If you loved me...

You'd buy this for me. #nerdpresents #mewantsit

Trademark Law with a Side of '90s Nostalgia.

Did you hear? Kozmo.com is back. Sort of. A few months after DC tore down the last vestiges of the short-lived VC darling, the Kozmo website has been brought back to life. But despite a landing page asking "Remember us?" and the familiar orange and green colors, this isn't your older brother's Kozmo. No, the entity behind the new Kozmo is a California-based grocer that is trying to reanimate everyone's favorite same-day-delivery brand. But how far is too far? Putting aside the question of whether Kozmo retains residual goodwill (or whether such a thing even exists), should the law nonetheless frown upon a new owner trying to confuse the public that the same "us" is behind the new venture as the old? Assuming that the original team behind Kozmo has moved on and doesn't want to bring a Lanham Act claim, should those who knew and loved Kozmo nevertheless have a right not to be mislead about the relationship between the new and old ventures?

Vindication (Sort Of)

I've been arguing (privately, at least) that the Copyright Act preempts the hot news doctrine for a while now. (Making that argument during an interview for a position at the Copyright Office was perhaps not the best idea.) But it looks like yesterday the Second Circuit lent some support to that position. I would have liked to see the Second Circuit go further, but it seems pretty clear to me that media outfits that follow the news aggregation Best Practices set out in the CMLP white paper should have a pretty strong argument for preemption. More on the decision.

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Announcing: "Journalism’s Digital Transition: Unique Legal Challenges and Opportunities" @ Harvard Law School April 9, 2010

Announcing a one-day symposium and CLE program on Friday April 9, 2010 hosted by the Citizen Media Law Project and Cyberlaw Clinic at Harvard Law School’s Berkman Center to celebrate the launch of the Online Media Legal Network (OMLN). The Network supports promising ventures and innovative thinkers in online and digital media by providing access to legal help that would otherwise be unavailable.

Entitled “Journalism’s Digital Transition: Unique Legal Challenges and Opportunities,” the program will bring together panels of academics, legal practitioners, and journalists. Topics will include:

• Saving Journalim From Itself? Hot News, Copyright Fair Use and News Aggregation
• Building and Managing Online Communities – Anonymity, Defamation and Privacy, Oh My!
• The Future of Journalism: Law and Ethics in a Changing Media Ecosystem

For more information, please see the conference website.

Something for the Family Guy Fans Out There. PrawfsBlawg has this assessment of a recent court decision in a copyright infringement case brought by Arthur Metrano over a scene in the movie Stewie Griffin: The Untold Story.

All Google, All the Time. Alexander Macgillivray, Deputy General Counsel for Products and Intellectual Property at Google, returned to @berkmancenter today for an engaging discussion of the Google Book Settlement. And John Palfrey has an announcement about two upcoming events to discuss the settlement. Meanwhile, Google has gone where few have gone before by winning a libel case in the UK (although a website in Amsterdam wasn't that lucky). And finally, Ars Technica reports that Barnes & Noble has teamed up with Google to build a library of over 700,000 books for its new e-book marketplace. Interestingly, B&N will be offering electronic copies of public domain books, scanned as part of the Google Book Search service, for free.

I Couldn't Pass Up the Headline. The AmLaw Daily has this post today about the on-going legal battle between Tolkien's heirs and New Line Cinema regarding royalties from the Lord of the Rings trilogy. The headline? "Nerd Law Heaven."

IP Law 101 for the Sports Fan. AmLaw Daily has this article about a recently filed trademark/copyright infringement case involving baseball trading cards.

Around the Center. The latest from the Berkman Center: John Palfrey has a post titled "ONI Releases Green Dam Software Analysis." JZ has this take on the use of Twitter to disseminate news about the goings-on in Iran.

More on the Salinger Case. THR, Esq. has the latest.

Seems Like Bad Precedent. Where's the deterrence factor for prosecutorial misconduct if the judge can just shoehorn the evidence in later at the sentencing phase? The Blog of the Legal Times reports.

Big Day for Music Cases. The Insider reports that the Lemonhead's lead singer, Evan Dando, has sued GM over use of "It's a Shame About Ray" in a 2008 TV campaign. And just last week a federal judge had a bit of fun with Bon Jovi song titles. (I'm having to exercise all sorts of self restraint to avoid a YouTube linkfest...)

Does Austrailian Copyright Law Not Have a Statute of Limitations Provision? Certainly they should have figured out the supposed similarity earlier.
Check it out for yourself:

I Always Knew Cap'n Crunch Was Shady. ABA Journal is reporting that a judge has tossed out a deceptive advertising complaint against Cap'n Crunch cereal.

I'm Feeling Special. First we get a First Lady, now we get a Supreme Court Justice.

The Wind Done Gone 2.0? The Media Law Prof Blog reports on a recent case filed by J.D. Salinger to halt publication of a "sequel" to Catcher in the Rye. Remix culture? Mark Randazza offers his own thoughts. And the Wall Street Journal has more here.

More Grist for the Anti-tethered Appliance Mill? Apple once again provides ammunition for JZ's fears.

That's One Way to Find a Job... Read all about how one guy from Italy got hired by Amazon through Second Life.

Time to Add "Rap Artist" to the List... of alternate career paths for lawyers. The ABA Journal has the details.

Yawn. Did anyone expect the MPAA's position to be different?

Courts About to Reign In Privacy Services? The Legal Satyricon has this report on a recent decision out of California finding that a privacy service may be held contributorily liable under the ACPA for its customer's actions. Things could get interesting...

Somebody's Been Watching Pump Up the Volume Again. Wired has this report about the (claimed) scope of the FCC's inspection authority. The claims at the beginning seem over hyped, especially since Wired doesn't cite any case where the FCC based their right to enter on the presence of a cell phone or other household device that transmits a radio frequency.

It's Been a While... Since I've seen Lessig this loquacious.

Maybe I'm Just Facebook Illiterate... but how would one even accomplish this from a technological standpoint? Create a page called "You've Been Sued" and send a request for him to join? And what happens if he's set his privacy settings to only appear in searches by his friends?

WalMart + Apple = ? On the one hand, I could see this increasing Apple's market share. But would it be at the cost of the "cool factor," which Apple has spent millions of advertising dollars to create?

Danger Mouse Pushing the Envelope Again. EFF has this report on Danger Mouse's upcoming "release." And where have I been that I didn't know Danger Mouse helped form Gnarls Barkley?

Increasing Pressures on Patent Regime. Intellectual Property Watch has this report on efforts at the UN to balance intellectual property rights with human rights. This comes a few days after the ACLU filed suit challenging patents granted over certain breast cancer genes on First Amendment grounds.

The Redskins-Cowboys Rivalry Can Live On. How Appealing has the latest (last?) on the challenge to the Redskins' trademarks filed by some Native American groups.

Google Waiving the Red Flag. CNet reports that Google has revised its AdWords policy to begin allowing some trademarks to appear in some AdWords copy. This comes on the heels of recent trademark infringement cases filed against the search company, including a class action recently filed in Texas on behalf of trademark owners.

Maybe One Day I'll Be Able to Afford Solar Power. Between this product and Veranda Solar's expandable panels, affordable, city-friendly solar power seems to be closer to a reality.

The Revenge of Eldred? Court strikes down law restoring foreign copyrights.

Kabuki Theater in Washington. Wendy has a wrap-up of this week's DMCA hearings.

We're All Criminals Now? Wired is reporting on a recent case upholding an Ohio man's felony hacking conviction as a result of his use of a work computer in violation of his employer's Internet policy. While we can all agree that use of a work computer to upload porn deserves some sort of censure, do we really want to go down a path that makes violations of private Internet terms of use into criminal conduct? Given the draconian nature of many employers' terms of use (the terms of which employers and employees often appear to have a tactic agreement to ignore), you could be risking more than just your job by booking that plane ticket to Boise to see your parents using your work computer.

Is this Really Unique to Twitter? Shouldn't the headline read "Potential Confidentiality Perils of Employees with Big Mouths"?

Oops. Ars Technica has an interesting report on the recent leak of the archive of a mailing list used by the American Psychological Association and the Pentagon to disucuss the profession's role in torture interrogations.

More from the "Nothing on the Internet is Private" Files. Wired has a report on a recent case out of New Jersey that finds two individuals suing their former-employer for invasion of privacy based on the employer gaining access to a private MySpace group (resulting in the "former" part of "former-employer"). Interesting discussions around the CMLP offices about whether or not the element of coercion takes this out of the typical employment-at-will framework.

All Your Facebooks Are Belong to Us? CNet is reporting on a new tool to allow hackers to control large numbers of Facebook accounts using cookie data.

Is Anyone Actually Surprised by Scalia's Reaction? He's never struck me as a subscriber to the "what's good for the goose is good for the gander" philosophy. The Chronicle reports on a Fordham professor's recent Internet privacy experiment.

Feeling Old. JZ weighs in on Cato's debate celebrating the 10-year anniversary of Lessig's Code.

But Where Will I Go to Find Erotic Massages? Sam has a new post up at the CMLP blog about the recent move by the South Carolina AG to crack down on Craigslist.

Just What I (Don't) Need... An application that encourages shopping. At least it looks like it will save you money. Tech Crunch has the details.

More Headaches for Trademark Owners. Eric Goldman reports that Google will begin selling trademarks as keywords in 190 additional countries.

Like Squeezing Blood from a Stone? PoynterOnline points to a discussion about a new project spearheaded by Murdoch to come up with a workable model to charge for online content. What type of features would such a system need to have to be commercially successful?

Get Your Copyright On. The Economist is hosting a week-long debate about copyright law. HLS/Berkman's own Terry Fisher is participating. Via Michael Geist.

Today's Funny. From Non Sequitur.

Much Ado About a Dot. I couldn't possibly let this one go without a post. Reuters is reporting that uber-trendy Sprinkles Cupcakes (which bills itself as "The Original Cupcake Bakery") has sued the rapidly-expanding Famous Cupcakes for trademark infringement. Sprinkles alleges that Famous Cupcakes has infringed its federally registered trademark for a circle within a circle placed at the center of a cupcake. Without commenting on the merits of Sprinkle's claims (since I haven't seen the complaint), I will make the observation that the "modern dot" design appears to be quite the fad in graphic design right now, appearing on bedding, stationary, swim meet logos, and numerous other items I'm too lazy to look up. (I'm pretty sure that one of the current in-store displays at Caribou Coffee uses something similar to the "modern dot.") As for the cupcake battles, Famous Cupcakes gets extra points for shipping their cupcakes nationwide, although I must give props to Sprinkles for announcing plans to come to DC. (And if you want to know just how out-of-hand the cupcake craze has become, do a search of TEAS for marks registered and applied-for in connection with cupcakes and bakery services...) Now I really want a cupcake.

I Bet NutraSweet is Wishing it had Splenda's Lawyers. The WSJ Law Blog is reporting on a recent decision issued by the Eastern District of Pennsylvania in a trade dress infringement suit brought by the makers of Splenda against a generic artificial sweetener manufacturer. From the opinion:

[W]hile it is true that the packaging of other sweetener products often contain depictions of coffee, iced tea, baked goods, fruit, and/or cereal, these depictions do not diminish the inherent distinctiveness of the Splenda trade dress when we consider the trade dress as a whole. . . . [The fact that other sweetener products used a yellow, blue and white color scheme prior to the introduction of Splenda] does not detract from Splenda’s inherent distinctiveness.

Life Imitates Ad. Following up on this post, it seems like Coke Zero has gotten itself in a real trademark litigation. According to Law.com,

Last March, Baig's attorneys contacted Coke for the sixth time in a formal demand letter. On June 5, Coke received yet another letter from Baig's counsel stating that Baig was 'dead serious about filing suit' and promising to forward a copy of the complaint he intended to file if Coke did not meet Baig's demands by June 13. That complaint, according to the Coke pleading, never arrived.

I would say that that should be sufficient to support a DJ action.

</Radio Silence> I just had to share this one. According to Reuters, "Robert Burck -- for 10 years a fixture in Times Square, who strums a white guitar while dressed only in white cowboy boots and hat and skimpy white underwear -- filed the suit in February over video billboards depicting a blue M&M dressed in his signature outfit." (How did I miss this until now?) Now here's the interesting part: "Burck, who poses for photos with giggling tourists in return for dollars slipped into his boots, has trademarked his look and licensed his name and likeness to companies for endorsements and advertisements, including a Chevrolet commercial that appeared during a Super Bowl." 1) Yes, Burck has a registration for a design consisting of a man with a guitar in a cowboy hat and boots, but I'm not sure that constiutes "trademark[ing] his look." 2) The services in his registration for NAKED COWBOY seem really broad. Is singing in a video game really the same thing as "entertainment services, namely, providing an on-line computer game"? 3) Isn't NAKED COWBOY a bit misdescriptive? 4) Am I the only one less likely to buy a product endorsed by this guy?

From the IP is Everywhere Files. Phosita points to this patent application comprising a "method and instrument for proposing marriage to an individual." Would have been a lot of wasted effort if Ellie said no...

And finally, here we have a Bearded Iris called "Copyright."

Second Life Gets its Own IPL Committee. The IPL section of the American Bar Association has annouced the creation of a new committee "responsible for monitoring developments in and educating members regarding legal issues that affect computer gaming and virtual worlds." For information on the Special Commitee on Computer Gaming and Virtual Worlds, or to sign up, go here.

Interesting Philosophical Approach. CNN reports in "Author suspicious of similar character on TV." From the article:

"I said, 'Holy jeez, talk about Freudian typos,' " Hamill recalled. "Hey, maybe this will sell the novel: 'You've seen the knockoff, now try the book.' Who knows?"

Let's Hope Apple Had an Indemnity Clause. Salon.com is reporting that "Eminem sues Apple for copyright infringement." From the article: "In this case, Apple received permission from Universal, Eminem's label, to sell his music on iTunes. But Eight Mile Style, his publisher, says that it also has the right to approve such sales. And because Eight Mile Style never allowed Universal to transfer music-downloading rights to Apple, it says that Apple has no right to sell the rapper's music."