ENGLISH LANGUAGE 1, SUBWAY 0

subwayNo, this is not another contribution to the on-going debate over whether Subway’s vaunted “footlong” sandwiches actually measure 12 full inches. I will leave that to the consumer affairs bloggers. Our concern is with Subway’s effort to monopolize the word “footlong” as a registered trademark for 12-inch, give or take, heros/submarines/wedges/hoagies/grinders. Last week the Trademark Trial and Appeal Board, in an EXTRA LARGE™ 61-page opinion, rejected Subway’s application, ruling that “footlong” was a widely and long-used generic term for for sandwiches of a certain length.

 

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AN ®-RATED SUCKER BORN EVERY MINUTE

ImageAgentProxySince 1979, Marsha Fox has sold chocolate, rooster-shaped lollipops — especially popular among fans of the University of South Carolina and Jacksonville State Gamecocks — using the fully intended double entendre COCK SUCKER.  In 2001 she applied to the United States Patent and Trademark Office to register the design shown here as a trademark.   Yesterday the United States Court of Appeals for the Federal Circuit issued a ruling affirming the PTO’s decision to deny registration under 15 U.S.C. § 1052, which prohibits registration of marks that contain “immoral, deceptive, or scandalous matter.”  When the solemnity and majesty of the law meets the ribaldry of the vernacular, unintended hilarity is bound to ensue.  Much more about this seminal case after the jump.

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BOOK REPORT: “THE KNOCKOFF ECONOMY”

The over-arching economic problem that dogs all of American patent and copyright law is one of demarcation—when is the marginal utility of  an incentive provided to one innovator “to promote progress in science and the useful arts” outweighed by the burden it places on the creativity and economic freedom of everyone else and is therefore counterproductive?  In The Knockoff Economy: How Imitation Sparks Innovation (Oxford Univ. Press), Law Professors Kal Raustiala of UCLA and Christopher Sprigman of the University of Virginia attack this problem from a novel angle, examining  fields of creative endeavor that seemingly flourish in the absence of patent or copyright protection and in the face of rampant and easy copying—fields such as couture fashion, haute cuisine, stand-up comedy, high finance, and professional (and big-time college) football.  Their approach, more anecdotal and even dishy than empirically rigorous, results in a study that is timely, enjoyable, original, and informative, though it falls short of forming a rock-solid foundation for the broad generalizations about IP law and its application to other fields that the authors seek to draw.

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COOKIES & MILF

Vermont’s finest ice cream purveyors, Ben & Jerry, scored a quick, preliminary legal victory this past week against porn producer Caballero Video.  A few excerpts from the Temporary Restraining Order issued by the U.S. District Court in Manhattan will convey the flavor of the dispute:

 Defendants are hereby restrained from using the designations BEN & CHERRY’S, HAIRY GARCIA, EVERYTHING BUT THE BUTT, LATE NIGHT SNATCH, AMERICONE CREAM, NEW YORK SUPER FAT & CHUNKY, BOSTON CREAM THIGH, COCONUT 7 LAY-HER BAR, CHOCOLATE FUDGE BABES, PEANUT BUTTER D-CUPS, BANANA CLIT or any  substantially similar designations . . .    

and . . . engaging in any conduct that tends falsely to represent that, or is likely to confuse, mislead or deceive purchasers, Defendants’ customers and/or members of the public to believe that, the actions of Defendants, the products sold by Defendants, or Defendants themselves are connected with Plaintiffs, are sponsored, approved or licensed by Plaintiffs, or are in some way affiliated with Plaintiffs.

Unfortunately, the Court has sealed all visual images, so it is not possible to see what Ben & Jerry’s alleges to infringe its logos.

It appears that this TRO was entered ex parte; that is to say, without the Defendants appearing to oppose it.  Such orders are permissible provided an opportunity to be heard is promptly provided after the fact, and the court has scheduled a Preliminary Injunction hearing for Wednesday, September 12th.  Here’s hoping that Caballero will appear with capable counsel and defend vigorously.  The small body of law on what constitutes permissible parody, and is therefore protected by the First Amendment, can always use more elucidation.  Does this fall on the permissible parody side of the line, like the San Diego Chicken’s use of a Barney look-alike in some of his routines, or on the infringing side, like “a poetic account of the O.J. Simpson double murder trial entitled The Cat NOT in the Hat! A Parody by Dr. Juice”?

UPDATE (9/13):  We’ll never know.  Caballero threw in the towel and agreed to a permanent injunction yesterday.

HERSHEY BAR GETS ITS ®

As a kid I was partial to the simple bas-relief design of the classic Nestlé’ bar.  Once the raised border that surrounded the entire confection had been breached, the size of the next bite was limited only by the size of my mouth.  I preferred to eat one letter at a time, beginning with the final ‘e’ and its puzzling acute accent.  The Hershey bar, in contrast, with its division into individual, separable pieces, seemed overly fussy, as if it had been designed by my mother to discourage gorging, to enforce her edict: “Don’t be a pig, you’ll make yourself sick.  And share some with your brothers.”
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COURT: ICE GUM NOT REALLY THAT COOL

After chewing on a dispute between Wrigley and Cadbury over  patents covering their competing “ice” gum products for more than eight years, the courts have declared a draw.


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