Naked Cowboy threatens Naked Cowgirl with trademark infringement…really

Weirdly, he might have a pretty good basis for an infringement claim.

Here is the article at Gawker.com

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Huge Facebook battle on the horizon?

Amazon now owns a patent on “social networking.” This could be interesting.

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We need a national anti-SLAPP law, like, yesterday.

Here is what the Public Participation Project, the group behind the proposed bill, HR 4364 has to say:

Regardless of who is speaking and who is suing, everyone is losing when SLAPPs are allowed to continue. These meritless lawsuits clog the courts, waste resources and contribute to a general culture of litigousness. Instead of answering speech with speech, SLAPP filers answer speech with subpoenas and spurious claims.

SLAPPs frequently end in settlement, conditioned on silence, apology or retraction, so important ideas are excised from the debate, and critical information – about health, safety, economic security, civil rights and liberties, and government abuse – is withheld from the public. Would-be participants in public life see the devastating effects of lawsuits – on life savings, employment, reputation and even staying insured – and think twice before speaking out.

Judge Nicholas Colabella, Jr., famously said of SLAPPs that a greater threat to First Amendment rights can scarcely be imagined. SLAPPs chip away at the will and ability to speak out, person by person, group by group, issue by issue. James Madison cautioned that “there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations,” and his words ring true in the SLAPP context.

Agreed. See also poor Justin Kurtz’s battle with a soft-skinned tow truck company owner here.

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Did AT&T infringe on Christo’s works?

Well, if internet polls are any indication, maybe so. The art in the ad looks like a cross between Christo’s “wrap” works and The Gates. AT&T also placed a disclaimer on its ad that the commercial was not related to Christo’s works, which seems to show that the company knew there was some similarity…in fact, I envision a Mad Men-type ad meeting in the boardroom: “it will be like Christo. It’s artistic and modern, yet organic. These images speak to the unity of mankind, brought to you by AT&T.” Or something like that.

Christo’s lawyers are complaining to AT&T. This would be a very interesting infringement suit if the dispute doesn’t settle.

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Subway fights for “footlong” trademark

It is difficult to obtain rights to a proposed trademark where it is “descriptive” of the product. For example: Spicy Salsa, or Superfast Internet Service. If the public begins to associate the mark with the goods or services provided by the business, such a descriptive mark obtains “secondary meaning” and might be able to be registered with the USPTO.

Subway has been prosecuting the right to the exclusive use of “footlong” in relation to its sandwiches, which on first blush appears to be at least descriptive, and maybe even a generic, term. Apparently, the USPTO has made a preliminary finding that due to Subway’s extensive marketing campaign, “secondary meaning” has been implanted in the minds of the sandwich-eating public, and the mark might be protectable. Of course, competitors are contesting registration of the mark, claiming that “footlong” is generic for a sandwich 12″ in length. I see a problem for all “foot long” hot dog sellers and hoagie shops in the future if Subway obtains registration. Personally, I think Subway is measuring the merits of its claim with a bit too much confidence.

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Beware ACTA

The Anti-Counterfeiting Trade Agreement (ACTA), currently at the end-stages of global negotiation, has been presented by industry proponents as a well-balanced measure to thwart counterfeit goods and Internet piracy.  However, the treaty has very scary implications for free expression, privacy, and due process on a global scale.  See the Electronic Freedom Foundation’s comments here.

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Speaking of SLAPP suits…

Here is an article about a case in which I represent a defendant (legendary Tacoma rock-and-roll band – Girl Trouble) accused of defaming the nationwide “music production” company Gorilla Productions, Inc.

http://www.thenewstribune.com/2010/04/23/1159800/band-hit-with-lawsuit.html.

Read more here: http://www.weeklyvolcano.com/music/features/2010/04/girl-trouble-tacoma-band-sued-gorilla-productions/print/

and here: http://lineout.thestranger.com/lineout/archives/2010/04/28/girl-trouble-gets-hit-by-lawsuit-over-anti-pay-to-play-website

I will leave it to others to discuss the merits of the claim, you know where I stand – on the side of free speech!  You can read the details of the complaint at http://www.neverpaytoplay.com/, which is also the target of the suit.

Unfortunately, Ohio does not have an Anti-SLAPP law in place…yet.  So, we must fight on Gorilla’s turf, for now.  Currently, we are filing a motion to dismiss for lack of jurisdiction (via an Ohio attorney, the wonderful Suzanne Blum of Thacker Martinsek), and hope the suit ends there.   More to come.

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