Downhill Ride for Right of Publicity
May 31, 2006
The right of publicity ' the right of individuals to protect the commercial uses of their names and images ' is now a familiar concept. Given the recently reported $50 million purchase of rights to Muhammad Ali's name or the $100 million acquisition of Elvis Presley's publicity rights (hardly for a song), there can be no question that the right not only can have great value, but has achieved a certain settled status. And yet, the metes and bounds of the right remain elusive at best.
Settlement Agreements Involving Trademark Licenses: Important Terms to Be Included
May 31, 2006
In a recent decision involving a trademark settlement agreement, the U.S. Court of Appeals for the Fifth Circuit in <i>Liberto v. D.F. Stauffer Biscuit Co., Inc.</i>, found that a final judgment in a trademark infringement action did not preclude a further action involving claims of trademark infringement, breach of contract, and the defense of incontestability. 441 F.3d 318 (5th Cir. 2006). The case highlights the significance of including certain important terms in a settlement agreement involving a trademark license.
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May 26, 2006
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IP News
April 28, 2006
Recent rulings of importance to you and your practice.
Supreme Court to Decide Standing Issue
April 28, 2006
On Feb. 21, 2006, the Supreme Court granted certiorari to review <i>MedImmune, Inc. v. Genentech</i>, 427 F.3d 958 (Fed. Cir. 2005). The question presented is: 'Does Article III's grant of jurisdiction of 'all Cases ... arising under ... the Laws of the United States,' implemented in the 'actual controversy' requirement of the Declaratory Judgment Act, 28 U.S.C. '2201(a), require a patent licensee to refuse to pay royalties and commit material breach of the license agreement before suing to declare the patent invalid, unenforceable, or not infringed?' Whether the Court affirms or reverses the Federal Circuit, which answered in the affirmative, undoubtedly will affect the balance of power between patentees and their licensees and, perhaps, the willingness of licensors to grant licenses.
Is 'No Use' Always a 'Fair Use'?
April 28, 2006
In order to avoid liability for trademark infringement relating to the sale of keywords corresponding to trademarks, search engines, including Google, are attacking the concept that trademark owners should be able to protect the 'commercial magnetism' of their marks. Recently, in <i>Rescue.com v. Google, Inc.</i>, No. 5:04-CV-1056 (N.D.N.Y.), Google argued that the trademark laws 'are not meant to protect consumer good will [sic] created through extensive, skillful, and costly advertising.' Google's Reply Brief at 4 n.4 (2005) (citing <i>Smith v. Chanel, Inc.</i>, 402 F.2d 562, 566 (9th Cir. 1968)).
'Da Vinci Code' Case Stretched Legal Thinking On What Can Be Protected By Copyright
April 28, 2006
The common wisdom before, and during, the London copyright infringement trial over Dan Brown's book 'The Da Vinci Code' (DVC) was that the plaintiffs Michael Baigent and Richard Leigh would lose because an idea cannot be copyrighted. And the plaintiffs did lose. <i>Baigent v. Random House Group</i>. Some even suggested the plaintiffs sued only to bolster the sale of their own book, 'Holy Blood, Holy Grail', which is what happened ' though High Court Justice Peter Smith ordered the plaintiffs to pay $1.75 million in legal costs. The number of additional copies the authors will have to sell to earn enough royalties to pay that amount is high. Still, the case was one of those signal attempts to reconsider exactly what authorship is for copyright law purposes.
Trademark Protection for Characters After Copyright
March 30, 2006
As the copyright terms of many iconic, character-based works of the 20th century near closure, owners of these works face the question as to what extent they can enjoy exclusive rights in the characters they have created. Included is Disney's Mickey Mouse, first introduced in the short animated film 'Steamboat Willie' in 1928. Enterprising third parties raise the related question: Does the expiration of copyright mean these works and characters can be freely exploited? Once a copyright term lapses, an original work is said to pass into the public domain, available for all to freely copy and exploit. However, continued trademark protection for a character may delay or complicate the character's passage into the public domain. A careful analysis of fundamental principles of trademark and copyright law and relevant case law illuminate certain legal guideposts for navigating through the complexities of character protection.
IP News
March 30, 2006
Highlights of the latest intellectual property news from around the country.
