Trending Trademarks

Update on Varsity Brands et al v. Star Athletica

Posted by Lawrence Robins on November 2, 2016 at 3:07 PM

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. 

Read Bloomberg BNA Article

Read about the Sixth Circuit Decision

 

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Topics: Sports, Supreme Court, Copyright, Litigation, Decisions, Fashion, Consumer Products

California Resale Royalty Act Claims Dismissed as Preempted by Copyright Law, Despite 1980 Ninth Circuit Holding to the Contrary

Posted by Nicholas O'Donnell on April 21, 2016 at 1:47 PM

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.

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Topics: California Resale Royalty Act, Copyright

"Rime" Graffiti Case Against Moschino Survives Dismissal

Posted by Nicholas O'Donnell on March 22, 2016 at 11:45 AM

Last year street artist Joseph Tierney, better known as “Rime,” sued designer Moschino S.p.A. and its creative director, Jeremy Scott, for a variety of copyright and trademark claims based on the alleged use of Rime’s works in certain fashion lines. The presiding court has denied Moschino’s efforts to have the claim dismissed in a decision that provides an important, if implicit, endorsement of the rights of street artists under the Copyright Act, and of a novel theory under the DMCA. While some reports stated that the case was now going to trial, it is not there quite yet. It will now presumably head into discovery for the exchange of facts and information to see if there is in fact a need for a trial later. 

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Topics: Rime, Copyright, Moschino, Lanham Act

The Right of Publicity: How Much Control Do NFL Players Have Over Their Names?

Posted by Michael Palmisciano on March 8, 2016 at 2:22 PM

How much control should athletes have over their names? Not an unlimited amount, according to one recent court ruling.

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Topics: the Lanham Act, Copyright, Right of Publicity

PETA Thinks Monkeys Can Own Copyrights

Posted by Lawrence Robins on September 24, 2015 at 6:11 AM

Last August we wrote about a dispute between photographer David Slater and the Wikemedia Foundation over what is known as “The Monkey Selfie.” Because we’re brave, the photo appears again in this post. At that time, the Copyright Office released a public draft of the Third Compendium of U.S. Copyright Practices, in which it took the explicit position that photographs taken by monkeys are not copyrightable subject matter because they are not “the fruits of intellectual labor that are founded by the creative powers of the mind.”

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Topics: technology, Infringement, Internet, Copyright

Shufflin’ Ain't Hustlin’ When It Comes to Copyright Law

Posted by Lawrence Robins on September 17, 2015 at 4:09 AM

Back in March we wrote about Taylor Swift’s efforts to register as trademarks certain lyrics and phrases related to her 1989 album and world tour. Those applications remain pending in the U.S. Patent and Trademark Office. In the meantime, dance rap duo LMFAO just obtained summary judgment in its favor on a copyright infringement claim brought by rapper Rick Ross over merchandise bearing the phrase “Everyday I’m Shufflin’.” Ross claimed that the phrase used on merchandise infringed the copyright in the musical composition “Hustlin,’” which consists of a repeated refrain of the phrase “everyday I’m hustlin’” and the words “hustle” and “hustlin’.” Ross’ claim boiled down to this: the copyright in the musical composition as a whole also covers the oft-repeated phrase. Or to put I more simply, Ross claimed copyright in the phrase “Everyday I’m Hustlin’.” As a longtime copyright lawyer, I was LMFAO when I learned that the case got as far as it did. The case is William L. Roberts, II, et al. v. Stefan Kendal Gordy, et al.

It is basic, black letter copyright law that words and short phrases are not copyrightable subject matter and the court ruled accordingly. Furthermore, as discussed in detail in the court’s opinion, there have been more than a few prior cases that applied this rule to song lyrics, raising the question of why the Ross team thought this case was different. Ms. Swift obviously understood the different treatment accorded short phrases or slogans under trademark and copyright law and, accordingly, sought protection for her phrases as trademarks. Mr. Ross relied on copyright instead with predictable results.

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Topics: Infringement, Trademark, Copyright, Litigation, Decisions, Multimedia

Rah-Rah-©-Boom-Bah! Cheerleading Uniform Designs Win Copyright Protection

Posted by Natalie Lederman on September 3, 2015 at 11:49 AM

Though the U.S. Copyright Act does not currently offer protection for functional aspects of apparel designs, copyright protection does extend to purely decorative features of clothing that can exist independent of their functional aspects. This murky area of copyright law, known as the “Conceptual Separability Doctrine”, was the focus of a recent decision by the Sixth Circuit in Varsity Brands et al. v. Star Athletica. The court ruled that the decorative chevron designs on cheerleading uniforms are eligible for copyright protection.

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Topics: Sports, Copyright, Litigation, Decisions, Fashion, Consumer Products

Fabric So Rich Even Xerox® Can’t Copy It

Posted by Lawrence Robins on February 4, 2015 at 10:04 AM

Knock-off designs remain the bane of the designer’s existence and U.S. law still provides little in the way of intellectual property protection. While many fabric designs meet the threshold of creativity necessary for protection, clothing designs themselves are functional and not subject to copyright or design protection. Thus, a new design that debuts on a Paris runway in January is likely to appear in knock-off form in a discount retail outlet only a short time later.

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Topics: Infringement, Copyright, Fashion

Graffiti Litigation Update: Settlements and Procedural Wrangling

Posted by Nicholas O'Donnell on December 5, 2014 at 10:22 AM

Back in October, we surveyed some developments in lawsuits over public art and protection available under copyright law in graffiti art. There has been some movement, and other developments, in these cases.

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Topics: Trademark, Copyright, Litigation

No, Your Musical Cat and Artistic Dog Aren't Going to Make You Rich

Posted by Lawrence Robins on August 26, 2014 at 12:11 PM

The plight of David Slater, a British nature photographer, has recently been in the news. Mr. Slater travelled to Indonesia in 2011 in order to photograph the crested black macaque. During the shoot, one of the animals “stole” Slater’s Nikon camera and started playing with it. Remarkably, the monkey ended up taking several “selfies,” one of which turned out strikingly clear. Because of what happened subsequently we feel like we’re on safe ground in reproducing the photo here:

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Topics: Internet, Copyright, Multimedia

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Trending Trademarks provides comments and analysis on trademark issues affecting the fashion, high-tech, multimedia and consumer products industries.

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