Geekview IP week in Review — WTF Edition

Posted by | October 16, 2011 | Disputes, Geekview IP recap, General | 2 Comments

I always suspected engaging in S&M might expose the participants to litigation.

The accomplished photographer, artist and director, David LaChapelle, sued performing artist Rihanna for copyright infringement, trademark infringement, unfair competition and unjust enrichment back in February, 2011, alleging that her S&M video violated his intellectual property (IP) rights.  Rihanna filed a Motion to dismiss, which the court ordered granted in part and denied in part in July, sustaining LaChapelle’s claim for copyright infringement, while dismissing his claims for trade dress infringement, unfair competition and unjust enrichment, which the court found duplicative of and preempted by the copyright claim respectively.  Apparently, that was enough to convince Rihanna to kiss & make up, according to an article on Photo District News last week.  It’s one thing to copy someone’s images without permission, it’s another thing to pretend your movie’s cooler than it is . . .

Furious Michigan woman upset over Drive takes it head on into court.

Next time you don’t like a movie, sue.

That’s what Michigan resident, Sarah Deming, did after seeing the movie Drive.  According to the first amended complaint filed by a real live licensed Michigan attorney, the movie trailer and other promotion for Drive portrayed the movie as:

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a chase, race, or high speed action driving film, similar to the Fast and Furious, Fast Five or similar, series of movies.  Drive bore very little similarity to the style and character of the movie Defendants, through their marketing and advertising purported and represented DRIVE to be.

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Deming asserts that this violates the Michigan Consumer Protection Act because the “character” and “style” of the film was not as Defendant represented in its marketing materials.  Further, the complaint alleges that, despite said advertising and promotion by Defendants:

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DRIVE was an extremely graphically violent film, including a slow motion depiction of a young woman’s head being blown off.

DRIVE emphasized the religion of only the Jewish characters in the film, through the film’s action, dialogue, and symbols.

DRIVE portrayed only the Jewish characters, who were the antagonists in the film, as uniformly and unambiguously evil, and not worthy of the audience’s sympathy or empathy.

DRIVE portrayed the Jewish characters, individually or jointly using historic false Jew hating stereotypes, including but not limited to:
A. Jews are murderous.
B. Jews are dishonest.
C. Jews scheme and conspire with each other to take advantage of, and control gentiles for the Jewish schemer’s benefit.
D. Jews believe they are racially or otherwise superior to other groups as evidenced throughout the film, including Izzy/Nino one of two Jewish characters referring to “Chink food,” and Bernie Rose, the other Jewish character, referring to someone as a “monkey.”
E. Jews are physically grotesque, as evidenced by the way Izzy was portrayed, and the otherwise out of place comment by Benicio, the innocent child in DRIVE that: “The sharks are bad and the sharks look mean.”
F. Jews take advantage of non-Jews, as evidenced by the “slick” way Bernie acquires 70% of the racing business that Shannon conceived.
G. Jews corrupt the morals of Gentiles, as evidenced by the otherwise unnecessary female dressing room scene, evincing the false stereotype of Jewish control of the “flesh” industries.
H. Jews are a threat to the physical safety of non-Jewish children, as evidenced by Izzy directing a physical threat against the innocent child in the film.
I. Jews are “outsiders,” not fitting in with the rest of society.
J. Jews are obsessed with Chinese and Italian food.  Jews are money hungry.

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To top it off, Ms. Deming seeks certification as a class action lawsuit on behalf of everyone who thought the movie sucked (note, it has an 8.3/10 rating on IMDB, so apparently this won’t be a very big class).  It’s hard to tell if Ms. Deming is really ticked off cause the film didn’t have enough action or because she perceived the action as too anti-Semitic.  Either way, is this really grounds for a false advertising lawsuit?  And that’s not all to make you go WTF this week . . .

Bloomberg Businessweek Breaks Bust of Casey Anthony TM Application.


A Monday October 10, 2011 article on Bloomberg Businessweek reported that a trademark registration for CASEY ANTHONY was rejected by the USPTO because the applicant does not appear to have the consent of the person named in the mark.  Applicant, Grant Media, LLC of San Francisco, applied to register the mark CASEY ANTHONY for “entertainment in the nature of an on-going special variety, news, music or comedy show featuring namely broadcast over television, satellite, audio, and video media” on July 07, 2011, just two days after Ms. Anthony was acquitted of murdering her baby daughter, Caylee.  WTF, Grant Media?  Did you really think you’d get away with this?  You’re not the only one; the Belly Bandit apparently thought it could get away with using Jessica Alba’s likeness without her consent . . .

Jessica Alba rebuffs Belly Bandit.

Jessica Alba filed suit on Tuesday, October 11, 2011 against The Caden Companies, d/b/a Belly Bandit for infringing her right of publicity, as well as unfair competition, false designation of origin and unjust enrichment.  She seeks an accounting of defendant’s gross revenues, a constructive trustinjunctive relief and damages not less than $1,000,000 based on Belly Bandit’s unauthorized exploitation of her name, image, likeness and photograph to promote its pregnancy weight loss product.  I bet Belly Bandit’s wishing those ads had never been born.  While the SF Giants might not feel quite so strongly . . .

SF Giants wish Gogo Sports would go go away.


Yet another case that begs the question — WTF?!?  According to the complaint filed by Gogo against Major League Baseball & the SF Giants on September 27, 2011, reported by Bloomber here, Gogo seeks declaratory judgment of non-infringement based on its use and Supplemental registration of the SAN FRANCISCO CALIFORNIA logo shown above right.  The complaint is written as though trademark rights in the U.S. were registration based, rather than use-based.  The SF Giants baseball team took its time applying to register its logo (above left), which it claims to have used since December 31, 1993.  Once it finally got around to seeking protection for its mark this April, its application was denied due to Gogo Sports’ registration.  This happened despite the fact that the Giants have used their logo for 15 years longer than Gogo Sports because the PTO is on a first-to-file basis.  Unable to negotiate a resolution, Gogo sued the Giants betting that the court would rule that it owns the mark.  Only I think this is one gamble Gogo’s gonna wish it never made.  Baseball’s not the only activity in which one get can mud on their face . . .

Scott Brown is accused of lifting Elizabeth Dole.

Massachusetts Senator Scott Brown found himself passing the buck onto a summer intern whom he claimed was responsible for copying passages from Elizabeth Dole’s 2002 speech and using them in the biographical portion of Brown’s website, according to an article from the Boston Globe.  Apparently, Elizabeth Dole’s speech included the following passage:

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I am Mary and John Hanford’s daughter, raised to believe that there are no limits to individual achievement and no excuses to justify indifference,” was the message on Dole’s website.  “From an early age, I was taught that success is measured, not in material accumulations, but in service to others.  I was encouraged to join causes larger than myself, to pursue positive change through a sense of mission, and to stand up for what I believe.

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Senator Brown’s website also included that passage:

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I was raised to believe that there are no limits to individual achievement and no excuses to justify indifference.  From an early age, I was taught that success is measured not in material accumulations, but in service to others.  I was encouraged to join causes larger than myself, to pursue positive change through a sense of mission, and to stand up for what I believe.

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Everything about this is so wrong.  Plagiarism is wrong.  Plagiarizing a US Senator is ludicrous. Brushing the issue off and blaming an intern, well that’s just gross.

Don’t ever forget that in the U.S. anyone can sue anyone for anything.  Until Congress enacts fee-shifting statutes, Plaintiffs don’t risk much by filing baseless claims.  Meanwhile, if you’re in the public eye, don’t plagiarize.  Attribution takes only a few seconds and can prevent a lifetime of embarrassment.

About Lara

Lara Pearson is a trademark attorney with Exemplar, where she also serves as the firm's Sustainability Steward. Lara's legal practice focuses on trademark and copyright law, including: intellectual property audits; trademark search & clearance; trademark and copyright registration & maintenance; intellectual property transfers; transactional work; and dispute resolution, including litigation when necessary. Lara primarily represents other social enterprises -- those leveraging their businesses and brands as catalysts for positive social and environmental change. Such businesses engage in CSR (Corporate Social Responsibility) to have a positive "triple bottom line" of people, planet and profit. As Exemplar's Sustainability Steward, Lara works with others in her law firm to measure and reduce the firm's carbon emissions and encourage engagement in social responsibility initiatives, including pro bono legal work and volunteering. Lara is a proud member of the Social Venture Network. Brand Geek is a member of 1% for the Planet and a Certified B Corporation, whose Incline Village office is certified under the regional Keep the Sierra Green program. Exemplar Companies is the most innovative professional services firm in the New Economy. Our unique, diversified expertise spans the disciplines of corporate law, business advisory, and capital/investment banking to better meet the needs of our high-potential customers. We have assembled a comprehensive suite of service to meet the complex issues facing companies in today’s challenging business environment. Our unique, holistic approach ensures the growth and success – and greatly increases the competitive advantage - of our customers. The Exemplar team is comprised of knowledgeable, highly skilled experts in a wide range of industries and disciplines. They work closely with our customers to provide trusted advice, incomparable support, expert guidance and the ultimate competitive advantage as they accelerate their businesses and position themselves to transform industries.

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