THE REPORTS OF THE DEMISE OF TWINKIES HAVE BEEN GREATLY OVERSTATED

Private equity firms Apollo GlobalManagement and C. Dean Metropoulos & Co. purchased Hostess' Twinkies, CupCakes, Ho Hos, and Ding Dongs brands for $ 410 million.  The purchase includes bakeries and equipment and awaits final approval in the bankruptcy court.  My guess is that these equity firms are going to try to rebuild the brands by marketing them to those who pine for the nostalgia that these brands evoke.  Now, can I get anyone to revive the Marathonbar (you know, the one that lasts a "long time?").  Yes, I did just age myself.  I seem to be doing that quite often lately.

Copyright Chief Finally Urges Congress to Revamp the Copyright Act

Apparently, recognizing that the Copyright Act is in a need of a complete makeover, the Register of Copyrights, Maria Pallante, told a House congressional subcommittee that Congress should redo the Copyright Act.  The Copyright Act has struggled to keep pace with the new technology and the realities of artistic expression.  Recall that the White House announced that Americans should be able to unlock their mobile phones in order to allow them to freely move among any of the carriers.  The White House's announcement came in response to the Copyright Office stating that unlocking a mobile phone could subject someone to civil and criminal penalties.  Of course, that position by the Copyright Office created an outcry to reform the Copyright Act. 

Of the three areas of intellectual property, the Copyright Act seems the most out of step with its goal of encouraging creative expression.  Of course, Ms. Pallante wants to strengthen the enforcement capabilities of the Copyright Act.  I understand that position, but I would caution that there needs to be some common sense inserted into the equation.  Indeed, even Ms. Pallante seemed to understand this need for a more "balanced approach" to copyright enforcement.  For example, while sharing a song with another would subject the sharer to the statutory damages for copyright infringement, there should be some acknowledgement that, by sharing that song, the sharer may be actually providing a benefit to the artist. 

Consider this scenario:  Jane Doe hears a song by Band X that she absolutely loves.  Ms. Doe logs in to her iTunes account and searches for additional songs by Band X (she purchases additional songs by Band X and others similar to the sound of Band X by way of iTunes' suggestion features).  In her enthusiastic state about Band X, she sends the song to her good friends, John Roe.  John loves the song and he also searches and purchases additional Band X songs from iTunes.  In this scenario, while Jane Doe technically infringed Band X's copyright, it does not make sense to enforce the statutory damage amount because she actually provided a benefit to Band X and other bands by purchasing additional music.  The same holds true for sharing the song with John who makes additional purchases.  I would hope that under this scenario, Congress can find a way to rework the Copyright Act to more accurately take in the facts of the case.

Now, do not get me wrong, I am not saying that the Jane Does of the world should be given free rein to steal the creative expression of a band or other artist, but there should be some mechanism for allowing the punishment to fit the "crime."  Given the current state of Congress, I am fairly certain that any sweeping common sense re-configuring of the Copyright Act is not even close to coming to fruition.  I hope I am wrong. 

Naming Rights for Buildings Is Taking a Whole New Turn

I am sure everyone has heard about the recent spate of naming (and re-naming) rights being bought and sold for various sporting venues. There is Emirates Stadium in London.  The HP Pavilion (aka the "Shark Tank") in San Jose (home to the San Jose Sharks).  There is the O.co Coliseum (home to the Oakland Raiders and Oakland A's), PETCO Park (home of the San Diego Padres), AT&T Park (home to the San Francisco Giants), and the list goes on.  As many fans know, the names seem to change like the weather.  For example the soccer facility in Carson, California is changing its name from the Home Depot Center to the StubHub Center.

However, these companies have nothing on the fashion companies in Italy.  Apparently, the latest trend for these fashion companies is to invest in rescuing historical monuments in Italy.  Fendi is sponsoring the renovation of the Trevi Fountain.  Tod's donated several million dollars to rehabilitate Rome's Colosseum, Gucci donates half of its museum's ticket sales to preserve the city of Florence's art.  Prada is funding a six-year restoration of an 18th Century pallazzo in Venice.  Diesel is spending millions to restore Venice's Rialto Bridge.  Brunello Cucinelli is paying $ 1.4 million to restore the Arch of Augustus in Perugia.

To hear these companies put it, their brands received a boost to their reputations through Italy's reputation for beauty, elegance, and craftsmanship.  The idea is to give back to Italy's reputation when Italy's economy is such that Italy cannot maintain these historic treasures as it should.  Just as interestingly, the companies are not plastering their brands all over these historic treasures.  Instead, they receive their recognition in a small, fairly unobtrusive way.  For example, Fendi will have a small plaque installed near the Trevi fountain for four years acknowledging Fendi's donation.  Similarly, Tod's will see its logo on tickets sold to the Colosseum. 

This is an interesting take on branding.  It is definitely subtler and not so "in your face."  It is also an opportunity for these companies to "give back" to the treasures which helped make their brand, as well as making a statement to customers about their "ethics" or "ethos."  It also is an acknowledgement as to the growing inter-connectivity of "history" and "business."  I, for one, sure hope that these companies (and many more) continue to give back to the historical landmarks of the world--and, receive a huge boost in their good will for their efforts. 




 

Social Media and Discovery in Litigation

I have blogged about social media and litigation before, but it appears as if courts are starting to jump on the social media bandwagon and ordering parties to disclose their social media posts.  I am sure you have heard the stories about the attorney who sought a continuance of a hearing or a trial because s/he was going "on vacation" only for the court to discover via the attorney's Facebook posts that he was really not on vacation at the time.  Or, the litigant who claims a debilitating personal injury only to be discovered via Facebook posts that s/he can run a marathon, compete in a triathlon, or do some other incredible things despite the alleged injury. 

You may even have made sure that your social media accounts are "private" (i.e. only visible to your "friends").  That may not be enough.  Recently, a New York court ordered plaintiff to provide access to all status reports, e-mails, photographs, and videos posted on that plaintiff's Facebook profiles since the date of the accident which was the subject of her personal injury claim against defendants.  Apparently, defendants and/or their counsel trolled plaintiff's Facebook profile and discovered a photo of plaintiff--which was not protected by the privacy settings--skiing. 

In a Colorado class action sexual harassment case, defendants found Facebook content of the plaintiff wherein the plaintiff posted her financial expectations from the lawsuit, a photo of her wearing a t-shirt with a pejorative word that she claimed was used against her in the workplace, information about her emotional state unrelated to the alleged harassment, postings indicating that she was upbeat post-termination (as opposed to emotionally distressed), posts about her sexual prowess, and other information showing that her lawsuit may not have been legitimate.  So, defendants had all of this information without the need to seek a court order, right? Wrong.  Other class members posted on this plaintiff's wall such that defendants were able to convince the court that it should order those class members' social media be produced to defendants, too.  In addition, the court ordered plaintiffs to provide any cell phone used to send or receive text messages, all information necessary to access any social media websites used by the plaintiffs, and all necessary information to access any e-mail account or web blog used for communication with others or posting communications/pictures for the plaintiffs. 

In the highly open world of social media, it is important to be careful about what you put out for all to see.  I always counsel my clients to assume that every post, e-mail, etc. will be seen by anyone and everyone, including the other side. 

Jailbreaking a Smartphone is Now Legal

I must confess, I have heard of "rooting" a phone, but never "jailbreaking" a smartphone.  Now, I have said I have heard of "rooting," I make no mention as to whether I understand what "rooting" a smartphone is or even how to "root." 

Nevertheless, the United States Copyright Office recently published its exemptions to the DMCA (an act performed every three years) which included a ruling that "jailbreaking" a smartphone does not violate the DMCA.  After doing some digging, I learned that "jailbreaking" a phone is to unlock it so that it may download material from any marketplace, not just the approved marketplace.  Apparently, iPhones are the ones unlocked more often than not--this explains my lack of knowledge, since I am a proud Android user.  Of course, downloading illegal content is a no-no.

Adding to my confusion, is the fact that the Copyright Office's exemption only applies to phones purchased within 90 days of publication of the exemption.  Huh????? Oh, and do not even think about jailbreaking your tablet, that is still not allowed.  Double-huh????  Well, all I can say is come back in about three years and we can figure out if the Copyright Office catches up with the current times. 

Apple Just Can't Win for Losing

Once again, I find myself writing about Apple.  In this iteration, Apple sued Amazon.com, Inc. for false advertising and trademark infringement with respect to Amazon's "Appstore."  As you may expect, Apple claims that Amazon's "Appstore" infringes upon its "App Store" trademark. A judge recently determined that Amazon's "Appstore" does not constitute false advertising. 

The two companies remain locked in litigation over the trademark claims.  Interestingly, when battling Microsoft in earlier litigation over the "App Store" name, Apple and Microsoft hired linguist experts.  Unsurprisingly, Apple's linguist opined that the words were a proper noun and Microsoft's linguist claimed that the term was "generic" and/or descriptive of the product.  If true that the term is "generic," then it is not a trademark.  If descriptive, then Apple would have to provide additional proof that the term signifies that Apple is the source of the online store in the mind of a consumer. 

Apparently, Apple applied for registration of the mark in 2008 and it published for opposition in 2010 (which indicates that there were several office actions that Apple had to overcome).  Microsoft opposed the registration which resulted in the initiation of litigation to determine whether the term "App Store" may be a proper trademark.  Apple's registration is on hold pending the outcome of the litigation between Microsoft and Apple.    

Getting back to Apple vs. Amazon, the United States District Court, in ruling in favor of Amazon, did not find any evidence that a consumer accessing the Amazon "Appstore" would be confused by or expect it to be identical to Apple's "App Store."  Indeed, Amazon's store sells apps for Android phones/devices while Apple's sells apps for its iPhones and iPads. 

What I find interesting is that there was no ruling on the trademark aspect of the case.  Usually, courts do not give consumers enough credit and often determine that such consumers are easily confused.  However, it appears to me that with the advent of smartphones and tablets, the common usage of internet search engines, etc., consumers are actually not so easily duped.  Despite what the linguists say, I would be surprised if a significant number of consumers would believe Amazon's store to be the same as Apple's.  Hopefully, the courts will begin to give us consumers a little more credit.

Clearly Canadian is Making a Comeback

Old brand names do not die, they sometimes get revived.  I am going to be dating myself, but I remember when I was in college and a new type of sparkling water hit the markets.  It was Clearly Canadian and came in cool sounding flavors like "Orchard Peach" and "Western Loganberry."  Even the soft blue bottle was pleasing: 

Unfortunately for Clearly Canadian, it disappeared among the barrage of flavored water drinks sometime in the early 2000s.  An investor is going to retread the brand.  Apparently, there is a group of entrepreneurs who dig up old brands, purchase the name, and then attempt to cash in on the brands.  Apparently, these entrepreneurs hope to cash in on the growing nostalgia from us older folk longing for the items of our youth.  Instead of creating a brand from scratch these guys pay a small fee to the United States Patent and Trademark Office and shake the rust off of these brands which are already familiar to millions of potential customers. 

Of course, this strategy is not without risk.  Oftentimes the prior owner of the trademark may not want someone else to use the mark.  Thus, if you think you may want to relive a part of your youth by bringing a brand back to life, it would be good to research the brand's prior owner, and possibly, negotiate with the owner to avoid a costly lawsuit. 

In addition, it is not enough to sell to those of us who may remember Clearly Canadian fondly.  A "trademark rebooter" will also need to bring the product and the brand into the here and now by making it palatable to today's consumers.