Month: May 2015

‘Wild Thing?’ He’s not golden in the legal ring

Steve “The Wild Thing” Ray, the popular professional wrestler with the shoulder-length golden locks, has gotten thrown out  of the legal ring, again. The U.S. Court of Appeals for the Eighth Circuit of Appeals has tossed the appeal of the onetime Universal Wrestling Federation star’s loss against sports broadcasting powerhouse ESPN. Ray brought state claims against the network, for re-telecasting bouts from his early years of wrestling professionally. Although ESPN acquired the films of him legally, Ray said the broadcasts undercut money he might make from broadcasts of his UFW fights. He claimed in his Missouri case that the global TV and satellite channel had invaded his privacy, misappropriated his name, infringed on his publicity rights, and interfered with his prospective economic advantage from broadcasts of his fights. ESPN got the case moved to federal court and a district judge granted its motion to dismiss for failure to state a claim; that decision was upheld by the federal appellate court, which said his state claims were preempted by the federal Copyright Act. While the appellate judges threw no chairs across the ring, didn’t slap the plaintiff in a headlock, nor did they twist his arm, just in case anyone’s unfamiliar with Ray’s entertainment...

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For ‘The Slants,’ an appellate trademark coda

Call this a surprising coda for an Asian-American dance rock band involved in a long-running effort to secure a federal trademark registration for its name:  The Slants. A federal appellate court has taken it on its own accord to reconsider en banc the three-judge ruling that just recently reafirmed the Trademark Trial and Appeals Board decision to deny mark registration to the founder of the Asian-American band. While a certain pro football team can take the field in the nation’s capital and give wide offense, many say, to Native Americans, Simon Tam, the dance rock band’s founder,  twice was refused mark registration for his group’s name. On both occasions, the examining attorney refused to register it, finding it “disparaging to Asian Americans.” The case went up on appeal, here’s how it came down, then turned around–a little like watching a Washington linebacker running in circles in downfield. The disparagement clause On appeal, Tam argued that the board erred in finding the mark disparaging under Section 2(a) of the Lanham Act and challenged the constitutionality of this proviso that lets the U.S. Patent and Trademarks Office refuse to register a mark with matter that “may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or national symbols or bring them into contempt or disrepute.” The primary test to determine if a mark is disparaging is (1) what is...

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Pandora wins royalty rate appeal, radio license

In the 1980s, video killed the radio star, and today, it’s streaming music services that are causing great pain for music creatives: Pandora has just won a big decision in the U.S. Court of Appeals for the Second Circuit, beating down the American Society of Composers and Performers (ASCAP). The appellate judges affirmed a lower court’s 2013 ruling, setting a 1.85 percent rate for public performance of songs in the ASCAP catalog for Pandora and other Internet radio services. The higher court also nixed an ASCAP move effectively to let music publishers negotiate directly with online services like Pandora for performance royalties, potentially increasing the difficulty and cost. This controversial case has been closely watched and will please those favoring technology’s advance in providing music and other forms of entertainment in new ways, while leaving creative artists and sizable swaths of the music industry angry and glum. For Pandora, in particular, it was a second bit of promising news, as the company also has just won approval of its bid to acquire a South Dakota radio station, giving it a toe-hold into yet another way to secure lower royalty rates for music. Heavyweights gird for battle Streaming services and the music industry have gone at each other for several years now, with ASCAP, the rights clearinghouse that represents roughly half of all composers and publishers in the U.S., caught up in the strife. In 2010,...

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In latest twist in ad suit, Jordan tastes defeat

As the San Antonio Spurs and Manny Pacquiao could well advise basketball legend Michael Jordan, even champions don’t win every contest. Jordan himself discovered this off the hard courts and in a court of law recently, when a federal judge in Chicago, dealing with matters from a case remanded to him by the U.S. Court of Appeals for the Seventh Circuit, rejected the superstar’s motion for summary judgment in a lawsuit over a grocery ad that seemed to salute him. Jordan’s case against Jewel Food Stores in Chicago isn’t as complicated, say, as basketball coach Phil Jackson’s famed triangle offense. It is worth diagramming a little history in the dispute, which began when Jewel took out a full-page ad in Sports Illustrated congratulating Jordan on his 2009 induction into basketball’s Hall of Fame. The magazine swapped with Jewel the ad space for display space in its stores for the special commemorative edition about Jordan. Federal issues But Jordan sued Jewel for misappropriating his identity, claiming violations of the federal Lanham trademark act and the Illinois Right of Publicity Act. Jewel got the case moved to federal jurisdiction, citing the trademark issue, and the grocer won when U.S. District Judge Gary Feinerman decided the magazine ad was a protected First Amendment exercise. When Jordan appealed, the higher court overruled and found the ad was commercial speech designed to enhance Jewel’s brand.  This meant that...

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