Month: March 2015

Uncle Sam adds new tactic to ‘notorious’ list

The U.S. Trade Representative recently released its annual Notorious Market List, which calls out markets where the infringing of intellectual property is most problematic and where markets themselves enable “substantial copyright piracy and trademark counterfeiting.” While pinpointing China, Russia, Argentina and India as hotbeds of IP infringement, Uncle Sam also listed nations like Mexico and Thailand where “IPR holders face a difficult environment due to the large number of markets offering counterfeit and pirated goods and services, and a relative lack of enforcement.” Although the trade rep’s work up to now primarily has focused on online and offline markets where infringing goods proliferate, the latest USTR list for the first time also identifies domain-name registrars that American officials deem of concern. The USTR hopes to hold internet registrars accountable for  infringement by its users and says these services are “playing a role in supporting counterfeiting and piracy online.” As a domestic legal tactic to crackdown on IP infringement, such a move hasn’t gone over well–and such a move may not play well across the Atlantic or Pacific, either. Attention grabbing report The USTR report, while it gets lots of attention, especially from supportive American interest groups in the movie and recording industry, isn’t  legally binding, though it makes a convincing case about many real issues with Internet infringement. But as the EFF points out, the agreement that registrars sign with ICANN, the net’s online, international regulatory agency,...

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Walmart rears up against cartoonist’s site

When a cartoonist decides to horse around, must a mammoth corporation react as if an online site is a horse of a different color, and whinny to the jest, nay, nay, neigh? With the Entertainment industry seeking to protect its intellectual property, especially in response to lucrative merchandising issues, it’s worth seeing that copyright and trademark issues create legal issues for other enterprises, too–and that the cyber chatter can be just as robust over the online world’s perception that corporations may feel their oats too much and might consider a wee bit more horse sense about aggressive protection of brand. Today’s publicity-attracting incident involves Walmart, from which Jeph Jacques, creator of the comic strip Questionable Content, received a recent cease and desist letter  after he launched his Walmart.horse website via the Tumblr photo-sharing and blogging software. Jacques insists his is a protectable fair use of Walmart’s trademark. In the C&D notice, Walmart, the nation’s largest retailer, says the site, among other mark infringement claims, particularly “weakens the ability of the Walmart mark and domain name to identify a single source… [and] tarnishes the goodwill and reputation of Walmart’s products, services, and trademarks.” What legal issues will prevail, so one of these conflicting parties happily and triumphantly rides off into the sunset? While parody is generally a protected form of speech, there is no definite legal definition of what separates legitimate parody from trademark...

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What happens in audits of movie, TV deals?

K Knowledge. Experience. Background. And relationships. These qualities and capacities make a world of difference for third-party profit participants who turn to experts to scrutinize the books of the entertainment industry to ensure everything adds up and they’re receiving their fair share, according to Steven Sills, an accountant, Southwestern Law School graduate, and partner and renowned motion picture and TV audit expert at Green Hasson Janks . Sills, with more than three decades of entertainment accounting experience and having done myriad audits with studios and distributors, walked an audience at Southwestern Law school through his work as part of the “Conversation With” speaker series with Professor Steve Krone, director of the Biederman Institute. Sills said audits can take years and involve he and his partners in detailed, proprietary-confidential discussions in which their knowledge, experience, background, and relationships in the industry get brought to bear to the benefit of their clients. They examine the full range of contracts in a movie or television deal in detail then see with a fine eye how costs and profits actually occur. Because studios and distributors know or know of him and have come to trust him, audits can be more business-like and less filled with conflict, said Sills, who noted he also gains more collegial cooperation from opposing lawyers when they learn he is a licensed but, as he emphasized, non-practicing attorney. Expert testimony For...

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Court says arrivederci to La Dolce Vita case

If there ever was a sweet life to a long-running lawsuit over a legendary film icon, a federal judge in Los Angeles has said basta finito to it: U.S. District Judge S. James Otero  recently granted Paramount and Melange Pictures  summary judgment  against International Media Films Inc. (a tip of the hat to Courthouse News for posting the court notes on the case). IMF had failed to reply to the latest moves in contentious claims over director Federico Fellini’s famed La Dolce Vita, a 1960 narrative of a journalist’s week in Rome. The court blocked IMF from reproducing, allowing others to reproduce, to perform, display or exploit La Dolce Vita. (The judgment can be found and downloaded here.) The judge said the company could not prepare or authorize any derivative works based on the film starring Marcello Mastroianni and Anita Ekberg. The court held that Paramount and Melange owned the film rights, and that IMF had contributorily infringed on those rights. The judgment against IMF: $899,477 in damages, costs, and attorney’s fees. This case, which has its roots in ownership disputes dating to the Sixties, came into the federal courts four years ago. It was mostly resolved two years ago but has lingered with the defense first claiming that IMF’s owner, president, and only active officer was too ill to participate in a trial; defense counsel subsequently withdrew. IMF since has failed to...

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Oprah, on remand, owns her own power slogan

Though David and Goliath’s combat ran brief and turned on a small stone, a trademark version of the legendary story has taken four years and it wasn’t David left standing after sheaves of paper got tossed about. The case involves Oprah, one name, one woman, and a lifetime of accomplishments to go with it.  She harnessed a descriptive phrase “Own your Power,” and began to build part of her Goliath-sized empire around it.  But Simone Kelly-Brown,  a life coach and motivational speaker, owns and runs “ownyourpower.biz.” Kelly-Brown sought and won a trademark on that phrase. She battled O for use of the words, prevailed briefly, but since has lost. Kelly-Brown had a registered TM on “Own Your Power,” and sued Oprah, asserting a variety of causes of action. Her claims failed in a federal district court in Manhattan, but in May, 2013,  the U.S. Court of Appeals for the Second District reversed the summary judgment for Oprah on claims of TM infringement, false designation of origin, and reverse confusion claims. When the case was remanded, U.S. District Judge Paul Crotty ruled recently that “own your own power” lacked the requisite distinctiveness to warrant protection with a mark saying, “[t]hough they may aspire to do so, plaintiffs present no evidence indicating a likelihood of creating a global media presence capable of attracting an audience of millions.” Oprah, in contrast, “made that showing by having used the phrase...

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