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By Hilary Lamar

The United States Supreme Court issued its opinion in Hollingsworth v. Perry, 570 U.S. ___ (2013), this morning, regarding the validity of Proposition 8. The outcome is that same-sex marriage is once again legal in California. The Supreme Court did not rule on a specific right to same-sex marriage, but rather it stated that neither it nor the federal Court of Appeals for the Ninth Circuit (which includes California) had the power to hear the case. Hollingsworth is largely a procedural case, and it requires some background to fully understand.

Continue Reading Marriage Equality Returns to California

By Lisa Y. Wang

In March 2013, pop star Rihanna filed a lawsuit in the United Kingdom against TopShop, the enormously popular fast fashion chain, for using an "unflattering" image of her on one of their t-shirts without her permission (the offending t-shirt can be seen here). Rihanna is claiming £3.5 million in damages (U.S. $5 million). Rihanna alleges that TopShop used the image on the shirt without her permission, and that she is not making any royalties off of the product even though it features her face. She is also particularly upset because the image is very unflattering and the quality of the t-shirts is "poor" stating that "The base image of the first claimant [Rihanna] is of such an unflattering nature that it would not be approved." 

According to some reports, Rihanna has been trying to negotiate with TopShop for almost a year regarding the offending shirt, but they have dismissed complaints from her team and offered her a paltry US $5,000. It is interesting to note, and a smart legal move on TopShop’s part, that the shirt is only sold in TopShop’s United Kingdom locations. The reason TopShop can sell the shirts without paying Rihanna a dime is because of a loophole in the copyright laws in the United Kingdom. The loophole gives photographers ownership rights to an image. In other words, the subject of the image, in this case, Rihanna, does not own the image or its copyright. More important, England does not have strict right of publicity laws like the United States. Traditionally, there has been no protection of the commercial value of one’s persona in England.
Continue Reading A Celebrity’s Right of Publicity

By Scott Hervey

“Everyone does it” exclaimed the IT staffer in charge of the company’s website. "Everyone uses their competitor’s brand as a keyword to trigger a paid advertisement."   The company’s chief marketing officer remembers something her mother use to say about jumping off a bridge…but that’s not important right now. They received a letter from a competitor’s lawyer and it’s time to get the company’s general counsel involved.

Over the past 10 years there have been a number of cases in State and Federal courts that have addressed the question of when the use of a competitor’s trademark as a keyword is actionable infringement. For a time the focus was on whether such use was “use in commerce” as required by the Lanham Act. Some courts held that there was no use in commerce when the competitor’s mark was used as a keyword to trigger an advertisement but the mark did not itself appear in the ad copy; other courts held that such use was “use in commerce.”   The debate over whether or not such use is “use in commerce” under the Lanham Act is now dead; most jurisdictions agree that the use of a competitor’s brand as a keyword is “use in commerce.”   The focus is now on whether such use creates a likelihood of confusion.

In Network Automation v. Advanced Systems Concepts, the 9th Circuit advanced a new four factor test for determining likelihood of confusion in keyword cases: i) mark strength; ii) evidence of actual confusion; iii) the type of goods and degree of purchaser care; iv) and the labeling and appearance of the advertisements and the surrounding context on the screen displaying the results page.    Continue Reading Keyword Advertising Quagmire

By James Kachmar

We’ve become used to lawsuits being filed after a movie, TV show or song becomes a popular hit. Generally, once a show or song hits number one, someone files a lawsuit claiming that the song or show was their “idea”. ABC’s hit show “Lost” is no different. In 2009, Anthony Spinner, a television producer, writer and former studio executive brought an “idea submission” lawsuit against the American Broadcasting Company, Inc. (“ABC”) claiming that it used his ideas to develop the hit television series “Lost”. 

In the mid-1970s, Spinner was retained by ABC to develop a two-hour pilot tentatively called “L.O.S.T.” for $30,000. The script, which was completed in 1977, concerned a group of U.S. Olympians who survive a plane crash in the Himalayas. They proceed through a tunnel and discover a land inhabited by dinosaurs and prehistoric people. ABC decided to pass on the pilot, concluding it would be too expensive to produce. In 1991 and 1994, Spinner met with other executives at ABC to pitch a similar television show; however, the crash would take place in outer space. Once again, ABC passed on Spinner’s idea. 

Nearly 30 years later, an ABC executive came up with the idea of doing a show about a survivor on a desert island that would combine the elements of the hit movie “Castaway” with the hit TV show “Survivor”. He wanted to call this television show “Lost” based on a failed reality based TV show.

Continue Reading “Lost” and the Independent Creation Defense

Over the years many articles have been published describing common misconceptions in connection with intellectual property laws, yet rarely do these articles address a common misunderstanding about patent laws which will fundamentally alter many readers’ beliefs regarding the value of obtaining a patent. Some will be shocked to learn that obtaining a patent relating to an invention does not allow the patent holder to actually practice the covered invention.

On many occasions when the subject of patent law arises in conversation, it quickly becomes obvious that many believe that a United States patent gives its holder the right to practice whatever invention is covered by that patent. This belief is incorrect, and operating under this misconception could lead to significant liability. How can this be? Although counterintuitive, the answer is based on the fact that the right acquired under a patent grant is a right to exclude others from practicing an invention. The grant is not an affirmative right to actually make, use, sell or offer for sale the subject matter of the patent.Continue Reading Surprise! Your Patent Doesn’t Protect You