Another One for the No Good Deed Shall Go Unpunished File

For those who live in Southern California, you may recall reading about a bear who had an affinity for Costco meatballs (I mean, who wouldn't).  He loved them so much in fact that he would often return to Glendale after relocation to the Angeles National Forest in search of these frozen delicacies.  Hence, the residents of Glendale dubbed him "Meatball."  

Unfortunately, Meatball's repeated incursions to Glendale to forage for his food of choice (or maybe it was just his "comfort food?") landed him in line to be euthanized.  Well, one resident, Sarah Aujero, found that solution to be unbecoming and began a Twitter campaign to raise funds to find Meatball a more permanent home in this world.  The campaign Twitter moniker she chose was @TheGlendale Bear.  The effort became so successful, it included branded shirts, tote bags, and stickers which Ms. Aujero sold to pay for a new enclosure at Lions, Tigers & Bears sanctuary for Meatball.  She even obtained a trademark for the products bearing the Meatball name.  Ms. Aujero says that she would often use her own funds to bridge the gap between expenditures and donations and that she does not make money off of Meatball.  Meatball has been at the sanctuary for over a year.

Now, comes the legal part.  The sanctuary wants Ms. Aujero to hand full control of the Twitter account and assign all rights to the copyright to the sanctuary.  As you may expect, the sanctuary "lawyered up," and these lawyers took a fairly aggressive stance with Ms. Aujero.  So much so that when Ms. Aujero refused to sign over the rights to these items--although, she did tell the sanctuary it was free to use the name for fundraising efforts--the lawyers informed her that she would no longer be allowed on the sanctuary's property.  A somewhat childish response given that Ms. Aujero started the campaign to raise funds which went to the sanctuary. 

Ah, wait, it gets better.  Apparently, a publisher asked Ms. Aujero to right a children's book about Meatball.  She agreed and said that she would donate a portion of the proceeds to the sanctuary.  The sanctuary objects because they believe that Ms. Aujero is exploiting Meatball and they believe it is their job to protect the animals from exploitation.  What is clearly left unsaid by the sanctuary is that they would prefer to be the ones doing the exploitation.

By now, you are probably thinking why these two are fighting when they appear to be on the same side? My thoughts exactly, there has to be some way to resolve this without devolving into a long drawn out dispute.  In my practice, I am often asked for my legal advice on a matter to which I respond with discussing what my clients wish to achieve from a business perspective.  Maybe the sanctuary and their attorneys should have a similar conversation to figure out how best to raise funds for the sanctuary and Meatball instead of having to raise funds to pay attorneys' fees fighting this particular fight. 

Blurring the Lines Between Robin Thicke and Marvin Gaye: Marvin Gaye's family Sues Robin Thicke

Robin Thicke filed a declaratory judgment action against Marvin Gaye's family in order to have the court declare that his song, "Blurred Lines" did not infringe Marvin Gaye's copyright in the song "Got to Give It Up."  Notably, at the time of filing the lawsuit, the Gaye's were not asserting that "Blurred Lines" infringed their copyright.  One of the requirements of a declaratory judgment action is that there is an actual conflict between the parties over their rights/remedies.  This is certainly a case of some really awful legal advice on the part of those advising Robin Thicke.  Usually, a lawsuit would be a last resort option, not the first.  Also, if Mr. Thicke thought that his song would infringe, he may have been better served trying to work out a deal with the Gaye family to settle without resort to litigation.  Alas, he fired first.  

In response, and not unsurprisingly, the Gaye family sued Robin Thicke for stealing two of Marvin Gaye's songs.  The lawsuit includes an allegation that Robin Thicke has a "Marvin Gaye fixation," meaning that there may be other songs of Mr. Thicke's which "borrow" ("steal") Marvin Gaye's copyrighted material. 

Some music critics noted that "Blurred Lines" was influenced or reminiscent of "Got to Give It Up."  This may be what caused Thicke to file the declaratory judgment action.  There is a question as to whether a song is "influenced" or "reminiscent" of another's copyrighted material is sufficient to show infringement.  That will be what the court will determine in the not so near future.  

Harry Potter v. Whimsic Alley

Whimsic Alley, a store in Santa Monica (on the Miracle Mile), caters to the Harry Potter fans who want to purchase items which are reminiscent of (but not necessarily licensed from Warner Bros.) those in the movies.  Not surprisingly, it caught Warner Bros. attention and the two are engaged in litigation over the Harry Potter trademarks.  Apparently, this is the second time that Whimsic Alley has found itself on Warner Bros.' radar.  The first time concluded in a settlement agreement wherein Whimsic Alley agreed to stop using Harry Potter trademarks or other "confusingly similar" products.

Well, in looking at the website for Whimsic Alley, it appears as if Whimsic Alley is displaying items that are the same or similar products.  Now, that does not mean that Whimsic Alley did not license those products from Warner Bros., so those products may have been part of the first settlement and/or a license agreement.

What caught Warner Bros.' attention this time was Whimsic Alley's advertising a "wizard cruise."  Sounds fun, doesn't it? Well, Warner Bros. did not think so--especially since it has opened and has plans to open a Wizarding World of Harry Potter at Universal Studios around the world.

The case is set to go to trial in January, so stay tuned for a conclusion.  Nevertheless, this is another example of being careful where you tread in terms of another company's trademarks and products.  In particular, it is another example of being careful not to catch the attention of those companies who aggressively protect their trademarks. 

Sometimes Discretion is the Better Part of Valor When Confronted by a Trademark Bully

Believe it or not, if you want to try to turn water into wine, you may need to hire an attorney and not that "other guy." Recently, a new expensive bottled water ("Beverly Hills 90H20") caused a stir when it marketed its water as the "Champagne of waters."  And, at $ 5 a bottle or more in specialty retailers, gourmet markets, and restaurants, it seems as if such a claim was appropriate.  Needless to say, Champagne producers did not appreciate the reference.  The organization that represents growers and marketers of Champagne sent the Beverly Hills company a cease and desist letter asking it to drop references to Champagne in its marketing.  

According to the Beverly Hills water company ("Beverly Hills Drink, Co."), it enlisted the help of artisans to create a water that resembled wine in "bringing the notes out" of meals.  The water's recipe includes spring water and various minerals that occur naturally in water.  

The advocates for sparkling wine from the Champagne region are notoriously aggressive in protecting the Champagne name (word) and trademark--most notably, they denied those who make sparkling wine in other regions from using the "Champagne" nomenclature.  They have also fought to deny fashion houses, cigarette makers, soda makers, etc. from using the word on their products. If you follow this blog or understand trademark law even a little bit, you will understand that these others most likely would have a right to use the word "Champagne" on their products.  

These types of trademark bullies often are able to obliterate particular words from the marketing dictionary because they have the money and the stable of attorneys to bury any small business--they also have the attorneys and resources to cost the bigger business quite a bit.  This is a sad state of affairs, but sometimes it is about who has the resources and not who is legally correct.  Not surprisingly, Beverly Hills Drink, Co. decided that their resources were better spent on marketing and their product and not fighting the Champagne nazis . . . err, advocates.   

 

The lesson is that it is a good idea to try and figure out who these uber-aggressive trademark enforcers are before you spend the time and money on an ad campaign or trademark (I counseled a small company against fighting "Iron Man" even though that company was using the name descriptively and not in a trademark sense.  "Iron Man" was another brand which fought everyone and anyone using these words in any context).  While, as a youth, I subscribed to the theory that you should stand up to a bully, in the instance of standing up to these trademark bullies it is usually much easier and less costly to get off of their playground (radar). 

Apple is Now the Most Valuable Brand

A new report by Interbrand recently ranked Apple as the most valuable brand with Google a close second.  These two tech giants knocked Coca Cola from its 13-year perch at the top.  According to Interbrand, it ranks brands by looking at brand loyalty and financial performance.  It also only ranks a company's brand if it has a presence in at least three major continents--so, don't expect to see that wonderful mom and pop shop down the street that you and everyone else adores in Interbrand's rankings. 

According to the report, Interbrand believes that the Apple brand is worth $ 98.3 billion, Google's is worth $ 93.2 billion, and Coca Cola's is worth $ 79.2 billion.  Is it at all surprising that both Apple and Google leapfrogged one of the most enduring brands in existence for over a century?  Probably not.

What I found interesting about the report is that it talked about Apple's "ethos."  This is something that every company should think about.  I recently taught a business law class at a local community college and one of the lectures discussed just that--a company's ethos.  It is not just about putting out great products or providing great services anymore.  Yes, that is still important, but now a company must think about how it projects its guiding beliefs or how it will distinguish its character from a competitor.

Doing so will allow that company to grow its brand. 

Another Reason Not to Trust Yelp

Yelp is suing a San Diego Law Firm for trying to rig its reviews.  Yes, you read that correctly, Yelp is suing a law firm for using staff and other friends of the firm to submit glowing review of the law firm.  How is that different than any other company who "works" the Yelp system? It is not.  However, according to the principal of the law firm,Yelp's lawsuit is really retaliation for the law firm having the audacity to sue Yelp in small claims court. 

The law firm obtained a $ 2,700 judgment against Yelp.  The basis for the breach of contract lawsuit was that Yelp apparently promised the law firm 1,200 impressions per month if the firm paid Yelp $540 per month.  According to the lawsuit, Yelp did not deliver the 1,200 impressions.  Although, the representative for Yelp claimed that the law firm did not understand how it measured such impressions and that Yelp actually "over delivered" on the ad impressions as promised.  A likely story, indeed.

Of course, Yelp is not only suing the law firm, it is also "filtering" all of the law firm's reviews.  According to several people posting on various blogs about Yelp, this is not an uncommon tactic for Yelp (i.e. to filter reviews when the company does not advertise with Yelp).  The small claims judge accurately, in my opinion, described Yelp's contract as "the modern-day version of the mafia."  I could not agree more. 

Judge Judy's Son Sues Local Sheriff for Defamation

Judge Judy's son, Adam Levy, is suing a local sheriff for defamation.  Mr. Levy is a District Attorney for Putnam County. Apparently, the sheriff said that Mr. Levy interfered in a child rape case.  According to the lawsuit, Mr. Levy is seeking $ 5 million to right this alleged wrong. 

The defamatory statement occurred in the context of a rape case against Mr.Levy's former personal trainer and friend, Alexander Hossu.  Mr. Hossu was accused of raping a 13-year-old girl.  Given the personal relationship between Mr. Levy and Mr. Hossu, Mr. Levy recused himself from the case.  However, in a news release, the sheriff said that Mr. Levy made comments and acted in such a way as to make clear that, if he had his way, Mr. Levy would not prosecute Mr. Hossu.  

In California, the elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.  California Civil Code section 45 defines "Defamation per se" or Defamation on its face as: "Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”  Thus, in this case, the statements intimating that Mr. Levy was not doing his job appropriately or was trying to help his friend out by not prosecuting the matter may fall under this type of libel. 

As with almost all defamation claims, though, the problem comes in trying to balance one's First Amendment right to free speech against another's protection against defamation.  Pure opinions or statements that are true fall under the protection of the First Amendment.  Indeed, even false statements (even if unjustified or made in bad faith) which are statements of opinion rather than false statements of fact are not defamation.  

So, where is the line? Sometimes the line is very blurry. As in the case of Mr. Levy, was the local sheriff merely providing an opinion or were his statements those of fact?  Time will tell as the case rolls on, but in this day and age of instant communication, be very careful about what you say about others--it may just buy you a defamation claim.