Geekview: Cheeky Coverage of Recent(ish) Intellectual Property News

Google can juggle.

The more powerful you are, the more you’re gonna get toyed with. That’s true for people and companies. Big companies like Google spend an awful lot of time in court rooms juggling dozens of court cases at a time, many involving intellectual property. Though it may seem counter-intuitive (or maybe just plain foolish), big companies get sued. A lot. Google has been involved in 347 federal court cases: 219 as defendant compared to only 19 as plaintiff (and the other 109 as other types of parties). Google’s been involved in 174 patent cases, 26 copyright cases and 29 trademark cases.  At the start of this month, rulings in two Google copyright cases dominated the headlines. On the west coast Google was victorious against Oracle in a Java joust, winning a ruling that Google’s inclusion of Java API  package names, organization and functionality in its Android operating system did not infringe Oracle’s Java copyright. That same day on the east coast, a group — er, guild — of authors schooled Google in a copyright infringement case, defeating Google’s motion to dismiss and receiving court approval for The Author’s Guild to proceed with its class action lawsuit. Google’s not the only company with court room blemishes . . .

Plantscription prescription for litigation.

Oh how Estee Lauder (EL) must wish it really could turn back time and un-run this ad, which has got to be causing EL’s ad execs plenty of wrinkles. According to the class action false advertising lawsuit filed in early June, EL launched an “anti-aging serum” sub-brand called Plantscription under its Origins brand. The suit is based in part on classic false advertising — the failure of the product to perform as advertised — and in part on the falsity of the ad’s imagery. According to an article by the New York Post, the ad is the face of 36 year old model Caroline Forsling who never used the advertised product aimed at women aged 45-60 and did not give EL permission to use her image to promote it. Forsling sued EL for violation of her right of privacy and right of publicity as well as for unjust enrichment and false advertising seeking damages “no less than $2 million,” which it asks the court to triple.

I imagine there were other interesting IP happenings in June 2012, but you won’t read about them here cause I was caught up in a career path change. As a wise law school professor once told me, “if you get behind, don’t bother trying to catch up; just skip that topic and move on, cause you can always borrow a classmates notes at the end of the semester.” Sadly, none of my colleagues notes the news quite like I do, so we’ll just have to accept that we missed most of June 2012 and move on . . . to July . . .

Olympic Ravelry!

Surely you’re familiar with an Olympic rivalry or two, such as that between breaststroke swimmers Brendan Hansen and Kosuke Kitajima (although really, the field of competition is much deeper than that, as what man doesn’t want to be the breaststroke champion of the world?). But have you heard about the one between the US Olympic Committee (USOC) and the on-line knitting community, Ravelry? As an article in the Washington Post explained in early July, the USOC came out looking like a bunch of nitwits for sending a C&D to Ravelry accusing it of trademark infringement and demanding that it change the name of its RAVELYMPICS Olympic-themed knitting challenge. This sparked backlash on knitting blogs like Knit Purl Gurl, The Bitchy Knitter & Crochet Liberation Front, and in the Twitterverse, where the USOC watched their nastiness unravel in a shitstorm of angry Tweets. Ultimately, the USOC apologized. Twice. Seems to me that the USOC might be better off tongue-tied, or at least it should take more time to think before it fires off C&Ds. That’s not the only sports IP madness going on this summer . . .

Stark Raven mad!

Seventeen years have passed since Frederick Bouchat penned the logo on the left and fifteen years have passed since he first sued the Baltimore Ravens for copyright infringement. Yet Bouchat continues to run drills through the court system, hoping for a Hail Mary. Bouchat first sued the Baltimore Ravens way back in 1995. In 2003, the 4th Circuit upheld the district court’s ruling that the Raven’s infringed Bouchat’s logo, but Bouchat was ineligible for damages because there was no causal link between the Raven’s use of the infringing logo and their revenues. The case made its way back to the 4th Circuit in 2010, when the appeals court reversed the district court’s finding that the fair doctrine protected the team’s depiction of the infringing logo in connection with its sale of highlight films. All in all, Bouchat has filed 8 copyright infringement suits to enforce his rights in his logo design, including a new one against the NFL in May, 2012 (amended complaint here), which the NFL Answered on July 16, 2012. Bouchat also sued the Ravens (again!) in June of this year, as the Baltimore Sun highlighted in an article on July 2, 2012. Were football about endurance, then I’d say Bouchat missed his calling, while the estate of a man who “called” horse races for a living finds itself being sued . . .  by Disney!

Disney races into court.

Disney isn’t horsing around when it comes to Charles “Chic” Anderson’s publicity and other IP rights. In fact, Disney is so sure that it’s 2010 film Secretariat did not violate the deceased announcer’s copyright and right of publicity, that it filed a lawsuit against Anderson’s Estate and several of his family members seeking a declaratory judgment of non-infringement. In other words, rather than waiting to be sued by Anderson’s relatives, Disney asked the court to rule that it did not violate any of Anderson’s rights. Disney claims Anderson has no right of publicity claim as a result of the film because his persona was not used therein and any publicity rights Anderson may have had expired with him in 1979. Disney also claims it did not violate Anderson’s copyright because Anderson’s employer, CBS, is the copyright owner from which Disney licensed the rights to use the famous racing clips in its film. It will be interesting to see whether both parties have the stamina to see this case through to the finish line. My money is on a settlement, which is a sure bet to be less expensive and more predictable for both parties. Litigation, on the other hand, can be as serious as a heart attack and it’s certainly caused several . . .

Latkes not likely to confuse.

Just cause two restaurants offer Heart Attacks, that doesn’t mean consumers will be confused about the origin of their artery clogging edibles. Or so said the Southern District Court of New York in its July 5, 2012 Order in the declaratory judgment action brought by New York’s 2nd Ave Deli (2AD) against the Las Vegas restaurant, Heart Attack Grill (HAG). 2AD asked the court to rule that its INSTANT HEART ATTACK sandwich (Corned Beef, Pastrami, Turkey or Salami between two large potato pancakes) did not infringe on HAG’s HEART ATTACK GRILL mark. HAG owns an incontestable federal registration for HEART ATTACK GRILL for restaurants as well as several federal trademark registrations for BYPASS BURGERS and other medical themed marks, which it uses at its medically themed unhealthy food restaurant. A restaurant at which patrons who weigh in (literally) at over 350 pounds eat free and where at least one patron actually suffered a heart attack and another was hospitalized after over-indulging, both just this year. Yeah, I can see why that would be a selling point . . .

It pays to do your homework! IP cases hinge on the facts. There are PR and other risks in treating similar types of challenges the same way without consideration of the unique facts presented by the challenge. It’s important to work with your IP attorney to create a protection & enforcement strategy that’s right for you.