Electronic Arts, Inc. recently sued Zynga for copyright infringement alleging that Zynga copied the design choices, animations, visual arrangements, and character actions/movement from Electronic Arts's Sims Social game. Sims Social released about ten months before Zynga's The Ville. Apparently, Zynga is not new to such lawsuits. There have been others involving Mafia Wars, CityVille, and FrontierVille. Zynga settled all of these lawsuits.
As more and more of these types of games become prevalent and more and more uses find themselves absorbed in these games or other virtual worlds, there will be bigger competition to keep a user's attention. Based on Facebook friends alone, the life cycle for users to play these games is about a year or so. Which means that it is important to grab new players and keep their interest by coming out with new games or features. For the unscrupulous, this would mean copying another's work rather than creating it independently. By the time that a company created the new feature or game, the game may be passe.
I am not familiar with either Sims Social or The Ville, but I am sure that there will be updates on this case. Stay tuned.
Tuesday, August 28, 2012
Monday, August 13, 2012
Beastie Boys Rapper Says No to Turning His Music Into an Advertisement Jingle in His Will
I just read an article about the recently-deceased Adam Yauch's (of Beastie Boys fame) will which contains a provision prohibiting his songs from being used in an ad. As I wrote earlier, branding is changing and companies are now trying to find new ways to get their brands before a consumer. So, it is no wonder that some artists are doing something similar with their art. I have been guilty of looking up the name of a song I heard in a commercial, or recalling fondly a song from my youth playing in a commercial. And, who could not appreciate this little gem from Honda, or this one? And another favorite for mixing two different genres in a commercial.
Yet, in some artists' minds (like Mr. Yauch) the use of one's song in a commercial cheapens the song. I guess this is the other side of the coin that we see with fan fiction where a fan creates fiction based on another author's characters. As I wrote earlier here and here, some artists embrace these fans' work thinking that it enhances their work (and, presumably, creates additional interest in the original work). Other artists try to shut down these fan sites seeing it as an infringement on their intellectual property and ripping them off. Now, as we see from the Adam Yauch article and the commercials linked above, there are two schools of thought with regard to the use of music in an advertisement. Some artists despise it and will not allow their work to be featured in an ad, while others appear to embrace it.
In my personal experience, I have searched for and purchased songs that I have heard on a commercial on several occasions. Or, I have dusted off my old albums and put them in my Playlist de Jour because I heard a snippet of a song in a commercial. What do you think?
Yet, in some artists' minds (like Mr. Yauch) the use of one's song in a commercial cheapens the song. I guess this is the other side of the coin that we see with fan fiction where a fan creates fiction based on another author's characters. As I wrote earlier here and here, some artists embrace these fans' work thinking that it enhances their work (and, presumably, creates additional interest in the original work). Other artists try to shut down these fan sites seeing it as an infringement on their intellectual property and ripping them off. Now, as we see from the Adam Yauch article and the commercials linked above, there are two schools of thought with regard to the use of music in an advertisement. Some artists despise it and will not allow their work to be featured in an ad, while others appear to embrace it.
In my personal experience, I have searched for and purchased songs that I have heard on a commercial on several occasions. Or, I have dusted off my old albums and put them in my Playlist de Jour because I heard a snippet of a song in a commercial. What do you think?
Tuesday, July 31, 2012
A Cease and Desist Letter Written With Honey, Not Vinegar
Over the course of my practice, I have often had clients come to me after receiving a cease and desist letter. Usually, the cease and desist letter, written by an attorney trained by or from one of the "Big Firms," promises hellfire and damnation to my client unless it immediately acquiesces to their client's laundry list of demands. The demands are lengthy, and often include requiring my clients their first and second born. I am not a big fan of these types of letters, in firing off cease and desist letters indiscriminately, or such intellectual policing tactics. Unfortunately, sometimes such tactics are necessary when the other side is simply unreasonable and uncooperative.
As I often counsel my clients when they want me to send a cease and desist for them, it is usually better to try the nice approach first rather than immediately going for the mean approach. In fact, I often try to get the client to agree to ending the cease and desist letter with an offer to have a dialogue about the issues raised in the letter in the hopes of avoiding having to litigate. Other times, I try to get the client to think of ways to turn the issue into a "win-win," for my client and the other party. For many small business (and some medium businesses), litigation is bad business--well, except for us litigation attorneys who usually will get paid regardless of result.
So, when I ran across this article about the attorney for Jack Daniels sending a cease and desist letter to author Patrick Wensick over his book cover art, I was impressed. I disagree with the article saying that such a letter is "unlawyerly," since the letter gets across the conundrum that every intellectual property owner faces: if you do not protect it, you can lose it. Apparently, Mr. Wensick was impressed with the letter because he posted it on his website. I am sure that Jack Daniels did not expect, but does welcome the free good publicity. Moreover, as an intellectual property owner himself, Mr. Wensick clearly understands the issues and does not need a nasty letter telling him that he going straight to hell for infringing on Jack Daniels' label design.
Three cheers to Jack Daniels' attorney and a big thank you for reminding us that sometimes you can catch more bees with honey than with vinegar!
As I often counsel my clients when they want me to send a cease and desist for them, it is usually better to try the nice approach first rather than immediately going for the mean approach. In fact, I often try to get the client to agree to ending the cease and desist letter with an offer to have a dialogue about the issues raised in the letter in the hopes of avoiding having to litigate. Other times, I try to get the client to think of ways to turn the issue into a "win-win," for my client and the other party. For many small business (and some medium businesses), litigation is bad business--well, except for us litigation attorneys who usually will get paid regardless of result.
So, when I ran across this article about the attorney for Jack Daniels sending a cease and desist letter to author Patrick Wensick over his book cover art, I was impressed. I disagree with the article saying that such a letter is "unlawyerly," since the letter gets across the conundrum that every intellectual property owner faces: if you do not protect it, you can lose it. Apparently, Mr. Wensick was impressed with the letter because he posted it on his website. I am sure that Jack Daniels did not expect, but does welcome the free good publicity. Moreover, as an intellectual property owner himself, Mr. Wensick clearly understands the issues and does not need a nasty letter telling him that he going straight to hell for infringing on Jack Daniels' label design.
Three cheers to Jack Daniels' attorney and a big thank you for reminding us that sometimes you can catch more bees with honey than with vinegar!
Tuesday, July 24, 2012
Apple v. Samsung Over Galaxy and a Schizophrenic UK Court Ruling
In another chapter of the international legal saga between Apple and Samsung over their intellectual property relating to their tablets (iPad and Galaxy), a UK court made an interesting ruling. While the UK judge found that there was no infringement by Samsung of Apple's design rights, he also will allow Apple to opine that Samsung infringed its design rights. What? Yes, you read that correctly, but wait, it gets better. The same judge ordered Apple to pay for ads in various UK media and on Apple's website to correct the impression that Samsung violated Apple's design rights in the iPad.
From what I understand of this ruling, it is about as schizophrenic as any ruling I have ever seen. On the one hand, the court finds that there is no infringement of Apple's design, requires Apple to place ads stating that Samsung's Galaxy tablets do not copy Apple's iPad design, but allows Apple to claim, as an opinion, that Samsung infringed the design of the iPad. Of course, Apple states that it plans to appeal this ruling. It will be interesting to see if the ruling withstands the appeal.
From what I understand of this ruling, it is about as schizophrenic as any ruling I have ever seen. On the one hand, the court finds that there is no infringement of Apple's design, requires Apple to place ads stating that Samsung's Galaxy tablets do not copy Apple's iPad design, but allows Apple to claim, as an opinion, that Samsung infringed the design of the iPad. Of course, Apple states that it plans to appeal this ruling. It will be interesting to see if the ruling withstands the appeal.
Friday, July 6, 2012
Settling with Proview Bought Apple Two New Lawsuits in China
Well, after settling with Proview for its iPad name, Apple appears to have bought two more lawsuits over its intellectual property in China. Thursday, a company named Zhi Zhen Internet Technology sued Apple over Siri. Zhi Zhen alleges that Siri infringes its voice assistant service patents named Ziao i Robot. According to reports, Zhi Zhen applied for its patent in 2004. Apple recently announced adding Mandarin and Cantonese versions of Siri which undoubtedly is what caught Zhi Zhen's attention. Of course, the recent $ 60 million settlement with Proview must have caught Zhi Zhen's eye, as well.
Jiangsu Xuebao is also suing Apple for allegedly infringing its Snow Leopard trademark. Apparently, Jiangsu registered the Chinese equivalent of Snow Leopard in 2000. In 2008, Apple tried to register that same word, but the Chinese trademark authority refused to register that name. Presumably, the denial of registration stemmed from Jiangsu's prior registration. Jiangsu seeks $ 80,000 and an apology. The timing of this lawsuit is curious, indeed.
It seems as if Apple is caught in the Chinese conundrum. It is a huge potential market. It also is ambivalent to intellectual property protection. I am sure there will be more to these stories.
Jiangsu Xuebao is also suing Apple for allegedly infringing its Snow Leopard trademark. Apparently, Jiangsu registered the Chinese equivalent of Snow Leopard in 2000. In 2008, Apple tried to register that same word, but the Chinese trademark authority refused to register that name. Presumably, the denial of registration stemmed from Jiangsu's prior registration. Jiangsu seeks $ 80,000 and an apology. The timing of this lawsuit is curious, indeed.
It seems as if Apple is caught in the Chinese conundrum. It is a huge potential market. It also is ambivalent to intellectual property protection. I am sure there will be more to these stories.
Monday, July 2, 2012
Apple Buys iPad Name from Proview
As I wrote a few months ago, a Chinese Company, Proview Technologies, was the purported owner of the iPad name in China. Well, as suspected, Apple was essentially left with no choice, but to pay to get the iPad name back. According to reports, after a round of mediation, Apple settled its dispute in the Chinese courts by transferring $ 60 million to an account the court designated.
As you may recall with regard to the dispute, Apple thought it had purchased the global rights to the iPad trademark when it bought Proview's parent company. Proview, a financially troubled company, disagreed and embarked upon attempting to secure payment for its mark through several lawsuits. After two years rumbling through the Chinese Courts, Apple finally succumbed. Apple now owns the iPad trademark in China and may continue with its planned expansion into that market.
As you may recall with regard to the dispute, Apple thought it had purchased the global rights to the iPad trademark when it bought Proview's parent company. Proview, a financially troubled company, disagreed and embarked upon attempting to secure payment for its mark through several lawsuits. After two years rumbling through the Chinese Courts, Apple finally succumbed. Apple now owns the iPad trademark in China and may continue with its planned expansion into that market.
Tuesday, June 12, 2012
Regular Joes Are Making an Impact on Patent Litigation and Advertising
Two articles I read recently discussed how companies are saving costs by enlisting people "off the streets" to assist them. The first article discussed how Silicon Valley companies who face exorbitant costs of patent litigation seek the help from the masses to conduct prior art searches.
This is how it works: a company called Article One Partners LLC allows a company like Apple, Microsoft, etc. post a description of the technology for which they are being sued and allowing them to post awards for those who find the prior art. The award is larger the better the prior art. Article One then hires students, techies, and others on a part-time basis to search for the elusive prior art. These people submit photographs, literary references, foreign patents, and other obscure documents which they hope is enough to convince the technology company that it can invalidate the patent being enforced against it.
I was involved in a patent case which cost hundreds of thousands of dollars for the patent validity search alone. I recall the attorney who conducted the search (a very thorough guy) filled a room full of bankers boxes worth of items which could or could not be prior art. Article One Partners puts the search in the hands of amateurs who do not charge the hourly rates of the attorneys. The company's attorneys undoubtedly review the submitted prior art, but utilizing the services of Article One Partners can save a technology company a boatload in attorneys' fees and costs. While Article One Partners services big companies, it could be an invaluable tool for a small startup company facing a patent lawsuit from a huge conglomerate.
The second article discussed a company called Poptent, Inc. which appears to have gathered inspiration from the Doritos Crash the Super Bowl Contest from a few years back. In case you forgot, Doritos held a contest asking amateurs to create and submit a commercial with the best one(s) being shown during the Super Bowl. The winning commercial cost the group of filmmakers who created it $ 12. The cost of using Poptent's stable of students, hobbyists, and film school graduates to create a television commercial costs a company about ten percent of the cost of using a traditional advertising firm. That is a huge savings.
The lesson learned from these articles is that a company should think about utilizing other resources rather than the "traditional" ones which may be outside of that company's budget. In my practice, I am always trying to work with my clients to achieve a quality product that fits within their budget.
This is how it works: a company called Article One Partners LLC allows a company like Apple, Microsoft, etc. post a description of the technology for which they are being sued and allowing them to post awards for those who find the prior art. The award is larger the better the prior art. Article One then hires students, techies, and others on a part-time basis to search for the elusive prior art. These people submit photographs, literary references, foreign patents, and other obscure documents which they hope is enough to convince the technology company that it can invalidate the patent being enforced against it.
I was involved in a patent case which cost hundreds of thousands of dollars for the patent validity search alone. I recall the attorney who conducted the search (a very thorough guy) filled a room full of bankers boxes worth of items which could or could not be prior art. Article One Partners puts the search in the hands of amateurs who do not charge the hourly rates of the attorneys. The company's attorneys undoubtedly review the submitted prior art, but utilizing the services of Article One Partners can save a technology company a boatload in attorneys' fees and costs. While Article One Partners services big companies, it could be an invaluable tool for a small startup company facing a patent lawsuit from a huge conglomerate.
The second article discussed a company called Poptent, Inc. which appears to have gathered inspiration from the Doritos Crash the Super Bowl Contest from a few years back. In case you forgot, Doritos held a contest asking amateurs to create and submit a commercial with the best one(s) being shown during the Super Bowl. The winning commercial cost the group of filmmakers who created it $ 12. The cost of using Poptent's stable of students, hobbyists, and film school graduates to create a television commercial costs a company about ten percent of the cost of using a traditional advertising firm. That is a huge savings.
The lesson learned from these articles is that a company should think about utilizing other resources rather than the "traditional" ones which may be outside of that company's budget. In my practice, I am always trying to work with my clients to achieve a quality product that fits within their budget.
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