Friday, February 13, 2015

Another One for the Big Firms Are Not Always the Smartest Option . . .

I have met my share of potential clients who look at me as a "lowly solo" and express that they would prefer to have that big name, big international firm represent their interests.  I always tell these potential clients to be careful what they wish for because big firms are not always the best option.  Katy Perry's "Left Shark" of Super Bowl infamy proves my point.

As some of you may or may not know, during the Super Bowl half time show, Katy Perry performed her song "California Gurls."  Her stage for this song had a beach theme and two dancing sharks on each side of her.  Needless to say, the shark on her left appeared to have either been asleep or completely absent during rehearsals.  So he (or she) made up his (her) own moves without regard to the apparent choreography.  This, in turn, provided much internet and social media fodder.  In fact, "Left Shark" became a pretty popular meme subject.

Well, to the point about big firms--that usually have several layers of staff and attorneys working on your matter at gargantuan hourly rates . . . One of Katy Perry's attorneys at Greenberg Traurig sent a gentleman in Florida, Mr. Sosa, a cease and desist letter claiming that the shark images and costumes were protected by copyright(s).  You can view the letter and the response to the letter here.

You see, Mr. Sosa began offering 3-D printed "Left Shark" figurines for a mere $25.00 a piece.   Initially, Mr. Sosa decided to stop printing the figurines and avoid the legal hassle.  However, he had a change of heart and received help from a law professor who specializes in copyright law.  Professor Sprigman responded to Greenberg Traurig's letter by pointing out the ridiculousness of claiming a shark costume as a copyright.  He also pointed out that, even if copyrightable, Ms. Perry in an interview before the show indicated that she may not have created the shark costume, and therefore, did not own the copyright.  Interestingly, the cease and desist letter does not include a registration for the shark costume copyright which means that Ms. Perry could not sue Mr. Sosa until she obtained one.  Of course, even if she tried to get a registration, it is not likely the Copyright Office would issue it for a costume. 

As I have advocated on this blog before, it is important to defend and protect your intellectual property, but you should probably actually own it before you allow big law firm to hastily fire off a cease and desist letter. 

Tuesday, February 10, 2015

La Liga's Valencia CF Irks DC Comics

Valencia CF recently redesigned their logo and it caught the attention of DC Comics.  The Spanish soccer club's logo, according to DC Comics, looks quite similar to Batman's calling card.  Here are the two side by side:






While Valencia has used a bat in its logo since 1919, the wings of the primary logo for the team are angling downward.  It was the change of the wing's angle upward that made DC Comics file a complaint in European Union's trademark organization.

Of note is that the batman logo originally appeared in 1939 and it has undergone variations in that time as well.  It will be interesting to see the results of DC Comics' lawsuit. 

Tuesday, January 27, 2015

From Crowdfunding to Crowdsourcing

A while ago, I wrote about companies using "regular Joes" to research patent prior art or create advertising.  Now, it appears that companies are taking it a step further by using crowdsourcing to assist the companies with marketing concepts and content.  You may be familiar with the concept of Kickstarter or Indiego as a way for entrepreneurs and small businesses to raise money for their products by obtaining small amounts of money from a large amount of potential customers.  

Now, companies like Quiksilver, Jamba Juice, and the band One Direction have turned to creative sourcing websites like Talenthouse and Tongal.  Here's how it works (as I understand it):  the Companies pay a fee to post a need; artists (musicians, videographers, etc.) pitch their proposal to fill the need of the  company; the best submissions then get paid for their submissions.  I understand in some instances the payout can be many thousands of dollars, but usually a few hundred dollars is the norm.  The websites have an added feature in that users register with the site can weigh in and vote for their favorite submission(s).  Of course, the company has the final say regarding which submission(s) it will accept, but this can be a good way to gauge how consumers may view the work. 

For big companies, these sites give them a chance to break away from stale ideas and infuse new ones.  They also are able to select several works targeting specific regions or demographics, as opposed to the "one size fits all" marketing campaign.  For artists, it gives them a way to get their work out there without having to drudge through the ranks of an advertising agency or other type of company.  It allows the artists to freelance, too. 


Tuesday, December 23, 2014

Interesting Issues Over Cigar and Rum Brands May Come Up With a Thawing of Relations Between Cuba and the United States



Lifting of the Cuba embargo by the United States could create disputes over rights to the Cohiba brand.  Cohiba is one of the biggest brands for Cuban cigar.  There is another Cohiba brand made in the Dominican Republic which is the one which finds its way to American retailers.  The owner of the Dominican Republic brand is Scandinavian Tobacco Group ("STG").  STG recently won a trademark dispute with the owner of the Cohiba brand in Cuba, Cubatabaco, in the United States.  It took STG 16 years, but it finally succeeded in obtaining the rights to the brand, Cohiba, in the United States.  As a result, the distributor for Cubatabaco (a state tobacco company of Cuba), must sell its "Cohiba" cigars in the United States under other brands.  

A similar issue arises in the rum arena.  Bacardi & Co. ("Bacardi") began as a Cuban company, but left Cuba after the Castro government nationalized its operations.  The rights to the brand in Cuba (and elsewhere) belonged to the Havana Club.  Following its departure from Cuba, Bacardi fought with Cuban and French spirits maker, Pernard Ricard SA over the rum brand owned by Havana Club.  In 1997, Bacardi purchased Havana Club and then obtained a series of rulings in United States courts giving it the rights to the Bacardi brand in the United States.  Pernard Ricard will distribute rum to the United States under a different brand--and will market its new brand as the "genuine" Cuban rum in Cuba for those who visit Cuba and wish to bring some home.  Meanwhile, Bacardi indicated that it may consider a return to Cuba if there is improvement in the relations between Cuba and the United States and an improvement in human rights in Cuba. 

Tuesday, November 11, 2014

Another Dead Trademark Being Revived

If you are my age, you may remember one of the hottest high-end audio brands was Technics.  I remember how DJs coveted a Technics turntable.  Heck, even now, DJs remain attracted to the last turntable carrying the Technics brand--made in 2008.  The owner of the brand, Panasonic, decided to consolidate its corporate brands.  As a result of that consolidation, Technics was put out to pasture, so to speak.

Well, now, Panasonic is reviving the brand.  Panasonic hopes to attract those who are looking for more high-resolution audio since the current most common data formats are compressed (to fit on your music player, smartphone, or other device).  Since Panasonic is seeing the compressed format (which is more affordable) market shrinking, it believes that it is time to bring back Technics and capture a broader market.  Stay tuned. 

Tuesday, November 4, 2014

Anti-Brands Are Taking A Bite Out of Gucci

I recently read an article in the Wall Street Journal about how Gucci's brand is suffering.  According to the article, prior consumers of Gucci have decided to purge their Gucci inventories in favor of other logo-less brands (e.g. Bottega Veneta).  The article quoted one customer as indicating that she preferred not to let everyone know who made her bag or how much she paid for it.

I sure hope that these customers can talk to all of the women at my gym who insist on bringing their big, expensive, logo bags into class.  I always wonder why there is such a need for them to make sure everyone sees what label they purchased and are carrying.  Of course, I freely admit to being somewhat of a hypocrite when it comes to my cycling and soccer gear.  While I do not necessarily flaunt my gear, I do prefer certain brands over others.

Anyway, enough about me, back to Gucci.  Part of Gucci's problem is the explosion of other "fresher" labels.  Part of the problem is the general economic downturn.  Another problem is that Gucci put its brand on too many products thereby undercutting the uniqueness of its brand.  In trying to reach more customers, it appears as if Gucci has actually hurt its brand.  Apparently, once there is a feeling that almost anyone can own a Gucci product, then those who like the idea of carrying a brand that most of us "average" citizens cannot have will seek out another, more exclusive brand.  Indeed, if you are purchasing a product for status, you are probably a fickle consumer--always looking for and trying to get the "next great brand."

Now, Gucci is going to have to reverse the trend and rebuild its brand.  It can do so, but let this be a lessen in how one's trademark can lose its lustre.  As you are building and nurturing your own brand, always take stock of the message you wish your trademark to convey and ensure that it does so.  Also, learn from Gucci's mistakes and be sure to protect your trademarks!

Tuesday, October 7, 2014

Sirius XM Loses Lawsuit Based on California Copyright Law

Yes, I know, if you ever were a student of mine and heard me lecture/discuss Copyright law, you read that title and said "wait, Professor McCliman, said that the Federal Copyright Act preempted State copyright laws!"  Well, that is true, except the Federal Copyright Act only applies to sound recordings made after February 15, 1972.  According to the Copyright Act, this carve out expires on February 15, 2067.

So, a recent decision by Judge Gutierrez in a case brought by founding members of the band The Turtles against Sirius XM for playing their songs (which were recorded in the 1960's) found that Sirius XM publicly performed The Turtles' songs without authorization, and therefore, violated California copyright law. What is California's copyright law? I am glad you asked.

California Civil Code sections 980, et seq. is California's copyright law.  Section 980(a)(2) provides that the author of a sound recording fixed prior to February 15, 1972 has protection until February 15, 2047.  Seems pretty straightforward, right? Well, one of the main issues before Judge Gutierrez was whether the language of the California statute encompassed public performance (i.e. playing the songs on satellite (or any other) radio).  There was no dispute that Sirius XM played the songs, so it had really no choice but to argue that the playing of the songs did not infringe pursuant to California's copyright law.  Judge Gutierrez did an admirable job of setting out how he interpreted the statute and how it is that he determined that the California statute included public performance.  As such, the court found that Sirius XM infringed The Turtles' California copyrights.

While this ruling can have overarching implications with regard to the various other music providers (Pandora comes to mind immediately), keep in mind that these cases invoke state laws, and therefore, are only applicable in those state where there are such laws.  Nevertheless, it is almost certain that the likes of Sirius XM will find themselves having to defend several similar lawsuits in various states across the country.