Tim Marman's Loosely Coupled

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• A player's right of publicity in sports statistics

  MLB already tried to claim copyright over baseball statistics , an argument that doesn't hold much weight since facts are not subject to copyright. Glenn Mitchell has an interesting article about the opposite situation - players claiming ownership under the right to publicity. The right to publicity generally arises from common law or state statute and comes up where, as Glenn puts it, the likeness is used "to create the false impression that the individual has endorsed its products or services." In many ways, I consider this similar to the use of trademarks in metatags. The analysis is somewhat different because this claim arises under right of publicity and not federal trademark law, but ultimately both are used descriptively, and not as a designation of source. As the Court discusses, the power to exclude others from using names and facts that are otherwise in the public domain is just too absolute given the nature of the use. Posted Jan 02 2007, 10:20 AM by Tim with | with no comments Filed under: Intellectual Property, Sports, Trademark, Law

• TWiL is finally out, and it's excellent

  The first episode of TWiL (This Week in Law), Denise Howell 's new podcast on the TWiT network, is (finally) out . It is excellent, which should come as no surprise given how good her previous efforts with Bag and Baggage and Sound Policy were. This episode features special guest Hank Barry along with a "regular" panel of Cathy Kirkman , Ernie Svenson , John Palfrey . Topics include the YouTube's safe harbor under DMCA, its recent licensing agreements, and the effect those agreements will have on other its competition and copyright reform in general. The name is somewhat misleading considering it was recorded several weeks ago. There were some audio issues in episode #1 but Denise said they've worked those out for episode #2. Oh, and hopefully the flat-lining TWiT can find some life after a brief vacation. Posted Oct 24 2006, 09:06 AM by Tim with | with no comments Filed under: Intellectual Property, Copyright, Web 2.0, Trademark, Audio, Podcast

• The Role of Copyright in Fashion

  Mike questions why we should introduce new IP rights in an already competitive market , asserting that "a lack of intellectual property protection actually [benefits the fashion industry]". While big name designers saw cheap knockoffs hit the shelves quickly, that only helped to drive more innovation. The designers would keep on innovating, trying to outdo each other, while building up their own brand reputation -- which would justify some of the premium they charged for the "genuine article" (quality also plays a role in the price -- the knockoffs generally aren't nearly as well made). The greatest irony, as discussed in the WSJ article , is that restricting copies may actually harm sales. "If copying were illegal, the fashion cycle would occur very slowly, if at all", which also implies less sales. The article also discusses some of the challenges of dealing with copyright in fashion. In other fields, copyright law bars duplicates found to be "substantially similar" to originals. But... Posted Sep 18 2006, 06:13 PM by Tim with | with no comments Filed under: Intellectual Property, Copyright, Trademark

• More on the Web 2.0 Trademark

  Marty illustrates (quite literally) the problem with the Web 2.0 trademark. Marty argues, as I did before, that the mark is generic and thus unprotectable. He points out though that this was not just genericide, but "self-induced genericide". Before all of this happened, Alex realized the unifying theory of Web 2.0 is harnessing collective intelligence. This suggests to me that 1) the collective intelligence here is that Web 2.0 should not be protected, and 2) any brand / buzzword / etc which needs countless posts trying to figure out what it really means isn't really marketed and positioned too well. Tags: web 2.0 , web2.0 , web20 , Trademark , Law , Intellectual Property Posted Jun 16 2006, 10:53 AM by Tim with | with no comments Filed under: Technology, Intellectual Property, Software Development, AJAX, Trademark

• The Web 2.0 Trademark Debacle

  There has been a bit of controversy over O'Reilly's "Web 2.0" service mark cease-and-desist letter and their subsequent "we had to" response . I'd say Mike Arrington correctly predicted the lynching , though some are defending O'Reilly . ( Scoble is just upset he's no longer the King of Evil ). Fortunately, the issue has been resolved , but not before the PR damage was done. We're not claiming exclusive use of "Web 2.0" in all contexts. Our service mark applies only to "Web 2.0" when used in the *title* of "live events" such as conferences and tradeshows. Rob Hyndmann wrote exactly what I was thinking , especially the first and last points. First, there’s the effort (without any trace of irony, it appears) to restrict and monopolize the use of the term in connection with events held to educate and evangelize … a set of technologies that are about collaboration, sharing and open access to information. Next, there’s the threat against a non-profit, of all things, innocently trying to do nothing... Posted May 26 2006, 12:23 PM by Tim with | with 3 comment(s) Filed under: Technology, Intellectual Property, Rants, Web 2.0, Trademark

• Trademark Attribution for Dummies

  I was curious/shocked when I first read Jason's post last month that Wiley was demanding attribution for use of the FOR DUMMIES mark. Martin Schwimmer said it's not really a demand letter though . Wiley's letter is not a demand letter in that it doesn't allege an infringement of rights and doesn't demand cessation of activity. When pressed by Calcanis (CEO of Weblogs (now an AOL company)), Wiley acknowledged that one-time use in a title was not trademark use, and that Wiley was merely asking for attribution. However, the original letter resembles a demand letter in that it starts out with a recitation of legal rights, and asks for written assurance that Weblogs is complying with the request. On these facts, Weblogs does not have to provide attribution. If you write a letter asking someone to do something they do not have to do, then you are asking them for a favor. When asking for a favor, If you do not use magic words such as 'please', 'thank you' and 'we respectfully request,' then do... Posted Mar 14 2006, 06:17 AM by Tim with | with no comments Filed under: Intellectual Property, Web 2.0, Trademark

• Trade dress, literally

  Susan at Counterfeit Chic discusses a trade dress dispute between Hooters and Winghouse. According to the District Court, 347 F. Supp. 2d 1256 (M.D. Fla. 2004), the claim fails as a matter of law because the Hooters Girl in uniform is primarily functional. And we're not talking about serving food and beverages. The judge found that "the Hooters Girl's predominant function is to provide vicarious sexual recreation, to titillate, entice, and arouse male customers' fantasies. She is the very essence of Hooters' business." Must be the orange nylon. The Hon. Anne C. Conway further noted that while servers in both establishments wear tank tops and shorts, "Hooters cannot monopolize this generic theme any more than an upscale steak restaurant featuring tuxedo-clad servers could preclude competitors from using the same or similar uniform." Would this be design-packaging under Two Pesos ? I love Trademark Blog's title too: confusing similar breasts . Posted Mar 10 2006, 07:56 AM by Tim with | with no comments Filed under: Intellectual Property, Trademark