Once liability for copyright infringement has been established — and it’s usually not that difficult to do so, either you downloaded the copyrighted work or you didn’t — the plaintiff then gets to proceed to the damages phase. (This assumes there’s no criminal liability, which can exist, see 17 USC § 506.)
Monetary damages for copyright infringement can be quite steep. See 17 USC § 504. In particular, while a plaintiff can recover its “actual damages,” it can elect instead to recover statutory damages of between $750 and $30,000 for each work infringed. If you download a lot of music or movies, you can see how those damages might get very large, very fast. Indeed, they can actually go even… Continue reading
The crux of a trademark infringement claim is confusion: the unauthorized, complained-of use will cause, or already is causing, confusion. The purpose of a trademark infringement or domain name cybersquatting lawsuit is, therefore, to stop that confusion, or potential for confusion. But there is a recognized interest, in the US at least, in the value and utility of “free speech.” And so the question then becomes, to what extent can you refer to a trademark without express permission?
It’s quite appropriate, even in an obviously commercial context, to refer to a product for comparison purposes, for example, as in the case of a Coke TV commercial that claims it’s better than Pepsi. Car manufacturers do this a lot. Indeed,… Continue reading
First Descents, a nonprofit organization based in Colorado, has filed a trademark infringement lawsuit in federal district court over national retailer Eddie Bauer’s use/registration of the trademarks First Ascent and First Descent. A copy of the complaint is available here.
This case is interesting because First Descents owns the rights to use its mark on clothing and the like, and it would seem to be potentially confused with Eddie Bauer’s First Descent/First Ascent marks, if used on clothing. Interestingly, Eddie Bauer is apparently attempting to claim prior use through “tacking,” which is the legal process of “joining of consecutive periods of possession by different persons to treat the periods as one continuous period.” Black’s Law Dictionary, 9th Ed.… Continue reading
You’ve probably heard about the new top level domains that are going to be available for registration in the future, the “right of the dot” brand names, like .Canon, or .Coke, etc. But before that became a possibility, .XXX was approved for use (over much controversy) by the adult entertainment sector. As a condition of its approval, the registry approved to oversee .XXX domain name registrations was required to allow a sunrise period for trademark and service mark owners to apply to permanently* block their names from being used in a .XXX registration.
*Since the registry’s contract is only for 10 years, this blocking might have an expiration date, or at least a renewal date. But it’s likely that even… Continue reading
I actually recently used some online reviews in a case myself. I think their usefulness to document the way the public identifies a particular business can be incredibly helpful. The federal court for the Eastern District of Arkansas agrees:
U.S. District Court Judge Brian Miller in the Eastern District of Arkansas ruled that the 18-year-old national chain was likely to prevail in its trademark infringement claim because consumers were confused by the other “Chipotles,” which operated in Beebe and Jonesboro.
Critically, Miller ruled that posts on review sites “reflect confusion as to the ownership of defendants’ restaurants.”
“Ken dumps Barbie” read the ads, which feature a picture of a frowning Ken doll, male companion to Mattel’s Barbie. Ken apparently did this because Mattel, maker of Barbie dolls, contributes to global deforestation, and Greenpeace isn’t happy about that. Greenpeace tried to run this ad, but it was rejected by Facebook:
Greenpeace seems to have a point. There is a concept akin to copyright’s fair use doctrine that relates to trademark use, although as always with trademarks, if there is evidence of confusion among the public, things start to go off the rails fast. Here’s what Greenpeace had to say about the Facebook takedown:
According to our legal analysis prior to the campaign, this complaint to Facebook that Greenpeace… Continue reading
Here’s an interesting blog article (h/t Rachael Vaughn, @rachaelvaughn on Twitter), perhaps provocatively titled “Why Register a Copyright If You Don’t Want to Sue?” (Brief aside: initial caps? ugh…)
Since the UDRP and domain names really dominate my practice, I’m mostly focused on the trademark part of intellectual property law. But I enjoy copyright as a field, and it’s quite an active topic in the legal blogosphere and legal community on Twitter. This post got me thinking a bit.
The linked poster’s points are that (1) a registration can be helpful in dealing with infringement even if you don’t end up in court, (2) a registration can help you (as a content producer) with your contract negotiations… Continue reading
Well, it looks like the mediation didn’t work out. According to this blogger, the judge has been quoted as saying the matter “did not settle.” It also didn’t look like there were any other plans to meet to try to work it out again before the trial date in November 2012. That’s a long way away, though, and it’s possible that they could still work out a deal.There’s nothing that says they can’t settle the matter out of court.
Still, according to that article, which cites Bloomberg as its source, the Canadian company has been aggressively using its Canadian Target mark and opening new stores, etc. To me, that looks like they’re trying to increase the cost to Target to… Continue reading
Bloomberg is running a story that discusses the mediation between Fairweather and Target over their trademark infringement lawsuit. I discussed the lawsuit, which involves trademark considerations about logos and the like, in November last year.
I’m not an expert on Canadian law, so I wonder if the mediation was mandatory, or ordered by the judge, or if the two sides decided it’d be cost effective for them to try to work out a deal. The judge seems to be the one driving the show, though.
In any event, it looks like they will probably be coming to some sort of a resolution of the dispute. The Bloomberg piece notes that this is apparently the first time Target has… Continue reading
Teachbook has started a fund to attempt to raise money for its legal defense against Facebook’s lawsuit for trademark infringement. On its face, this certainly has the David v. Goliath sort of thing going on, doesn’t it? At least, that’s what Teachbook wants the court to think. And really, the fight is about something that’s pretty generic sounding: the right to use *book as a business name.
Now, on the other side of that coin, obviously, is Facebook’s argument. And the critical thing for them is whether this upstart “Teachbook” is copying their business model, trying to profit off of the claimed association. Because that’s a classic fraudster technique, going back to the dawn of civilization probably: align… Continue reading