by Zachary Wadlé 

Recent news reports tell of an impending legal battle between the artist of the painting at left and the Associated Press who owns the photograph upon which the painting was based. The legal battle will determine whether the ubiquitous painting of the 44th President is an original piece of artwork, or one that improperly misappropriated a photograph protected by copyright laws.

But what of President Obama’s rights in his own likeness? Can any artist commandeer the President’s likeness for his/her own commercial purposes without fear of legal repercussions? Could President Obama stop such commercial use of his likeness if he was so inclined? The answer depends on how “transformative” of President Obama’s likeness the work of art is.

Continue Reading “Transformative” or Not?

by James Kachmar

The Ninth Circuit recently addressed the issue of whether a “first publication” exclusion in an insurance policy applies to trademark infringement claims. In United National Insurance Company v. Spectrum Worldwide, Inc., et al., decided February 2, 2009, the Ninth Circuit resolved a split among lower courts and held that a “first publication” exclusion did apply under California law.

 

In December 1997, Sunset Health Products, Inc. (“Sunset”) hired Spectrum to advertise and distribute a diet drink called “Hollywood 48 Hour Miracle Diet” drink. Celebrity Products Direct, Inc. (“Celebrity”) was formed a short time later and began selling a similar product, “The Original Hollywood Celebrity Diet” drink. Spectrum then terminated its contract with Sunset and begin marketing the Celebrity diet drink.   Sunset made repeated demands that Spectrum cease infringing on its Miracle Diet trademark. 

 

Continue Reading “First Publication” Infringement Claims and Insurance Policy Exclusions

By Jeff Pietsch

Last year, Google lost the first round of a court battle against Vulcan Golf, a golf club manufacturer, in a trademark and cybersquatting dispute. In that decision, the US District Court in Illinois ruled that Google could be sued for its role in serving ads on websites that use domain names that violate trademark and cybersquatting laws. In the latest round of decisions on this case, the court denied class certification damaging the plaintiffs’ hopes in prevailing in this matter.  

 

Continue Reading Class Action Certification Denied in Google Trademark Case

By Scott Hervey

While the producers of American Idol, FreemantleMedia North America, appreciate just how much people love the show, it’s now obvious Freemantle doesn’t agree with the old adage that imitation is the sincerest form of flattery. In late December, Freemantle filed suit against a strip club in Austin, Texas that ran a stripper talent contest, and called it “Stripper Idol” and also used the American Idol logo. Freemantle claimed that the strip club owner’s use of “Stripper Idol” in connection with its stripper talent contest constitutes Federal trademark infringement because such use “is likely to cause confusion, mistake, or to deceive as to the affiliation, connection, or association” of the strip club owners with Freemantle or the American Idol program.

 

Continue Reading Stripper Idol Hits a Flat Note with Owners of American Idol

by Scott Cameron

Trademark infringement is generally the improper use of a competitor’s trademark that results in the customer buying one product thinking it is another. The classic example is when the new competitor adopts the name of the established competitor, or varies the name ever so slightly. Company A calls its new product “TheUltraWidget” to trade on the goodwill Company B has built in its best-selling “UltraWidget.”

These cases are pretty simple. If the consumer is likely to be confused by Company A’s use of Company B’s trademark, and Company B is harmed by (or Company A profits from) that use, there is actionable trademark infringement. As long as Company B can establish the elements of the claim, it is entitled to injunctive relief and monetary damages.

 

Continue Reading Metatags and Hidden Text – Hidden Trademark Infringement