troll.jpgLos Angeles – Two months ago we wrote this story: http://ow.ly/4DS7D about Matt Drudge, owner of the Drudge Report, reaching an out-of-court settlement with Righthaven LLC in regard to a copyright infringement over the use of a photograph.  Righthaven has been referred to as a copyright troll for its practice of acquiring newspaper content and photos from its partner newspapers after learning that the content has been used without permission.  Righthaven then sues the site owners for copyright infringement in an effort to reach an out of court settlement for monetary damages.

Mike Masnick over at www.techdirt.com has this interesting update: http://ow.ly/4DTep which could at least temporarily end Righthaven’s flurry of lawsuits.  The recently discovered documents  also pose a serious financial danger for Righthaven because the discovery could lead to awards of attorneys’ fees for all cases that are presently pending.  Righthaven’s exposure is due to a prevailing party’s ability to recover attorneys’ fees in copyright litigation.

coke-cans.jpgSan Diego – Coca-Cola recently filed an opposition to a trademark application for “Cocaine” for energy drinks filed by Redux Beverages in Chile on grounds of unfair competition and morality.  Coca-Cola is also claiming that the trademark will lead to a likelihood of confusion with its famous Coca-Cola brand.

James Kirby, Founder/President of Las Vegas-based Redux Beverages, surmised that Coke’s opposition of the trademark is in response to the growing popularity of his energy drink.  “We have already captured a significant market share in Chile,” says Kirby, “and our brand is achieving significant growth in the country.”

Since being launched by Redux in 2006, “Cocaine Energy” has attracted  a loyal consumer base and quite a bit of media attention over the controversial name.  The product has been banned in Texas for sending the wrong message to young consumers.

The popular energy drink is packed with 280 mg of caffeine per can (3.5 times stronger than other energy drinks) and without high-fructose corn syrup.  Instead, Cocaine Energy uses dextrose, which is better metabolized by the body.  The drink is available in two flavors: Spicy Hot Cocaine, and Mild Cocaine, which offer a unique blend of fruit and spices.  Interestingly, the can for Spicy Hot Cocaine is similar to that of a Coca-Cola can, with a red background and white logo.

We notice that James Kirby of Redux has filed U.S. Trademark Applications for COCAINE, COCAINE (+Design), and COCAINE ENERGY all for energy related drinks but each was refused by the U.S. Patent and Trademark Office and ultimately did not register due to problems with the trademark being immoral/scandalous and also deceptively misdescriptive of the goods.  Generally, immoral trademarks cannot register, and the trademark is considered to be deceptively misdescriptive because cocaine is not an ingredient of the drink.

Coca-Cola was created in 1885 and at one time did contain an estimated nine milligrams of cocaine per glass.  The cocaine was removed in the early 1900’s.  The complete formula for Coke remains a closely held trade secret known only to a few employees.

chalkboard-quiz.jpgOrange County – Google has finally caved into the mounting pressure from Congress and the entertainment industry to be more proactive in the war against online copyright infringement.  It has released new copyright policies to YouTube users requiring those who’ve used unauthorized copyrighted materials in their videos to view a copyright tutorial and pass a test before they can continue using the service.

In the past, the world‘s most widely-used web-based search engine has faced much criticism over its alleged lack of intellectual property enforcement.  Just last week, lawmakers had harsh words for Google after it failed to crack down on websites that were illegally promoting copyrighted works and counterfeit goods, claiming that Google has procrastinated on the issue.

Under the new copyright policies, Google hopes to better educate YouTube users on copyright rules and the consequences of infringing on unauthorized works such as movies and music.  Users will be able to view a copyright tutorial video and will have access to an improved copyright help center.

In a statement a YouTube spokesperson said, “We want to help our users operate within the law and within the guidelines.  Requiring that people complete copyright school after receiving a copyright notification means they’ll understand why their actions were wrong, come away with a better understanding of the law, and be more likely to comply with YouTube’s guidelines in the future.”

bubbles-blowing.jpgOrange County – Crayola, the globally famous manufacturer of crayons, is in a fight over bubbles.  It seems that the patent for colored bubbles, owned by competitor C2C Technologies, could very well threaten the existence of Crayola’s own washable colored bubble product released earlier this year.

The Pennsylvania-based crayon giant also known as Binney & Smith, is trying to convince the United States Patent and Trademark Office (USPTO) to eighty-six its competitor’s bubble patent.  Zubbles, named by Popular Science as Innovation of the Year in 2005, made its claim to fame as being the first colored soap bubbles that are non-staining and non-toxic.  Zubbles simply fade away when exposed to air, pressure, and water.  C2C Technologies was awarded the patent for the colored bubbles on March 22, 2011.

In a re-examination petition to prove that the technology behind Zubbles is neither new nor unique, Crayola argued, “Uniformly colored bubbles are in the public domain, and have been there for many years.”  The petition was filed by Crayola the same day the patent was awarded to C2C and will give the parties an opportunity to discuss a settlement.  Requesting re-examination of the patent at issue is a typical first move in patent litigation.

Marc Matsoff, a partner in C2C and owner of Jamm Companies, a distributor of Zubbles, defended the patent by stating, “If colored bubbles were so easy and we aren’t doing anything new, why hasn’t everyone come out with colored bubbles?”  He went on to say that he is optimistic that a settlement can be reached between the two companies that would allow them to cooperate with each other over the technology and possibly allow Crayola to use it.  Nevertheless, he also said that C2C would consider legal action against Crayola if the patent is  upheld.

Representatives for Crayola declined to comment on the issue.

San Diego – Former Governor Charlie Crist issued an apology on YouTube on Monday to singer David Byrne for using a Talking Heads song without permission during his unsuccessful 2010 campaign for U.S. Senate.   David Byrne, who is the singer of the band The Talking Heads, had sued Crist for $1 million for using the band’s song, “Road to Nowhere”.

“I sincerely apologize to David Byrne,” Crist said. “The use of David Byrne’s song and his voice in my campaign advertisement without his permission was wrong and should not have occurred.”  During the apology Crist often appears to be reading from a script which was likely prepared by Byrne’s attorneys. 

In his own statement Byrne said: “It turns out I am one of the few artists who has the bucks and [guts] to challenge such usage. I’m feeling very manly after my trip to Tampa. Other artists may actually have the anger but not want to take the time and risk the legal bills. I am lucky that I can do that. Anyway, my hope is that by standing up to this practice maybe it can be made to be a less common option, or better yet an option that is never taken in the future.”  Byrne’s attorney added: “This settlement again confirms that U.S. copyright and trademark laws apply to politicians and their advertising agencies, just like everyone else.”

Other terms of the settlement beyond the public apology are confidential. 

shoes-redsoles.jpgLos Angeles – Paris shoe-designer Christian Louboutin has become so synonymous with its shoes having red soles, that it was awarded a red-sole trade dress registration in 2008 by the United States Patent and Trademark Office (USPTO).  So when Yves St. Laurent(YSL)  released its “Palais” peep toe pumps with, you guessed it…red soles, Louboutin was definitely seeing red.

Louboutin filed a complaint in U.S. District Court in Manhattan alleging that YSL’s use of the red soles infringes on its trademarked design and will likely cause confusion, mistake, and deception among fashionistas who can afford to drop nearly $1000 for a pair of shoes.   The complaint claims that YSL’s red-soles are virtually identical to Louboutin’s Red Sole Mark and is seeking $1 Million in damages.

Regardless of Louboutin’s registered trademark, it will still have to prove a likelihood of confusion among consumers.  This may not be difficult to do for Louboutin since both designers market high-end footwear to a similar demographic.  The argument can be further supported by the fact that both designers’ shoes can be found in close proximity to each other at retailers like Saks Fifth Avenue, Bergdorf Goodman, and Barneys New York.  Instead the primary question may be whether consumers actually associate the red sole exclusively to Louboutin.

In the meantime, shoe aficionados will need to look past the soles.

win.jpgLos Angeles – After much-publicized angry rants against the executive producers of the television show, “Two and a Half Men”, Charlie Sheen is looking to capitalize on his infamous ‘Sheenisms.’   The veteran actor has hired Intellectual Property attorneys to file trademark applications for 22 catchphrases including “Duh-Winning”, “Violent Torpedo of Truth”, ”Rock Star From Mars”, “Tiger Blood”, “Adonis DNA”, “Sheen’s Goddesses”, “I’m Not Bi-Polar, I’m Bi-Winning”, “Sober Valley Lodge”, “Warlock Lounge” and “Living the Sheen Dream”.

According to the United State Patent and Trademark Office (USPTO) website, the trademarks were filed between March 19-22 under the name Hyro-gliff Corporation for protection for various goods such as t-shirts, bras, energy drinks, games, cellular devices, and gambling machines.  Apparently, Sheen is also attempting to trademark his own name and signature.

The so-called ‘Sheenisms’ were born in response to CBS executives side-lining the actor after they claimed that his bad behavior with drugs, alcohol, and women could compromise the integrity of the show.  After being officially fired from the “Two and a Half Men” cast, Sheen filed a $100 million civil suit against Warner Brothers and the show’s producer, Chuck Lorre.

It is surprising that the Sheen camp waited nearly a month after entertaining us with the slogans to file for trademark protection.  In our opinion, this definitely was not a “winning” strategy.  Since the controversial interviews with Sheen and his goddesses aired in late February, we count 16 trademark applications that have been filed which include the words “Tiger Blood”.  Even Jimmy Buffett got into the act with his own Tiger Blood trademark application for vodka.  There are also two other recently filed ADONIS DNA trademark applications.

This will be a long process for Sheen to actually get each application to register because he will have to get past the prior filed applications and then also submit specimens of use showing that he is actually using each trademark in commerce.  Does Sheen actually intend to use all of these trademarks on goods? 

bird_kookaburra.jpgLos Angeles – Aussie pop band Men At Work and its record company EMI Music have lost their last appeal in a copyright infringement lawsuit filed last year by Music Sales Corporation.

The claim accused the pop band of stealing bars from a 1930’s Australian children’s song for its international chart-topper, “Down Under.”  Apparently, Men At Work singer Colin Hay and guitarist Ron Strykert used a few bars from “Kookaburra (Sits in the Old Gum Tree)” for the flute riff.

EMI and the musicians defended themselves in the appeal by saying that only two bars from “Kookaburra” were used in the riff.  They pleaded that use of the two bars in the song was “a well-intentioned tribute” to the band’s Australian origins.  “Kookaburra” was written by Melbourne music teacher Marion Sinclair and has been a popular nursery rhyme with Australian children since the 1930’s. 

In 1990, two years after Sinclair died,  publishing rights to the children’s song were purchased by Larrikin Music which is owned by Music Sales Corporation.  In the lawsuit, Larrikin Music demanded thirty percent of the royalties earned by Men At Work and EMI, twenty-nine years after “Down Under” was released.  EMI argued in its appeal that Sinclair had never objected to the bars being used by Men At Work and that the similarities had been ignored for years until the recent lawsuit. 

After the original ruling last year, Men At Work singer Colin Hay insisted that the flute riff was part of the song’s arrangement and not originally part of its composition.  He stated that Greg Ham, who played the flute in “Down Under” “unconsciously referenced” the two bars on his flute during live shows.  The bars in the flute riff did eventually end up on the studio recording. 

On March 31st, the Australian Federal Court dismissed the Men At Work appeal and ruled that EMI must pay Larrikin attorneys fees and court costs.  Larrikin was also awarded five percent of publishing royalties from “Down Under” since 2002.

stop_spam.jpgOrange County – Austin-based Hormel Foods Corporation filed a trade dress infringement complaint in U.S. District Court in Minnesota against Zwanenberg Food Group.  Zwanenberg has allegedly continued to use packaging that is “confusingly similar” to the “Spam” packaging used by Hormel.

In October 2010, Hormel sent Zwanenberg a cease and desist letter.  Zwanenberg responded by saying that it did not believe that it infringed on Hormel’s trade dress but that it would agree to change its packaging from a blue and yellow design to a red and white design.  The dispute arose when Zwanenberg began manufacturing a meat product for sale and export to the Philippines which used packaging with an amended version of the blue and yellow design long used by Hormel.  Hormel did not appreciate the similarity to its blue and yellow design an alleged that consumers were likely to be confused between the two products.

In March 2011, Hormel sent another cease and desist letter to Zwanenberg requesting that it stop using the amended trade dress on its product in the Philippines.  According to Hormel’s complaint, Zwanenberg has repeatedly ignored its requests that it stop using the trade dress, thus requiring the lawsuit.

Hormel is asking for a court order to stop Zwanenberg from using the design.   It is also seeking unspecified monetary damages and attorneys fees.

movie-symbol.jpgLos Angeles – Immigration and Customs Enforcement received praise from the Motion Picture Association of America (MPAA) and the Screen Actors Guild (SAG) for its efforts in successfully seizing Web domains responsible for online copyright theft.  Both the film and music industry have been hit hard by online piracy through torrent sites that allow illegal file-sharing.

The ICE initiative called “Operation In Our Sites” was launched in June 2010 and has been instrumental in combating Internet counterfeiting and piracy.  As part of the initiative, ICE authorities execute seizure warrants against domain names of Web sites that offer first-run movies, often within hours of their theatrical release.  ICE will also seize assets from PayPal, banks, and investment accounts as part of its efforts to stop the copyright theft.

The White House’s Intellectual Property Enforcement Committee has made online copyright enforcement a top priority, assigning ICE with shutting down Web sites that repeatedly commit copyright piracy.  Online piracy has persisted as a major problem for intellectual property holders because many Internet users aren’t even aware that they are downloading pirated content.  Some of these users do it with knowledge but not realizing the seriousness of the crime.

The infringers are most often pirating movies, music, television shows, and sporting events through live feeds and some believe that those are just a forerunner of Internet crime.  Representatives from the MPAA, SAG, and major film studios stated, “If it is not made clear that this kind of activity is illegal, it has the potential to become the harbinger of even more forms of illegal activity on the Internet.”

Victoria Espinel, Coordinator of the Intellectual Property Enforcement Committee, recommended that Congress stiffen the penalties for online counterfeiting and piracy and made it clear that the online streaming of copyrighted content is a felony.  Additionally, the IP Enforcement Committee asked Congress to give ICE and the Department of Homeland Security wiretap authority to further enforce copyright legislation.