Banksy on branding. The elusive street artist is seemingly frustrated with his own commercial success. To him great street artists need to remain criminal to keep their art pure. Most appropriation art could violate commercial law but is not criminal, unless it involves a violation of Copyright law’s DMCA. The image above is not a copyright infringement, but is potentially trademark infringement and dilution of Coca Cola’s famous trademarks in the shape of the bottle and the coca-cola script.
If Banksy’s use of Coca Cola’s trademarks are a fair use there would not be an infringment. The test for trademark fair use is different from copyright fair use. In fact there are a few trademark fair use tests. (more…)
Banking on a dead celebrity’s right of publicity being public domain is an extremely dangerous advertising practice. Rights of publicity are a suite of legal rights that have developed from invasion of privacy and trademark law since the early 20th Century. There is a web of state and federal laws that can protect dead celebrities– even celebrities from states like New York that specifically do not recognize a post-mortem right of publicity. And the laws can protect rights of publicity for as much as 100 years after death.
As a young lawyer, a common task was determining which state laws apply to a dead celebrity so to determine whether his or her name or image could be used for free. The analysis is extremely detailed. Which law applies, New York (no protection) or California (broad protection)? Does the use violate the celeb’s trademark or constitute a false designation under federal law? An article in Slate today made some stunningly dangerous over-simplifications about how a dead celebrity’s persona is protected.
In my entertainment and sports law seminar, we spend a few classes examining the various ways of protecting a persona. A right of publicity protects the commercial value of a celebrity’s persona. A 1941 Texas case involving Davey O’Brien is my hands down favorite for explaining the basis for protecting a celebrity’s right of publicity. The Texas court gets the analysis wrong, and a dissent by Justice Holmes provides the foundation for modern ROP laws.
All American and Heisman award winner Texas Christian University quarterback Davey O’Brien (more…)
Following up on our November 9 post about the Baltimore-centric “HON” trademark controversy, I checked the U.S. Patent & Trademark Office database this morning and confirmed that, true to owner Denise Whiting’s promise, Cafe Hon, Inc. voluntarily surrendered its trademark registrations for HON in late November. Whiting cancelled her company’s registration of Baltimore’s much loved term of endearment for use as a trademarkwith respect to bumper stickers, napkins, note cards, gift cards, greeting cards, stationary, wrapping paper, gift bags, note bags, note paper, calendars, pens (in Class 16) as well as with respect to t-shirts, sweatshirts, tank tops, hats and caps, boas, short sleeved shirts, shorts, capri pants, underwear, ties, halter tops in Class 25 and retail gift shops (in Class 35). Whiting even went so far as to cancel her company’s registration of the term for use with respect to restaurant services (in Class 43) but maintained its federaltrademarkregistrations for CAFE HON® (and design) and for HONFEST®. When I first posted about the HONtroversy, I couldn’t recall another instance where a trademark registrant had voluntarily surrendered federal registrations in response to community protests. Enter Occupy Wall Street … (more…)
It is perhaps the first time in memory that chicken and kale were the subject of comparison – as reported in the Associated Press, Chick-fil-A has gone after a Vermont artist and his mark EAT MORE KALE, alleging that there is a likelihood of confusion between this mark and Chick-fil-A’s own mark EAT MORE CHIKEN. Bo Muller-Moore, the artist in question, produces various goods with the phrase EAT MORE KALE printed on them. Muller-Moore states that his mark began as a statement on t-shirts supporting local farmers – kale apparently grows quite well in Vermont. Sale of the shirts took off, so Muller-Moore expanded his “kale” product line to include sweatshirts, bumper stickers and the like.
This isn’t the first time that Muller-Moore and Chick-fil-A have crossed paths. A few years ago, the two engaged in a battle of legal letters that eventually burned itself out. Muller-Moore continued making his products under the assumption that the issue had gone away. (more…)
There was lots of excitement in Baltimore on Monday when Cafe Hon owner Denise Whiting held a news conference with TV reality show chef/provocateur Gordon Ramsay, in which she announced that she was relinquishing her trademark in the word “Hon”. The news conference was timed to coincide with the filming of an episode of Gordon Ramsay’s reality TV show Kitchen Nightmares, which should be something to see (speculation runs high that it will not be a promotional video for the Cafe Hon).
Actually, Cafe Hon, Inc. owns numerous trademark registrations: CAFE HON was registered in 1992 for restaurant services. HONFEST was registered in 2007 for community cultural festivals. Presumably those will not be affected by the announcement on Monday. Cafe Hon, Inc. also owns federal trademark registrations for the word HON… (more…)
A federal district court judge last week threw out a lawsuit brought by Mattel Bratz® rival MGA. The suit accused Mattel of anti-competitive conduct since August of 2010. Judge David O. Carter tossed MGA’s suit because it alleged the same facts underlying MGA’s claims to the Bratz® trademarks in defending an earlier case against Mattel. Last Spring a California jury ruled for MGA and held Mattel liable for $309 Million in damages…. (more…)