Estate of Graffiti Artist Sues McDonald’s Over Fast-Food Décor
The estate of Dashiell “Dash” Snow, better known as graffiti artist “Secret Snow”—has sued McDonald’s over allegedly infringing use of Snow’s street art in McDonald’s dining rooms. The lawsuit in the Central District of California is the latest in a series of cases in which street artists are asserting their rights in copyright without any concession about whether the creation has other legal issues (i.e., trespassing or vandalism). Based on the survival of other recent similar cases, this latest case could be a headache for the giant restaurant chain, though it may have interesting fair use arguments based on the contrasting nature of the street vs. corporate uses.
The Wall Street Journal article linked below highlights the continuing peril in ignoring the Chinese market in the early stages of brand development. Briefly, Donald Trump was forced to engage in protracted and costly legal proceedings in order to register the TRUMP brand for real estate agency services. As is common, a Chinese national previously registered the TRUMP brand, almost surely in anticipation that someday the real Donald Trump would come along and be forced to pay dearly for the right to use his own name. Donald being Donald, he opted to fight rather than pay. However most trademark owners have neither the resources nor the will to fight such a battle.
Back in September 2015, we wrote about Varsity Brands et al. v. Star Athletica after the Sixth Circuit ruled that the decorative chevron designs on cheerleading uniforms are eligible for copyright protection.
The case has gone all the way to the Supreme Court, which heard oral arguments on October 31. Sullivan & Worcester Partner Larry Robins weighed in on the implications of the case in the recent Bloomberg BNA Patent, Trademark & Copyright Journal article below.
The United Kingdom has voted to leave the European Union (the Brexit). In the short term, the Brexit vote will not impact trademark rights in Europe. The Brexit will not affect national UK trademark registrations, and EUTM registrations will be valid in the UK for the foreseeable future. Moving forward, however, the UK will no longer be a member of the EU’s unitary trademark system, under which a single EUTM registration gives a registrant enforceable rights in each EU member country. UK legislators will need to decide whether existing EUTM registrations will remain valid in the UK or whether to establish a mechanism to convert EUTMs to national registrations. The Brexit could also impact the EUTM registration system and leave vulnerable to cancellation those registrations that are used primarily in the UK. Further, questions may arise from trademark license agreements that convey EUTM rights or are limited in scope to the EU. We will follow these developments and keep you informed.
Digital advertisers innovate new techniques to reach customers at a speed that, for the most part, outstrips the ability of the US government to regulate. Every now and then, however, the Government lurches forward to provide truly useful guidance.
Just three months after the Supreme Court denied certiorari review of last year’s Ninth Circuit decision finding California’s Resale Royalty Act unconstitutional under the Dormant Commerce Clause in part—but also valid in part—the U.S. District Court in Los Angeles has ruled the entire law invalid as preempted by copyright law. Critically, the opinion relies on last year’s Ninth Circuit ruling on the Commerce Clause issue to overrule a 1980 Ninth Circuit case that expressly rejected the idea that the law was preempted.
Will Rogers once said “Letting the cat out of the bag is a whole lot easier than putting it back in.” While he surely didn’t intend it that way, this is sage advice to incipient trademark owners. Consider, if you will, the “sport” of Fowling.
Panera Bread and the Great Harvest Bread Co. will not be breaking bread together anytime soon. To the contrary, Great Harvest recently filed a trademark lawsuit against Panera over Panera’s “food as it should be” campaign, which is meant to reflect Panera’s philosophy of clean ingredients and menus based on whole foods.
Trademark and copyright law are in a constant struggle with the right of free expression guaranteed under the First Amendment of the US Constitution. This is unavoidable. Copyright laws were enacted to protect authors of copyrighted works from others using their protected artistic and creative works. Trademark laws give the bearer of a registered trademark a monopoly of sorts on a word, phrase, logo, or other brand identifier with respect to certain goods and services against other parties who, beyond mere copying, would use their marks in a manner that is likely to cause confusion among relevant consumers. Maintaining the balance between the rights of copyright and trademark owners on the one hand, and the public at large, however, is harder than it looks.