Wednesday, June 29, 2011

Who Knew?

Who knew that law practice group names have been trademark registered? I wonder how many law firms have an employment law group that is marketed as their "Employment Law Group"? I'm guessing a lot. It is interesting to note, however, that the PTO has issued a trademark registration for "The Employment Law Group" in Class 42 for legal services (Reg. No. 3436135). There is also a pending application for "Intellectual Property Law" (Ser. No. 85205240) for legal services, a registration for the "Litigation Media Group" (Reg. No. 3051750) for legal services, for "Intellectual Property" (stylized design) (Reg. No. 1690628) for legal services, and "The Construction Law Group" (Reg. No. 2129634) for legal services. These are but a few of numerous trademark filings related to very common legal service offerings of the type provided by, I imagine, thousands of lawyers and law firms. Who knew that these common legal service descriptions could be registered?

Who knew that there is no copyright protection for the idea of a crime fighting hair dresser? We should all be cautiously optimistic that the issue of copyright infringement relating to crime fighting hair stylists has been, apparently, resolved. In Cabell v. Sony Pictures Entertainment, the Second Circuit affirmed in last week's unpublished decision that the plaintiff's idea of a crimefightinghairdresser brandishing a hair dryer in stock fighting poses is not protectable in copyright. Here is the plaintiff's artwork:

Here is Sony's movie art for You Don't Mess With The Zohan:

Who knew? Notwithstanding the warnings from Lenz v. Universal Music Group, new cases continue to be filed over liability for claimed wrongful takedown notices. Under the Digital Millennium Copyright Act, a copyright claimant can employ the takedown notice procedure in order to remove claimed infringing postings from the Internet. But wrongful takedown notices create the potential for liability for a wrongful takedown. Lenz posted a 29 second video on the Internet of her infant daughter dancing in the kitchen to the music of Prince's "Let's Go Crazy." Universal sent a takedown notice to the ISP claiming that the video infringed the copyright interest in the song and performance. Lenz sued for the wrongful takedown, arguing that the takedown was wrongful because her posting was protected by fair use of the Prince song. The court agreed. The court in Lenz made clear that liability attaches when the claimant who sends the takedown notice does not have a viable copyright claim in light of the poster's fair use. Now comes word that a similar DMCA case is pending in federal court in Ohio. In Smith v. Summit Entertainment, N.D. Ohio, 3:11cv348, Summit sent a takedown notice claiming to own a copyright interest in Smith's musical work posted on line. The music was taken down. Subsequently, Summit acknowledged that it did not have a copyright interest in Smith's music. Smith sued under several theories, including wrongful takedown under the DMCA, plus defamation and other theories. The court allowed several of Smith's claims to proceed forward in ruling on Summit's motion to dismiss, stating in part: "While defendant post hoc and promptly acknowledged that it has no copyright interest in plaintiff's song, that does not matter. Plaintiff alleges that defendant made an unquestionably false assertion in take down notices and the song was taken down." Lawsuits for wrongful takedowns are tracking up out there! Who knew?

July 4th
The Fourth of July is around the corner. Be careful out there!

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