Surfing the Curve

The same week the Apple case was settled, it was also in the news that country star Keith Urban was suing Keith Urban, the artist. Apparently, the painter has this enticement posted on his website..

“You have reached the site of Keith Urban. To those who don’t know, oil painting is one of my hobbies.” It then directs viewers to a gallery of paintings and offers a limited edition of prints for sale.”

When the musician found out, he was incensed. He has filed a suit with numerous charges including federal trademark infringement and dilution. I think he has a shot at prevailing on both claims.

Although names are typically not able to have a trademark initially, after developing a secondary meaning, they are protectable. For celebrities, publicity rights also plays a role. Considering that the article stated that the musician had a federally registered trademark, the next issue would be “Is there a liklihood of confusion?”

I’d say absolutely. Just looking at the snarky language, “It’s one of my hobbies.” Any average consumer would be confused and think that the singer was selling artwork now.”

I think he would have a good case for dillution too. I know the test for dillution of a trademark is tarnishing or blurring. Well, If the “artist” was drawing moronic scenes of drug parties (The singer is currently in rehab), this could be tarnishing. However, since I dont know that, I definitely think that blurring could occur and consumers wouldnt be able to tell the difference between the art and the music and the strength of “Keith Urban”, as a musician could be blurred by “Keith Urban”, the painter (and hobbiest). It will be interesting to see how it turns out.

See http://music.msn.com/music/article.aspx?news=250400
for more info.

Kelley Waterfall

I had read about this in the paper last week and thought it was interesting. I know we are ready to tackle trademark issues in class this week. Although this contraversy took place in England, I still find it interesting in comparing how an American court might look at this issue.

In 1991, Apple and Apple Records (Beatle’s record company) entered into an agreement that Apple could use their logo for the computer business and Apple Records could use their logo in the music industry. This seemed to work out fine until Itunes was born and Apple Records thought that Apple was turning itself into a mini record company. In the initial decision, the court ruled on the side of Apple saying digital media was different than physical media and could not be liable.

Of course, Apple records appealed. Apparently, before reaching the appeals court, on February 5th, they settled and now Apple owns all trademarks and would license some of them back to Apple Recording.

It’s interesting that this became such a big issue in Great Britain. I really do not think it would be over here. I would venture that both Apple for a music company and a computer company would be arbitrary or fanciful and would obtain high trademark protection.

However, when a court looks at trademark infringement, they consider whether there is a high liklihood of confusion. Several factors are considered. However, based on my gut reaction, I really dont see how a record label and a computer company who offers music from different record labels for digital download would be confusing to the average consumer.

For more info, you can look at this article about some of the specifics.

http://biz.yahoo.com/rb/070205/apple_beatles.html

Kelley Waterfall

Today, I read this article from the New Yorker. http://www.newyorker.com/fact/content/articles/070205fa_fact_toobin?page=1. It basically states that for several years Google has been teaming up with universities to scan books into their system. At this point, they are ready to make this “copying” widespread. As a result, seveal legal implications stem from this. Google is going to be offering a service called “Google Books” where they will be offering whole books online, some in the public domain and many copywrite protected. Many publishers are ready to sue for infringement, but Google maintains that 1. Copying books into a database is a compilation, not unlike a web search. 2. The use is transformative, because people will be looking for a term in a book, not reading the whole book. I think that Google is going to have some severe problems with this. Although Google maintains that this is like an “online card catalogue”, how can you compare a card catalogue to full copied books? If you are planning to publish a book within the 70+ life catagory, you have to obtain rights to re-publish it. Google is no different. This is not a transformative usage either. It might be a literal “pain in the neck” to read a full book online, but again it is the “full book” and therefore not unlike reading a novel on my couch. This looks like copyright infringement and Google needs to do something if it really wants to use the books as a web search or card catalogue. Perhaps, limiting the amount of the book copied would suffice. But changes are going to be needed for them to prevail in an infringement claim.   

My husband and I are planning on investing in Apple once our long awaited tax refund arrives. We thought that Apple is a super choice because of the new iphone coming out in the summer. However, they’ve mysteriously been in a slump. I found this article yesterday about why. Although this is not an issue we discussed in class and is being decided in Norway, it will be interesting to see the reprocussions in the US id the ipod can no longer just download songs from iTunes. This should be a boon for other services such as Walmart and AllMp3.com. Check out the article

http://www.sciam.com/article.cfm?chanID=sa001&articleID=DC5631BB775757E5AE1E430034AD1A21

I grew up in the 1980s and this is my favorite “parody” piece from “You Tube”. These creators tossed in just about every cliche they could for “special edition.” Although they are merciless with their infringement, there is no possible way that anyone could not find this a parody. Under the fair use doctrine, The purpose is to make fun of these “cheezy” eighties icons for a completely different audience (mainly geeky adults like myself not little pony and transformer obsessed tots). There is no way the My little pony market or transformer is affected.