A proposed trademark can be refused and/or rejected by the trademark office is the proposed mark is deemed “scandalous or immoral” when analyzed against contemporary attitudes and norms. The trademark office recently reversed a refusal to register the trademark NUT SACK DOUBLE BROWN ALE for beer after determining that, contrary to the examiner’s assertion, the proposed mark was immoral or scandalous. Filers of the mark argued that the term “nut” simply referred to a flavor, while “sack” suggested a “sackful of flavor.” Cue laughter. Ultimately, the Trademark Trial and Appeals Board determined that the proposed mark was not so shocking or offensive as to be held scandalous with the trademark law.
Trademark- The Bare Facts About the "Naked License"
Trademark owners often want to capitalize from the brand recognition and goodwill they’ve worked long and hard to establish for their brands. Owners typically enter into license agreements with third parties which permits that party to use the owner’s mark on specific goods and services. Many owners are unaware that, once you negotiate and grant the license, a mark owner must pay attention to quality control to ensure that the third party is delivering the same high quality product or service the public expects from the owner’s brand and mark. Be advised that lack of quality control monitoring may result in what is known as a “naked license,” which may ultimately jeopardize the owner’s rights in its own mark. Owner must, unfortunately, also be careful not to exercise “too much” control, which may unintentionally create a “de facto franchise” between the parties.
Fashion- Hey That's My Art!
You fashionistas may have caught a glimpse of celebrity Gigi Hadid wearing a Moschino gown depicting a variation of a graffiti artist’s mural called “Vandal Eyes.” The art had appeared years earlier on a building in Detroit. At first, both Moschino and the artist were pleased with the worldwide attention that resulted from the use of the art on the gown. However, that changed when pop star Katie Perry wore the gown to a Metropolitan Museum of Art gala in New York. After Perry won the distinction of making onto numerous “worst dressed” lists, the artist filed suit in California court alleging that he had been wronged by Moschino’s insistence that Perry where the gown to the gala. In short, the artists claims Moschino deliberately and “obnoxiously” disobeyed the gala’s dress code for headlines, which allegedly damaged the artist’s reputation. The artist is seeking money damages and other relief.
Corporate- Board Members and Whistleblowers
As business leaders continue to attempt to comply with and interpret certain portions of the Sarbanes-Oxley Act of 2002 (SOX) and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), recent decisions shed light in the ever-changing landscape of corporate governance. Specifically, with respect to board members and whistleblowers, a California court, in Wadler v. Bio-Rad Labs, Inc., 2015 WL 6438670 (N.D. Cal. Oct. 23, 2015), held that corporate directors, including board members, could be liable for retaliation against whistleblowers under both SOX and Dodd-Frank. The court held that board members and executives could be held personally liable as “agents” of the company. There are some ambiguities and complexities that will require further resolution, but the court’s holding is important for all companies and corporations.
Copyright- Fair Use and the Public Good
In a recent decision, the 2nd Circuit upheld Google’s practice of “digitizing” books to make them available to internet users without permission from copyright holders. After analyzing the four factor “fair use” test, the court determined that Google’s use, which admittedly resulted in complete and unchanged copies of the original protected works, was important to advancing public knowledge. In this case, it’s important to keep in mind that Google’s resulting database does not allow users to view the entire book, but allowed users to search and view randomized pages for free.
Music- Understanding the Compulsory Mechanical License
Music copyright is a dense and often misunderstood area of law. So what exactly is the Compulsory Mechanical License? Under the Copyright Act singers and entertainers are allowed to make a copy or a recording of their favorite song without obtaining approval from the copyright owner under certain circumstances. For instance, once a publisher releases a song, for example, anyone can make a recording of that song as long as they pays the royalty rates set by law under the Copyright Act. Notably, this does not apply to “first use” of the song.
Immigration- Court Delays DAPA Program
While the upcoming elections may introduce a new era of comprehensive immigration reform, the courts will play an important role in the process. For example, the Fifth Circuit recently upheld a lower court’s decision to block some of the President’s recent reforms. The court’s ruling effectively prevents expansion of the President’s Deferred Action for Childhood arrivals (DACA) and may prevent establishment of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. While comprehensive immigration reform is on the horizon, it will certainly face legal hurdles and obstacles.
Fantasy Football and Right of Publicity
Athletes and celebrities have always been concerned with protecting their rights, including the right of publicity which protects them from the unauthorized use of their name and likeness for commercial (and other) gain. The latest chapter in this arena involves a class action lawsuit filed last week by several football players, including the Redskin’s Pierre Garcon, against the operator of fantasy football site “FanDuel.” The suit alleges that FanDuel is violating the players’ right of publicity through the site’s unauthorized use of the players’ name and likeness. Be advised that the unauthorized use of an athlete’s or celebrity’s name or likeness is very risky especially when use is for commercial purposes.
Immigration- If You Overstay- You Might Pay
Given the sensitive and important nature of immigration, immigrants regularly enter the United States on temporary work or tourist visas and simply stay in the country past the period of time allotted by the visa. Perhaps the hope is that once they enter the country their immigration status will be “fixed” or adjusted in some manner. While each case is fact-specific, as a general matter overstaying the period of time granted by the work or tourist visa simply limits an immigrant’s opportunity of favorable adjustment of their immigration status.
Confidentiality Agreements and the NDA
Early-stage businesses and start-ups are often too quick to "hit" potential investors with an NDA (i.e., a Non-Disclosure and Confidentiality agreement). While an NDA seeks to protect intellectual property, including ideas and concepts related to your proposed business or project, one must balance the "pros and cons" of sending an NDA too quickly, without strategically considering your audience or particular investor. For example, many investors, especially sophisticated investors, are unwilling to spend money to negotiate an NDA. Moreover, many investors refuse to sign an NDA for fear that a dispute (or litigation) may arise should the investor ultimately form a relationship with one company over another. Therefore, whether to send potential investors an NDA is a decision that should be analyzed carefully in light of the investor's background and level of sophistication.