Category Archives: IP Matter

Do You Happen To Recall, the Most Famous Trademark of All?

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By: Brian J. Meli

It’s that most wonderful time of the year again, when kids are jingle belling and everyone’s telling you to be of good cheer. And sure, they’ll be parties for hosting and much mistletoeing, but they’ll be some grousing too—and not just over having to allow eccentric relatives access to your home and hearth. This kind of complaining has to do with the perception, right or wrong, that the true meaning of Christmas is getting buried beneath all the glitz, glamor and excess of the modern holiday season. For more on this topic, look no further than the latest scandal to rock the White House.

Arguments over the traditional theological and modern secular versions of Christmas have raged for a long time. But no matter how you view this hap-happiest time of the year, there really isn’t much debate that, for better or worse, the imagery that’s come to define the contemporary Christmas experience is derived as much from the formidable capitalist forces of mid-20th century America as it is from anything existing at the time of the birth of Christ.

Three of the most famous characters associated with Christmas, after all, have their roots in modern American consumer culture. Two of the three were actually conceived by Madison Avenue pitchmen. And when characters get created to shill products, even ones that have become beloved Christmas icons, it raises all sorts of trademark, copyright and other intellectual property issues. So before you fill up the stockings and deck the halls this year, let’s take a moment to consider who actually owns the properties we traditionally associate with Christmas.

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So Gallantly Streaming: Content, Cable and The Coming Battle Over How American’s Watch TV

 

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By: Brian J. Meli

Cord-cutting is a term thrown around so loosely these days that it’s become a well-worn noun, used in jest to describe the growing, technologically astute consumer class credited with bringing about the reversal in cable TV’s dominance. “Cord-cutters,” in addition to claiming responsibility for flagging cable TV subscription growth, and for being the source of sleepless nights for many a cable exec, are increasingly coming to represent a lifestyle choice—one championed by a generation of bold, resourceful young consumers who’ve never known a world without the Internet.

That choice: to refuse to pay for content they don’t want and never asked for.

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Roamio, Wherefore Art Thou Aereo: TiVo Picks Up The Pieces Of A Once Promising Tech Disrupter

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By: Brian J. Meli

Aereo, the company responsible for putting the fear of God in the big four television networks, and for giving every IP attorney from New York to L.A. reason to re-read the Copyright Act’s Transmit Clause, is back in the news.

In case you missed last year’s Supreme Court decision, Aereo’s over-the-air streaming television service was ruled to be in violation of the Copyright Act, essentially starting the countdown on the company’s remaining time as a going concern. However, at the time of that verdict, the technology behind Aereo appeared to have legitimate value, and many predicted that an opportunistic buyer would eventually capitalize on that value. Now, it seems, that time has come.

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Left Sharks, Sick Beats, Havoc Defense and the Trademarkification of American Pop Culture

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By: Brian J. Meli

It doesn’t seem like that long ago that trademarking was only something you did if you were a business trying to prevent customers from confusing you with your competition; when trademarks were something to differentiate your products from would-be imitators. But that hasn’t been the case for a while. Nowadays, anyone who utters a simple word or phrase, or becomes associated with a reference that gets a modicum of play on the Internet seems hell-bent on securing rights to restrict others from using it. The world, it would seem, has gone trademark crazy. When exactly did this happen? At what point did society become so obsessed with a body of law whose oft-forgotten roots lie in protecting consumers from deception?

Who knows. But thanks to a flurry of high-profile celebrity trademark applications this year, 2015 might just go down as the year that trademarks officially went mainstream. So what happens when pop-culture and trademarks collide? Some pretty amusing Patent and Trademark Office (PTO) applications—that’s what. Here’s a small sampling of some noteworthy trademark activity over the last six months. Some of which, you just can’t make up.

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May The 4th Be With Your Brand: A Legal Guide To Making Star Wars Tributes

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By: Brian J. Meli

Once every year, the inner sci-fi geek in all of us gets a chance to reclaim a sliver of that wide-eyed wonder of youth, and unite with like-minded souls in a nostalgic embrace of the pop-culture phenomenon that imbued an entire generation with the solemn precept, “may the force be with you.” Thirty-seven years after the original Star Wars movie hit the big screen, May the 4th has become a force all its own—a day fans across the world come together to pay their respects to the galaxy’s most culturally significant space drama (apologies to Star Trek fans) and to celebrate its enduring legacy. The amplifying effect of social media has only intensified the day’s popularity, raising awareness among casual fans, while inspiring new generations of Star Wars disciples.

But May the 4th has become more than just a commemoration for the young at heart. It’s also a time when marketing managers begin thinking up innovative ways to honor the Star Wars legacy. Increasingly the day has become an opportunity for Fortune 500 companies—eager to connect with the movies’ legions of adoring fans—to link their brands to the Star Wars mystique; a fact that’s becoming more apparent with each passing year. Here’s just a small sampling of what some companies have done to mark the day on social media.

Paying homage to the Star Wars universe is nothing new. The franchise is famous for inspiring fan-created content from all corners of the universe; everything from street art to homemade short films. And the vast majority of it is unauthorized. The practice is so widespread that George Lucas, the creator of Star Wars, was forced to embrace it officially rather than risk alienating the loyal fan base that helped turn his obscure space opera into a cultural movement.

However, as Jedi Master Yoda was keen on saying, “always in motion the future is.” Changing the times are, and circumstances are very different now than when the original Star Wars trilogy was in its heyday. For starters, the Star Wars properties are no longer owned by Lucasfilm, Lucas’ eponymous production company, but by The Walt Disney Company, who purchased Lucasfilm in late 2012 and has since assumed the ambitious task of evolving the franchise for a new audience by investing heavily in its future success. For another, the power of the Internet and social media have taken the production and distribution of fan content to levels that not even the most force-sensitive Jedi could have foreseen in the early 1980s. Long gone are the days when only the kid down the block with the Boba Fett jet pack could share in your Star Wars obsession. Nowadays fan sites can generate huge cult followings, and fan films, fan art and remixes and mash-ups can rival the quality of the genuine articles. While this has unleashed a new wave of amateur creativity that in many ways has been good for the movie business—generating buzz and expanding interest among the general public—it’s also precipitated the need for rights holders to increase their vigilance.

So this year, as May the 4th approaches, it’s worth taking a few minutes to consider the legal implications of paying corporate homage to Star Wars. Contrary to the mantra of the brash, no-nonsense space smuggler Han Solo—whose catch phrase “never tell me the odds” endeared him to audiences—some risks are worth measuring before making the jump to light-speed. So here are a few things to consider before your company channels the force this May the 4th:

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Mobile Apprehension: The Growing Problem of Counterfeit and Pirated Mobile Applications

By: Brian J. Meli

Most, if not all high-profile consumer brands commit considerable time, energy and treasure to safeguarding their valuable trademark and copyright assets from would-be infringers. Those efforts tend to focus on rooting out domain name cybersquatters, keeping brand names and logos off of inferior knock-offs, stemming the illegal copying and distribution of copyright-protected merchandise, shutterstock_206076736 copyand shutting down the illicit websites that notoriously traffic in all of the above. But there’s a new front in the war on intellectual property, one where the threat posed by counterfeited and pirated goods has quietly become just as insidious. Far from the big-box shelves, the online auctions and the Internet landing pages that have long been the front lines of this conflict; hidden in plain sight only a few taps away, lies a large and expanding commercial ecosystem rife with infringement activity—a place that, until recently, has operated largely outside the focus of brand enforcement officials. This relatively new and dangerous frontier is the mobile app marketplace. Continue reading

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When A Picture is Worth a Thousand Pictures: The Curious Case of Copyright Overlap

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By: Brian J. Meli

At a party over the holidays, a photographer friend of mine asked me a copyright question that seemed straightforward enough. Being an intellectual property attorney, I’m no stranger to these questions, and aside from the festive stylings of Andy Williams and Bing Crosby playing in the background, there wasn’t much different about this particular occasion. But as the question evolved into one of the more absorbing, thought-provoking discussions I’ve had in a while, I realized I’d been too quick to judge.

The topic on my friend’s mind that night concerned the rights photographers have in photographs they take of other artists’ copyrighted works. My friend, you see, is frequently commissioned to photograph famous works of art for various publicity purposes.

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