Copyright protects original works of authorship fixed in a tangible medium of expression. 17 U.S.C. §102(a). “Originality” and “authorship” require independent creation and a modicum (i.e. minimal level) of creativity. “Fixation” requires that a work be fixed in a tangible format in which it can be perceived, reproduced or communicated, either directly or with the aid of a machine or device — for example, a writing, recording, photo or video. Continue reading
Address Copyright Ownership Issues in Writing
It is hard to imagine a business that does not own or use an asset subject to copyright protection. Copyright protection extends to eight non-exclusive classes of works: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. 17 U.S.C. §102(a). Continue reading
An Email Can Constitute “Commercial Advertising and Promotion”
The United States Court of Appeals for the Fourth Circuit recently issued an unpublished opinion adopting a three-factor test for determining whether a communication is “commercial advertising or promotion” for purposes of a Lanham Act false advertising claim. It is unclear why this decision was not selected for publication. Continue reading
Dilution by Tarnishment
Confederate flags were not the only symbol used by white nationalists marching in Charlottesville, Virginia.
To the dismay of the Detroit Red Wings hockey team – so was their logo. Well almost.
On the left is the Detroit Red Wings logo; on the right is the white nationalist group’s logo:
image courtesy of CNN
The spokes in the wheel on the Detroit Right Wings’ logo were altered to resemble the Nazi SS lightning bolt.
The Detroit Red Wings quickly disavowed any affiliation:
“[t]he Detroit Red Wings vehemently disagree with and are not associated in any way with the event taking place today in Charlottesville, Va. The Red Wings believe that hockey is for everyone, and we celebrate the great diversity of our fan base and our nation. We are exploring every possible legal action as it pertains to the misuse of our logo in this disturbing demonstration.” Continue reading
Is Pandora PayPal?
Does Pandora’s single P mark infringe PayPal’s double P mark? PayPal says yes and filed a lawsuit claiming Pandora’s use of the single P mark causes confusion among consumers.
Every Federal circuit has adopted some form of the “likelihood of confusion” factors the Fourth Circuit articulated in George & Co. LLC v. Imagination Ent. Ltd., 575 F. 3d 383 (4th Cir. 2009). Applying those factors here to the facts as currently known in the PayPal, Inc. v. Pandora Media, Inc., 2017 WL 2289184 (S.D.N.Y.) case would go something like this:
Is the Plaintiff’s mark distinctive? Answer: Yes. Most consumers recognize the blue double P as PayPal’s logo.
Losing Trademark Rights by Abandonment
Copyrights and patents expire after a fixed term, but trademark rights will continue in perpetuity as long as a mark remains in use. Trademark rights are a “use it or lose it” proposition—if the marks are abandoned, the rights will be lost.
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