On May 20, 2019, the Supreme Court answered the longstanding question of what happens to a licensee’s right to use a trademark under a license agreement if a bankrupt licensor rejects the license agreement. The Court held that a licensor’s ability to reject a license agreement does not extinguish licensee’s rights under the trademark license and therefore, the licensee may continue to use the trademark under the terms of the license agreement. Continue reading
Registration is Required Before Suing for Copyright Infringement
The United States Supreme Court held in Fourth Estate Public Benefit Corp v. Wallstreet.com, LLC, that the Copyright Office must either issue a (1) copyright registration certificate or (2) refuse to register a copyright before a copyright owner can sue for copyright infringement.
Prior to this decision, there was a split among the circuits concerning the interpretation of the first sentence of Section 411(a) of the Copyright Act which states, “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”
Continue readingDuped by Goop
Before making health and wellness claims about products, companies should make sure the claims they are asserting are accurate. Accurate does not mean that customers stand by the product and agree with the claims — the asserted claims must be backed by science. If companies are not careful, they could face a false advertising suit. Continue reading
The Use of Proper Disclaimers in Ads
We review many ads that contain very prominent headlines designed to catch the consumer’s attention and draw her into the ad to buy the advertised product. You might ask, “What good is an ad that does not contain a prominent headline, intended to attract attention and draw in the consumer to purchase the advertised product?” Fair question.
But from time to time we see ads that really do not deliver what they purport to offer to the consumer; ads that employ both a bold headline to suck in the consumer and a disclaimer of the offered deal in the fine print, not proximate to the headline, to tell the consumer that what is advertised is not going to be provided. For example, a headline that offers a savings of 20% OFF EVERYTHING IN THE CATALOG, when, in fact, that ad contains a disclaimer, buried at the bottom of the ad in fine print that not “everything in the catalog” is 20% off; “restrictions apply.” Continue reading
Monkey See, Monkey Do, But Monkey Can’t Sue
The Ninth Circuit recently ruled in its case concerning monkey selfie photographs.
As many remember, in 2011, while visiting an Indonesian rainforest, nature photographer David Slater left his camera unattended. According to Slater, a monkey known as Naruto, picked up Slater’s camera and took multiple “selfies”. The selfies went viral.
After Slater used the photographs in a book that he published, PETA sued Slater for infringing the monkey’s copyright. The questions became: Does PETA have standing to sue on behalf of Naruto? If so, is a monkey an author for purposes of the Copyright Act of 1976?
Update: Is Pandora PayPal?
In August of last year, I wrote a blog post analyzing the likelihood of confusion factors as applied to the trademark infringement claim that PayPal filed against Pandora based on Pandora’s blue “P” logo.
In November the parties reached a settlement agreement and PayPal dismissed the lawsuit against Pandora. No details of the settlement were announced.
Recently I noticed what I thought was a new app on my iPhone; but it wasn’t a new app — it was Pandora’s app with a new logo design. If you have the Pandora music app on your smart phone, you also may have noticed that Pandora’s logo is quite different than it was before (I like it).
I can only speculate as to what the settlement agreement between Pandora and PayPal says, as it is likely confidential, but it is common in settlement agreements concerning trademark disputes that the alleged infringer is given a certain amount of time to phase out an infringing mark and rebrand. Perhaps that is what happened here.
Avoiding Copyright Claims When Using Creative Commons Licenses
A friend recently called about a letter she had received claiming that she was infringing a photographer’s copyrights in an image she had used in her company’s website and social media sites. In addition to requiring that she cease use of the image, the letter demanded payment of several thousand dollars for the alleged unauthorized use of the photograph. My friend explained that the image was being used under a Creative Commons license, so she didn’t understand what basis there could be for the photographer’s infringement claim.
Sometimes, Lighter is Better
Sometimes four eyes are better than two; and six are even better. This is how we feel when clearing ads for our clients, hopefully before they are presented to their clients, the advertisers.
There are really two things we want to apply accurately: The law and common sense. Just because an ad is legal does not mean it should be published. The idea that numerous people should review the ad is to address the sensitivities (or lack thereof) that some people may have, in which case a horribly embarrassing, and financially damaging ad, may be published.
Take the latest example, an ad for Heineken Light beer. In it, a bartender slides a bottle of Heineken Light towards a woman. The bottle passes several people of color before reaching a paler skinned woman. The tagline: SOMETIMES, LIGHTER IS BETTER. Continue reading