Likelihood of Confusion, Part II

According to this story at Bloomberg.com, Apple is going to call its watch the "Apple Watch" rather than "iWatch" because the European trademark for "iWatch" is owned by Dublin-based Probendi.

According to the story, Probendi plans to market its own smartwatch and call it iWatch.  Now here's the confusing part: the iWatch is going to be an Android watch.  

Pizza flavor not subject to Federal TM protection

Last week, the U.S. District Court for the Southern District of Texas (Galveston) issued a decision (link here) holding that the flavor of pizza is not subject to trademark protection, because (a) it's not distinctive, and (b) it's functional.

As to the second reason: I agree completely. 

As the first: it's Texas pizza.  How can they tell?

Are tweets subject to copyright?

Emma Pauw, "social media writer" at We Talk Social (http://www.wetalksocial.co.uk/) asks the question in a piece in B2C (link here).

Actually, the question she asks is "Can You Copyright a Tweet?"

Under the Berne Convention, copyright vests upon creation. So you don't have to "copyright" anything.  It is, or it isn't.  Now, if you want to enforce your copyright, you may have to register your work with a government agency - in the U.S., the Copyright Office is part of the Library of Congress. If you want to sue for copyright infringement in U.S. District Court, you need to register it with the Copyright Office.  But the registration doesn't "copyright" the work.  

That's not the interesting part. 

Under U.S. law, copyright "subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."  17 USC 102(a).

A tweet clearly can be an "original work of authorship."  But it doesn't have to be.  Let's assume that it is. (For a serious discussion of this issue, check out this post from WIPO).

A tweet "can be perceived, reproduced, or otherwise communicated...with the aid of a machine or device."  

The question is:  is a tweet "fixed in [a] tangible medium of expression?"  I say "yes," because if it's possible to copy a tweet, (and it clearly is), then it's "fixed" enough to qualify.  Put another way, I don't know of anything that can be copied exactly, that's not  considered fixed in a tangible medium of expression.  

And of course, if you want to sue somebody for infringing your copyrighted tweet, you have to send it to the Copyright Office, which means that you have to "fix" it so you can submit it. So that's that.

Should you bother?  Probably not.  

In other news, Don Henley is still...not dead

Everybody's talking about Michelle Lee being named as the new USPTO Director. This has to qualify as the Least Surprising Patent-Related News Story of 2014.  So that's all I have to say about that.

Instead, I want to talk about Don Henley.  

Yes, that Don Henley.  Don has sued clothing retailer Duluth Trading Company for trademark infringement (full story here).  They sell, among other things, Henley shirts. 

Like that.  

According to this entry in Wikipedia, the Henley shirt is "so named because this particular style of shirt was the traditional uniform of rowers in the English town of Henley-on-Thames."  Nothing whatsoever to do with the Eagles' drummer.  So why's Don suing?

DTC recently sent out an email ad promoting their Henley shirts with the slogan, "Don a Henley and Take it easy."

Like that.  BTW, check out Henley's hair in that clip.  Amazing.  That, kids, is '70s hair.

Anyway, apparently DTC didn't ask Don's permission before sending out the aforementioned ad.  What is clear is that Don has no sense of humor when it comes to somebody trying to trade in on his mojo.

Speaking of Don Henley's mojo, if you haven't heard Mojo Nixon's "Don Henley Must Die" you can give it a listen here:

And then read this article from the Austin Chronicle about a time more than 20 years ago when Don did have a sense of humor.  

If your patent application has been pending more than three years, should you throw in the towel?

Dennis Crouch posted the following graph at Patently-O:



It shows that for all cases that were filed before 2010, the number of patented cases as a percentage of the total is about 60%, and that the principal change is pending cases going abandoned.  This suggests that if you've got an application that was filed before 2010 and it's still pending, your chances of getting it allowed are slim.  

Likelihood of confusion? Uh, yeah.

According to a blog post by William Breathes on Denver Westword (full story here), candy giant Hershey has settled its trademark infringement case against Colorado cannabis-edibles producer TinctureBelle.

This is the kind of stuff that got Hershey's attention:

Apparently, TinctureBelle changed its packaging fairly dramatically, so, for example, Hashees peanut butter cups now come in a package with this label:

Now, as you know, trademark infringement centers on "likelihood of confusion."  Is the ordinary consumer going to mistake the allegedly infringing product for the real McCoy?  Often, this kind of thing is proved in court by providing results of surveys that show that consumers are confused.

This case raises a number of interesting questions in connection with surveys.  If you're going to prove likelihood of confusion for this kind of product, do you need to survey people who are going to use the product?  Who are, likely, already high?  Does the standard for "likelihood of confusion" change if the consumers in question are already confused, just generally?  How do you normalize for the munchies?

In any event, now that they've settled with Hershey, TinctureBelle only has to worry about Disney.

Primer on software patents for laypeople

Definitely not patentable

VOX (link here) has a decent primer on software patents for the novice.  Not an in-depth analysis by any means, and it does contain a couple of howlers, including my favorite: 

The Federal Circuit has always had a pro-patent bias, and in a series of decisions in the 1990s, it removed all meaningful limits on patenting software.

Yes, that's right, since the '90s (right up to Alice Corp. of course) there were no meaningful limits on patenting software.  None!   No wonder we're in this mess.  

Does Pat Riley Really Own "Three-Peat?"

I just read George Gurley's column (link here) about rampant trademarking of terms everybody uses, and speculating on how he can get rich by trademarking other commonly-used phrases.  I know, dumb.  

But it got me wondering: does Pat Riley really own a U.S. Trademark on the term "three-peat?"  For you non-sports fans out there, the term refers to winning three championships in a row.

Short answer: Yes.  U.S. Trademark Reg. No. 74508157.  

Longer answer: The live registration only covers "collector plates, mugs, and tankards."  Marks covering the use of the term on "non-metal key chains and plaques,"on "shirts, jackets and hats," and on "bed covers, namely, bed linen, bed blankets, bed pads, bed sheets, and bed spreads" are dead.  HOWEVER, Riley also has a live mark on the term "3-peat" (Reg. No. 86285769) covering "Bed Covers, Namely, Bed Linens, Bed Blankets, Bed Pads, Bed Sheets and Bed Spreads, and Towels."

[Typing "bed" over and over again is making me woozy.  Bed bed bed bed bed.]

But back to George Gurley's point:  go ahead, say "three-peat" all you want, you won't owe Pat Riley a penny. 

Darth Vader's Breath Sounds Are Registered at the USPTO

Coolest thing I've read all day (hat tip: Kelsey Campbell-Dollaghan at gizmodo.com  - link to story here).

You can hear the "sound mark" at the USPTO website here.

Are patents the problem?

That's the title of an article by Tamar Haspel appearing in the Washington Post (link here) that looks at the relative merits of patents on living things, particularly plants.

From the title, I expected an anti-patent screed.  What I read was a thoughtful piece that takes a realistic look at the positives and negatives.  Which surprised me.  But don't take my word for it - go read it yourself.

My only real criticism is that the article appears in the Food section, instead of Section A, where it belongs.  

Who owns the copyright on a course syllabus?

An article by George Leef in Forbes (link here) calls out a recent ruling by the Missouri Court of Appeals, upholding a lower state court decision that the University of Missouri need not provide copies of course syllabi under a "sunshine law" request, because such copying would violate the professors' copyright in their syllabi.

The decision (here) analyzes the question of whether syllabi are subject to copyright and, finding that they are, decides that fair use is not applicable because fair use is a defense to a charge of copyright infringement, and not a pre-emptive doctrine to authorize copying before the fact.  Which once again shows that it's better to ask for forgiveness than for permission.

But the part that the Court leaves out is whether the copyright to the syllabi properly lies with the faculty, or with the university.  The university's position is that the syllabi are the property of the faculty, and that it's not authorized to make copies without permission.

Anyone who has dealt with intellectual property issues and major research universities will not be surprised to learn that the University of Missouri has a copyright policy (link here).  Section 100.030.A.1 states, 

1. In conjunction with the University Conflict of Interest Regulations 330.015 and the University Patent Regulations 100.020 as they may be amended from time to time, this policy governs the rights and responsibilities of University employees, students, and of any other persons using University facilities or resources in the creation of original works of authorship subject to protection by copyright law. The faculty will continue to hold copyright for traditionally accepted intellectual property that is developed in their roles as teachers and scholars subject to the provisions of section 2 herein. These include, but are not limited to such materials as books, workbooks, study guides, monographs, articles, and other works including music and performances, whether embodied in print, electronic format, or in other media.

It's that "Section 2" proviso that's the kicker.  Section 2.b provides that "The University will own the copyright in materials that are...created by employees if the production of the materials is a specific responsibility of the position for which the employee is hired."

As a former college professor, I can state with a high degree of confidence that the production of a course syllabus is a "specific responsibility" placed on faculty by the university.  Accordingly, the copyright on the course syllabi is held by the University, not by the faculty.

Why this apparently didn't come up during the case is a complete mystery to me.