It only took four days, but four days was enough time for New York City fashion designer Joseph Mbeh to file an application with the United States Patent and Trademark Office seeking to register a trademark for “Blue Ivy Carter NYC.” Not coincidentally, “Blue Ivy” is the name chosen by Beyoncé and Jay-Z for the daughter born to them on January 9, 2012. The application is still pending before the United States Patent and Trademark Office, and alleges that Mbeh first used this mark “at least as early as January 9, 2012.”

Similarly, as you may recall, it was nearly a year ago when Governor Sarah Palin filed a trademark application seeking registration of her own name. Although Ms. Palin’s application was the topic of many jokes on late night television programming, as will undoubtedly be the case regarding the “Blue Ivy” mark as well, you may be surprised to learn that the Trademark Act of 1946 contains specific provisions allowing a person to obtain a trademark covering their name. Chapter 1300 of the Trademark Manual of Examining Procedure (“TMEP”) defines the criteria which, if met, permit a person to successfully obtain a trademark covering their name. Not unlike other trademark applications, the application must cover a mark which identifies the goods or services associated with that mark, and must function as an indication as to the source of those goods or services while distinguishing them from others. As a result, any person may seek registration of their name, provided they can demonstrate that their name is so distinctive that the public immediately thinks of them when the name is heard. 

Continue Reading Is A Trademark Application An Appropriate Gift At A Baby Shower?

By: James Kachmar

In late December, the Ninth Circuit revisited the “safe harbor” provisions of the Digital Millennium Copyright Act (“DMCA”) in the case UMG Recordings, Inc. v. Veoh Networks, Inc., 101 U.S.P.Q.2D (BNA) 1001. Veoh is a web service that allows users to view videos uploaded by other users.   Veoh was sued for copyright infringement by UMG, one of the world’s largest music and music publishing companies. 

Before a user can upload and share a video, on Veoh’s site, he/she must agree to Veoh’s publisher terms and conditions and terms of use, both of which bar the user from uploading any videos that infringe on another’s copyrights. Also immediately prior to uploading a video, a message appears on Veoh’s website warning the user not to upload infringing videos. 

Continue Reading Revisiting the “Safe Harbor” Provisions of the DMCA

By Nathan Geronimo

Kinbook, LLC, an online social networking company, recently sued Microsoft for unfair competition and reverse trademark infringement in United States District Court.  (Kinbook, LLC v. Microsoft Corp.,2012 U.S. Dist. LEXIS 8570.) Kinbook created a Facebook application called “Kinbox,” which allows Facebook users to create private sub-social networks for sharing of information within a subset of their list of Facebook friends.  Kinbox was formally launched on Facebook in December 2009, and Kinbook’s use of the Kinbox mark was approved in September 2010.

In November 2010 Microsoft released “Kinect,” a motion-sensor interface device for the XBOX 360 that allows users to control the XBOX 360 through gestures and voice commands.  In April 2010, Microsoft released the “Kin” phone, a mobile smart phone for use with the Verizon Wireless mobile phone service.  Microsoft stopped production of the Kin after just two months due to a lack of consumer demand for the product.

Continue Reading Court Finds Kinect and Kinbox Not Kinected

By Zachary Wadlé

In my last column of 2011 I wrote about the proposed “Stop Online Piracy Act” (“SOPA”) introduced in the United States Congress to provide the government with enhanced, but highly controversial, tools to fight online copyright infringement. As I noted, SOPA “spawned a fierce public relations and lobbying battle between Silicon Valley and Hollywood that will play out in the media and in the halls of Congress in the months to come.” Despite the spotty record of my predictive powers, these words turned out to be prescient. The debate over SOPA has blown up in recent weeks, culminating with Wikipedia’s (and many other well-known internet sites) decision to black out their website on January 19, 2012. Google got in on the act too by “censoring” the Google logo on its homepage, (but still allowing use of its search engine and all other Google web services).

The online blackout led by Wikipedia had an immediate effect. The next day, Senate Majority Leader Harry Reid (D-NV) and Congressman Lamar Smith (R-TX), chairman of the House of Representatives Judiciary Committee, postponed critical votes on SOPA (and its companion Senate Bill – the “Protect Intellectual Property Act” or “PIPA”). Rumors swirled that Reid did not have the necessary 60 votes in the Senate to move the legislation past a key procedural hurdle, and Smith said, “I have heard from the critics and I take seriously their concerns regarding proposed legislation to address the problem of online piracy.” For now, the legislation is tabled for further negotiation and re-drafting in light of the substantial criticism from internet heavyweights.

Continue Reading ONLINE PIRACY WAR HEATS UP

 

By: David Muradyan

 

The Copyright Act of 1976 provides copyright protection for original works of authorship fixed in any tangible medium of expression forthe owner’s literary, musical, artistic and other works. Owners of copyrights have a number of exclusive rights, including the right to reproduce the copyrighted work in copies, to prepare derivative works based upon the work, and to distribute copies of the work to the public by sale or other transfer of ownership. One who uses another’s copyrighted material without permission from the copyright owner may be liable for copyright infringement, unless that person can demonstrate that the use was “fair use,” which is an affirmative defense to copyright infringement. 

 

Copyright and Copyright Infringement

 

The Constitution authorizes the Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const., Art. I, § 8, cl. 8. In exercising this power, Congress must balance “the interest of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). Congress crafted a comprehensive statutory scheme governing copyrights with the enactment of the Copyright Act.

Continue Reading The “Fair Use” Doctrine in Copyright Infringement Actions