Craft Beer Pun Redux

You may recall my blog about the thinning of the possible names for craft beer.  Well, it seems there is another way that a craft brewery can find itself on the wrong side of a trademark dispute.  A brewery in Auburn, California, Knee Deep Brewing Company, has a "Breaking Bad"-themed IPA (Indian Pale Ale for those not hip to brew designations).  Knee Deep's Breaking Bud IPA earned a bronze at the Great American Beer Festival in 2016.  Alas, one of Breaking Bad's production companies, Sony Pictures Television ("Sony") was not as enamored with Knee Deep's concoction and sued the brewery for trademark infringement and trademark dilution. 

According to the statement released by Knee Deep's CEO, the lawsuit came as a complete surprise because Sony representatives had expressed appreciation for the "call out" to the show in 2015 or so.  He also went on to explain that Knee Deep and Sony explored the possibility of a more formal partnership between the brew and the show, but ultimately decided not to do so.  He also makes clear that the name of the IPA was a joke and any dispute should have been raised by Sony in 2015, not via lawsuit in 2018.

If what Knee Deep's CEO claims is true, that may mean that Sony's lawsuit just got harder.  It certainly would lend credence to the argument that Sony acquiesced to Knee Deep's use of the name, and therefore, would be estopped from asserting its claims now.  Stay tuned.

From Comic Con to Coachella

Well, the Coachella Valley Music and Arts Festival recently took place in Indio.  As expected, plenty of entities tried to use the "chella" suffix for their products or events.  Coachella Valley Music and Arts Festival ("Coachella") did not find this form of copying flattering.  For example, the Palm Desert Whole Foods announced a concert and tasting event it called "Wholechella."  That caught the attention of Coachella who immediately sicced its attorneys on Whole Foods.  Whole Foods took the path of least resistance and changed its event name to the Pre-Fest Beer Garden.

Similarly, Sean "Diddy" Combs tried to organize an event (a Bermuda Dunes bash) and named it "Combschella."  Then there was the "Hoodchella" for a rap festival and "Filmchella" for a movie festival.  All of these "chellas" raised the ire of Coachella and had to change the name of their event to remove the reference to "challa." 

In addition to being aggressive in protecting its trademark, Coachella also protects its turf.  For example, Coachella's artist contracts includes a "radius clause" which prohibits artists performing at Coachella from performing at music festivals or other events within a five-state radius of California from December to May.  Well, the organizers of "Soul'd Out Music Festival" who could not book some artists because of the aforementioned radius clause were not amused.  Soul'd Out is in Portland, Oregon and was not happy that it could not book artists who were playing at Coachella.  So, Soul'd Out sued claiming that the radius clause was a violation of antitrust laws.  Stay tuned.

Comic-Con v. Comic Con Update

A while back I opined that there was a potential settlement between the parties in the lawsuit between the San Diego Comic-Con and the Salt Lake Comic Con.  Well, apparently, the two sides were not able to resolve their dispute and went to trial in San Diego.  As I mentioned in my earlier blog post, Salt Lake Comic Con ("Salt Lake") argued that the term "Comic Con" was a generic term for a comic convention.  In case you need a refresher, in general terms when a trademark no longer represents the source of the good or service and becomes the name of the good or service, it loses its value as a trademark.  For example, Escalator once was a brand of moving staircase, but has since become the name of the thing itself.  Salt Lake's argument was a little different than most genericide arguments.  Usually, the genericide argument is that the mark transforms into the item (a la "escalator").  However, in this instance, Salt Lake argued that the term "Comic Con" was never able to be a trademark because it identified the type of convention being held (i.e. a comic convention or "comic con").

Unfortunately for Salt Lake, the jury in San Diego did not buy this argument and found in favor of San Diego Comic-Con ("San Diego").  Notably, the jury only awarded a somewhat minimal amount of damages (I read somewhere that the award was $ 20,000).  This award amount indicates that the jury may not have been thoroughly impressed with the strength of the mark "Comic-Con."  Keep in mind that there are several of these "Comic Cons" around the nation.

Needless to say, it appears as if this matter is headed for appeal.  Stay tuned.

Branding To Attempt to Widen Your Market

Diageo, PLC, owner of the Johnny Walker Scotch and other spirits, is seeking to enhance its market by appealing to women to drink its Scotch.  Diageo's marketing campaign started with a "#LoveScotch" campaign which showed photos of women (young ones) drinking Scotch together.  These photos were blasted on billboards and across social media platforms.  Diageo apparently finally figured out that Johnny Walker was primarily a "man's" drink and wanted to change that notion.  So, Diageo began its campaign to include members of the opposite sex whom it ignored for years. 

Diageo's next step was to roll out a female-branded version of its Johnny Walker Black Scotch.  Notably, Diageo is altering its logo from this:

To this:

While this logo change is for a limited time, it certainly gets the point across as to who the target audience is for Diageo.  This ad campaign is quite a change for a label that only targeted men in its ads just a short time ago.  Clearly, the new ad campaign to target female Scotch drinkers is a nod to the fact that more women are drinking Scotch than before which could be a reaction to more Scotch makers adding new flavors (e.g. honey, maple, etc.).  The times, they are a-changing and smart companies are changing with them.

Emojis and Legal Disputes

I must admit, I am an emoji neophyte.  Anything past the smiling, laughing, or thumbs up emoji baffles me.  I honestly have no idea what some of the emojis mean.  Now, it appears that emojis are causing quite a stir in the legal world.  Recently, emojis have become the source of contention in all kinds of lawsuits (ranging from business disputes to harassment to defamation).  For example, the meaning of an emoticon--apparently, this is slightly different than an emoticon.  Who knew?  ¯\_(ツ)_/¯  

For example, in a defamation lawsuit, the issue is what the emoticon, ":p" means.  It represents a face with its tongue sticking out. That case involves a comment on a message board that accused an official of corruption.  The poster inserted the emoticon at issue after his/her accusation.  According to the Appellate Court, the insertion of the emoticon negated the defamation claim because the emoticon denotes a joke or sarcasm.  Thus, according to the court, the defamatory comment cannot be taken seriously because it was a joke or a sarcastic statement.

In another case, a sexual harassment case, the question is the significance of a red-lipstick kiss mark emoji used by an employee to an employer in response to sexually explicit texts. Was this an acquiescence to the advances of the employer or just a polite reply in an attempt to distance herself from the employer?  According to the attorneys in the case, the testimony of the employee about what she meant to convey may not resolve the issue. 

These are only a couple examples as to how emojis and emoticons can confound us attorneys and judges. According to Eric Goldman, a Santa Clara University School of Law professor, emojis or emoticons "appeared" in 33 state and federal cases.  This number is undoubtedly going to keep increasing as people continue to increase their use of technology to communicate and the creators of such technology keep creating more and new emojis.   

U.S. Army's "War" With the Las Vegas Knights

I must admit, I am a fairly casual hockey fan.  However, the Las Vegas Golden Knights caught my attention when they catapulted to the top of their division (they currently hold a ten point lead over the second place team) as an extension franchise.  For those of you who are unaware, the Las Vegas team is in its first year ever.  The general rule is that new franchises usually do not perform at a high level--they usually are the team that every other team in the league beats quite easily.  New franchises usually flounder for the first couple/few years of their existence.  But, not the Las Vegas Golden Knights.  They hold the best home record in the league, are among the top six teams in goals, and are successful when going into overtime. 

For reference, the Minnesota Wild only won 25 games in their first season.  It took the Wild three seasons to make the playoffs.  The Columbus Blue Jackets only won 28 games in their inaugural season.  It took the Blue Jackets nine seasons to make the playoffs.  Currently, the Las Vegas Nights have won 39 games this season.  They are tops of the Western Conference and look to be a shoo-in for making the playoffs. 

Yet, they have found themselves embroiled in a fight with the United States Army.  The Army opposes the Knights' trademark application to register "Vegas Golden Knights." Apparently, the "Golden Knights" is a nickname used by the Army since the 1960s for its parachute team, its public relations, and recruiting.  In addition, the Army claims that it has common law trademark rights in the black/gold and yellow/white color schemes which are the colors of the Las Vegas Knights.  As I understand it, both sides were aggressively fighting the other.  At stake for the Las Vegas Golden Knights would be that they would have to change their name and, potentially, their color scheme.  Given the amount of time, effort, and resources expended by the team to build their brand, that would be a huge set back. That is probably why the hockey team filed a settlement motion with the Trademark Trial and Appeal Board yesterday.  The settlement motion seeks to work out a deal where both sides can continue to use their respective marks. 

Even if the Army and the Las Vegas Golden Knights can reach an agreement, the College of Saint Rose in Albany, New York is lurking.  Their nickname is the "Golden Knights."  The College filed a request for an extension to oppose the hockey team's trademark application which means that they may decide to deny the hockey team the right to the mark--as did the Army. 

From Napster to Now

When the battle between the record companies and Napster raged in the early 2000's, the record labels held all of the power to control music and musicians.  To be fair, the labels would spend quite a bit of money on the front end of a musician's or band's career to get them started without any real guarantee that they would recoup anything on their investment.  The stories were fairly common, big musical acts would find themselves owing more than they were making because of the labels' early investment.

After Napster and with the advent of streaming services, the artists were able to take more control over their careers and their music.  It also allowed others to use another's music in various settings.  As I've written before, the proliferation of streaming services can be a boon or a bane to musicians depending on their perspective.

Unfortunately for the artists, this change has meant that record companies are less willing to invest on the front end because there will not be as many record sales.  That means that artists must tour and promote themselves on a shoestring budget.  Many will not "make it big." However, musicians, being the resourceful and creative types, have found other ways to earn some money for their art.  They license their music to commercials, shows, movies, or other similar kind of placements.  If able to do so, this helps the artist(s) gain some publicity which cloaks them in legitimacy.  Legitimacy makes it easier to market their art and book themselves for other venues.  I know for me, I have discovered some songs from commercials or television shows.  For example, the Dodge Ram commercial featuring "California Soul" by Marlena Shaw and "When I'm Small" by Phantogram from the Gillette Proglide commercial.

Just as advertising is changing to keep up with consumer's tastes, needs, and shortening attention span, so is the music industry.  It is going to be interesting to see how it evolves next.  Stay tuned.