Elizabeth Scripturient (the delinquent, ecumenical (hermionesviolin) wrote,
Elizabeth Scripturient (the delinquent, ecumenical

Intellectual Property (Class #6) July 8 [notes]

picking up where we left off last class: geographic significance

one of the most awkward phrases in the whole law (prof says): "primarily geographically deceptively misdescriptive"
suggests a geographic association where there really is none

In Europe, food regulatory issue (e.g. Champagne) -- in U.S. we tend to think of those as trademark issues.

"Murphy Beds" is the case in the textbook, but that's somewhat dated
recent case that did succeed was "Thermos" -- decreed to be generic term for "vacuum bottles," though Thermos company is the only company that can say "Thermos brand thermos," everyone else has to use small "t"

"realtor" -- Board of Realtors sought to enjoin him
he claimed it was a generic term for anyone who sells real estate
Board of Realtors countered that they have a "diligent campaign to inform people that only certain people..."
prof: "it's a private organization but they have standards"

"I see these ads a lot in lawyer magazines.  I don't know if they go much beyond that." (Eliz mental reaction: I saw these ads all the time in Writer's Digest or whatever it was called -- hence why I twinge when people use "Xerox" and "Kleenex" as generics... since it's not like "copy"/"copier" or "tissue" are difficult words.)

Trademark delivers a message about the source of the product or goods
when the connection is lost, it loses that protection
The law has always recognized the "fair use" of a trademark
so long as an outsider is not trying to appropriate the trademark

you can use a word that has been trademarked in your own advertising in an ordinary sense (e.g. saying "fruity" as adj. when someone has trademarked "Fruity")

comparative advertising
be careful not to misrepresent (federal trade commission, state consumer protection agency)

Terri Welles
1981 Playboy Playmate of the Year
prof: "[she was] featured... 'exposed' one might say"
(quoting someone from a different context) "if the SuperBowl is the ultimate football game, why is there one next year?"
Playboy sues her for her use of the phrase "Playmate of the Year 1981"

court says allowed, provided:
1. has to be accurate
2. must be no real other way to express the fact
3. you can't use any more of the registered trademark than is necessary to express that concept

Alan Jardine (former member of the Beach Boys) called his new group "Beach Boys Family and Friends"
lost the case
name implies an ongoing relationship, which he doesn't have

keyword advertising
using our registered trademark, using it without our permission, selling it to a competitor
Google says "we're not using it in commerce"
the law says: "Whoever uses another's mark in commerce in such a way to create a risk of confusion is infringing."

people aren't going to be confused -- "that's so 1990s" [we're internet-savvy these days]
Ford loses [case where Jeep had bought keyword advertising so searching "Ford" gets you an ad for Jeep, among other results]

2 months ago, U.S. Court of Appeals in NY came to the opposite conclusion
advertising... you were using it in commerce
re: #2 (is it confusingly similar?) sent it back to the trial courts

huge amount of money... latest figures... revenue of Google ($16B, 2007) nearly 2/3 came from keyword advertising

all it [court] can do is construe the 1946 law
only Congress can change the law
prof: "I am less than completely optimistic [...] long and distinguished record of doing absolutely nothing when you have two major economic interests on either side of the question"

In a case like this, "They will sue Jeep, too, just for good measure."

Anti-Cybersquatting Act of 1999
[I thought of the Slate article I'd read recently -- www.thosenewdomainnames.areforsuckers]
Harvard was first case brought under this act, and won

straight trademark infringement:
notharvard.com -- distance education -- "we were in that business, too; we've been there for 300 years"
NotHarvard burned through its venture capital and went out of business

UDRP (uniform dispute resolution process)
instead of going to court, go to ICANN, arbitrator, resolved in 6 months, just pay an arbitrator's fee
"last I checked, Harvard had won every dispute in front of ICANN"
"it's cheap, it's fair -- and if you win you're happy; if you lose you think it's a terrible system"
now when you buy a URL in the fine print it says you agree to do it in front of ICANN
"it is permanent; it cannot be appealed to a court"
Tags: harvard: ext.: course: intellectual prop

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