising Suit"
CBS4Denver: "Makers Of Enviga Drink Face False Advertising Suit": Health watchdog group sues makers of ENVIGA drink for negative calorie claim for green tea extract/caffeinated beverage.
Thu, 08 Feb 2007 22:58:37 -0500 - Comparative Advertising
How Bill Gates feels about these ads.
Thu, 08 Feb 2007 22:27:46 -0500 - Lower Case J, Huh.
BlackBerry and BlackJack, now Blackjack, settled.
Thu, 08 Feb 2007 22:16:39 -0500 - HELLO AGGREGATORS - YOU MAY NOT USE THIS WORK FOR COMMERCIAL PURPOSES
The Trademark Blog (www.schwimmerlegal.com) is published under a Creative Commons 'Attribution-NonCommercial-NoDerivs 2.5' license. This means you are free to share, copy, distribute, display, and perform the work under the following conditions:
Attribution. You must attribute the work in the manner specified by the author or licensor. In this case, it means specifying that the name of the RSS Feed is The Trademark Blog with a live link to www.schwimmerlegal.com.
Noncommercial. You may not use this work for commercial purposes. SEE BELOW.
No Derivative Works. You may not alter, transform, or build upon this work.
For any reuse or distribution, you must make clear to others the license terms of this work.
Any of these conditions can be waived if you get permission from the copyright holder.
IF YOU REPRODUCE THE FULL TEXT OF THIS WEBSITE IN IMMEDIATE PROXIMITY TO ADVERTISING KEYED TO THE SUBJECT MATTER OF THE CONTENT OF THIS SITE, WHICH I DEFINE AS THE LAW AND LEGAL SERVICES, THEN I WILL VIEW THE PROVISION OF SUCH ADVERTISING AS USING THE WORK FOR COMMERCIAL PURPOSES, AND I WILL DEEM THAT TO BE A BREACH OF THIS LICENSE.
If you have a question about the terms of this license, please contact me at marty at schwimmerlegal dot com.
Thu, 08 Feb 2007 13:16:51 -0500 - Protection Of Personal Names In Domain Names
David Pecker is the chairman of American Media, Inc., publisher of, among others, National Enquirer and Weekly World News. 'Mr. Ferris' registered the domain name DAVIDPECKER.COM, had a PPC company host it, where it was keyed to ads for porn, because, according to the registrant, the word PECKER was in the domain name. Mr. Pecker brought a UDRP.
Although 'Mr. Ferris' (as he is identified in the decision) did not seem (to me) that he could establish a bona fide intent to use the name in conenction with an offering of goods or services, and altohugh there seemed to be plausible evidence of bad faith, the UDRP was denied. Complainant could not establish rights in his name as a trademark:
" A number of disputes under the Policy have involved personal names, as here, and the panels’ decisions have been mixed on the issue of whether the complainants have rights in the names. See, e.g., Tom Cruise v. Network Operations Center / Alberta Hot Rods, WIPO Case No. D2006-0560 (finding common law rights in “Tom Cruise”); and The Reverend Dr. Jerry Falwell and The Liberty Alliance v. Gary Cohn, Prolife.net, and God.info, WIPO Case No. D2002-0184 (finding no rights in “Jerry Falwell”).
Indeed, the issue of rights in personal names has generated enough cases and raised enough questions that the matter has been addressed by the “WIPO Overview of WIPO Panel Views on Selected UDRP Questions”, which states: “While the UDRP does not specifically protect personal names, in situations where an unregistered personal name is being used for trade or commerce, the complainant can establish common law trademark rights in the name.” “WIPO Overview of WIPO Panel Views on Selected UDRP Questions”, paragraph 1.6, “http://arbiter.wipo.int/domains/search/overview/index.html” (visited January 15, 2007).
. . .
In this case, Complainant has provided no evidence of his rights in the Disputed Domain Name other than broad assertions that he “is known nationally and internationally by the name David Pecker and his high profile name is linked inextricably with AMI and is cited frequently by the media”, and an affidavit from AMI’s assistant general counsel that Complainant “possesses a strong common law service mark in his name by virtue of his position as being one of the leaders in the publishing industry… David Pecker’s personal fame and reputation have caused his name, as a leader in the publishing industry and as Chairman and CEO of AMI, to acquire a secondary meaning in the industry. Complainant’s name is used to promote AMI and the public understands his name as referring to AMI”. While these statements may well be true, it is nevertheless incumbent on a complainant, except in the most obvious cases, to provide evidence in support of a claim to rights in a personal name for the purposes of the Policy. . . . It is also unclear to the Panel on the evidence provided whether, as required by the Policy in such cases, Mr. Pecker “has ever used his personal name for the purpose of advertising or promoting his business or for the sale of any goods or services”. Joacim Bruus-Jensen v. John Adamsen, WIPO Case No. D2004-0458.
. . .
In light of the above, the Panel is not convinced, based on the limited record before it, that Complainant has established rights in the name “David Pecker” for the purpose of this proceeding. Therefore, the Panel finds that Complainant has not succeeded in proving the first element of the Policy.
[HOWEVER]
Complainant’s lack of success in this proceeding in proving its rights in the name “David Pecker” does not necessarily mean that Complainant has no remedy. “He may have claims under the Anticybersquatting Consumer Protection Act (‘ACPA’), which expressly provides for protection of personal names, or perhaps his actions lie in tort. Complainant is free to pursue his claims in U.S. courts.” The Reverend Dr. Jerry Falwell and The Liberty Alliance v. Gary Cohn, Prolife.net, and God.info, WIPO Case No. D2002-0184.
Note: Complainant has indicated he is considering an ACPA proceeding.
Comment: Entertainers usually fare better in UDRPs than well-known executives, as it tends to be easer for them to show, in the absence of a registration, that their names function as common law trademarks for the entertainment services they provide. That should be some comfort for PETER O'TOOLE.
Thu, 08 Feb 2007 12:51:13 -0500 - Claiming Ownership In A Viral Video
New TeeVee: Legend of Bridezilla: You Can't Own a YouTube Hit (discussing multiple claims of ownership, copying and unauthorized sale of videos on YouTube).
Wed, 07 Feb 2007 10:23:33 -0500 - VIAGRA v. MIGHTY BROTHER In China
Reuters: Pfizer appeals against Viagra trademark ruling in China:
"Pfizer Inc. has filed an appeal after losing a lawsuit over the Chinese name for its impotence treatment Viagra, the U.S. drugmaker said in a statement on Wednesday.
Pfizer, the world's largest drugmaker, sued a Chinese firm over its usage of the brand "Wei Ge" or "Mighty Brother" in November 2005, but lost the case last month, Pfizer said."
While Pfizer markets the anti-impotence pill as Wan Ai Ke in China, it is commonly called Wei Ge by the public (via BBC).
Wed, 07 Feb 2007 10:13:06 -0500 - Steve Jobs: Thoughts On Music
Steve Jobs: Thoughts on Music
"So if the music companies are selling over 90 percent of their music DRM-free, what benefits do they get from selling the remaining small percentage of their music encumbered with a DRM system? There appear to be none. If anything, the technical expertise and overhead required to create, operate and update a DRM system has limited the number of participants selling DRM protected music. If such requirements were removed, the music industry might experience an influx of new companies willing to invest in innovative new stores and players. This can only be seen as a positive by the music companies."
Tue, 06 Feb 2007 22:49:02 -0500 - SDNY Rules On What Shatner And Simpson Meant By 'Best'
DirecTV ran ads promoting its satellite TV service featuring William Shatner in one ad and Jessica Simpson in another (Shatner clip and background here). In the Simpson ad, the claim is made that DirecTV provides the best picutrem and the narrator states ". . .For an HD Picture that can't be beat, get DirecTV." Time Warner sued in the Southern District of New York in December, arguing that because the HD quality of both cable and satellite HD service is equivalent, the claim that DirecTV's picture is the best, is literally false. DirecTV argued that the claim that the picture was the 'best' referred to the signal for all channels, including non-HD ones.
Held: Viewing the commercial in its entirety, the claim that the picture was the 'best' had to be interpreted in the context that the entire ad focuses exclusively on HD channels, and therefore the claim that the picture was the 'best' was literally false. The commercials were enjoined.
Time Warner Cable, Inc. v. DirecTV, 06-CV-14245 (SDNY Feb 5, 2007) (Swain, J). Email me for a copy of the order (too large to upload).
Tue, 06 Feb 2007 15:05:29 -0500 - First Ever Destruction Of Counterfeit Goods In Serbia
SD PETOSEVIC: "Fake NIKE Destroyed In Serbia."
"According to the Customs Authorities, one of the major obstacles to destruction was the lack of suitable facilities in Serbia for destroying plastics, rubbers and other similar materials in an environmentally friendly way . . . 13,000 pairs of counterfeit running shoes, bearing the trademarks of NIKE and DEISEL, were destroyed in one day at the State waste facilities. Instead of burning the running shoes, as was done in other countries, the shoes were cut into small pieces by a large machine used for destroying tires. The method had the approval of the Serbian Ministry of Environment, as is required under the law."
English translation of Serbia's Trademark Law.
Tue, 06 Feb 2007 11:47:36 -0500 - 11th Circuit: Effect Of Rejection of Copyright Assignment Under Bankruptcy Code
Thompkins v. Lil' Joe Records, 05-10143 (11th Cir. Feb. 5 2007):
"This appeal requires us to consider what happens when a debtor-in-
possession in a Chapter 11 bankruptcy case, who negotiated the purchase of
copyrights prior to the bankruptcy proceeding, later uses the bankruptcy code to
reject those contracts that transferred ownership of the copyrights to the debtor.
Our resolution of that question determines the outcome of much of this suit by a
rap artist who created the works giving rise to the copyrights in question. The
artist sold copyrights in his works to a music recording company in exchange for a
recording contract that entitled the artist to future royalties. The recording
company later went bankrupt, becoming the debtor-in-possession. In confirming
the debtor’s reorganization plan, the bankruptcy court ordered that all of the
debtor’s contracts with the artist be rejected under the bankruptcy code and the
copyrights sold to a rival recording company and its owner, two of the defendants
in the instant case.Years later, the artist sued the defendants, alleging that they did not actually
gain ownership of the copyrights through the bankruptcy, or if they did, they now
owe him royalties. Based on that premise, the artist asserts numerous claims
sounding in federal and state law. The district court granted summary judgment in
favor of the defendants on all claims, and for the reasons set forth below, we
affirm. "Rationale: Pre-bankruptcy rejection of the copyright assignment by the debtor as an 'executory contract' (one that had not been completely executed) does not act as a recission of the contract (which would have returned ownership of the copyright to the creditor), but instead is merely a breach by the debtor, and the payments owing under the assignment, become an unsecured claim.
UPDATE: Prof Patry: 2 Live Bankrupt.
Tue, 06 Feb 2007 11:12:20 -0500
