Daily Archives: January 30, 2009

Virgin Airlines sues advertising blog for parody ad

This from the blogs of AdWeek magazine:

In a baffling act of litigious bullying, Virgin America has filed a lawsuit against the popular advertising blog Adrants for posting and commenting on a parody ad. The spoof ad showed a picture of that US Airways jet floating in the Hudson River, alongside the message “Fly Virgin America.” Adrants initially noted that the ad’s “origins are suspect,” and later updated the post to make it clear that the ad was a parody from someone outside Virgin. Then Adrants pulled the item entirely. But that apparently wasn’t enough for Virgin America, which on Monday filed a “complaint for trademark infringement, false designation of origin and false and deceptive advertising, trademark dilution, false and misleading statements, dilution in violation of California law, and defamation.”

What? You don't think I would actually upload the real image, do you?

What? You don't think I would actually upload the real image, do you?

Wow.  What a mistake. First, suing a fairly well established industry blog doesn’t help with the goodwill in your brand.  Second, now this ad (which you can see at the original blog post) is going to be seen by thousands more pople–not just the people who read the ad blog, but people like me (interested in the trademark law implications) and the millions of net critiques who get ahold of these stories and stretch them for all they’re worth (okay, maybe I fall into this category as well). Third, Virgin is wasting lots of money, and, unlike a “business-to-business” trademark dispute over the use of potentially competing marks, Virgin is not getting much in return (the post was taken down, there probably is no quantifiable damage, and attorneys’ fees are highly unlikely).

Don’t get me wrong; the mock ad was irresponsible (if a bit funny). And the original blog was irresponsible in even suggesting that it was anything but a joke.  And Virgin was probably right to contact the blog and say, “Hey, this is a satire, but it’s not appropriate that Virgin be the brunt of this joke.  We honor the achievement of the US Air crew and employees in the handling of this incident, and out of respect for the victims of the tragedy, we request that you remove this phony ad naming us.”  But by actually filing suit (and apparently maintaining it even after the takedown), the company becomes another faceless corporation that attempts to stifle social commentary and expression.

EDIT: The Citizens Media Law Project has comprehensive coverage of the case, including case filings and status.

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Filed under Law, Trademarks

Up against bars, news stations, local merchants sure, but God? No.

There have been numerous posts around the blogosphere about the NFL’s annual witch hunt for IP infringers (LIKELIHOOD OF CONFUSION’s Ron Coleman has a particularly good ones) who either (a) use the words “Super Bowl” in connection with a good, service or promotion, or (b) attempt to display the Super Bowl game itself on a television larger than 55 inches, or charge for admission to a “Super Bowl” viewing.

The Big Game? (I swear I havent copied this logo, and I disclaim any perceived affiliation with the NFL!)

"The Big Game"? (I swear I haven't copied this logo, and I disclaim any perceived affiliation with the NFL!)

Well, the NFL may be able to sue bars for putting the game on too big of a screen, or threaten injunctions against retailers who want to say something like “your Super Bowl party snack headquarters”, but it gets stopped in its tracks when it goes after God.  From this report from OneNewsNow (a division of the “American Family News Network”):

Churches can show the Super Bowl on big-screen TVs without fear of violating copyright laws.

In 2007, many churches cancelled Super Bowl parties after the National Football League (NFL) warned an Indiana church that it would be illegal to show the game on anything larger than a 55-inch screen. But members of Congress threatened to change copyright laws, and the NFL dropped the restriction beginning with this year’s Super Bowl.

[…]

“These organizations may show the game on any monitor, and we only ask these organizations to not charge admission — the game’s on free TV — and to hold the party at a location they usually use for other large gatherings,” [an NFL spokesperson] explains. According to the guidelines agreed to, churches may take up a donation to defray the cost of the event, if they desire.

That’s right, at least according to this report, members of Congress threatened to change copyright law to allow churches to show the Super Bowl on big screen TVs.  Because nothing says America like football and God, together under one roof.

Now, I’m all for churches showing the Super Bowl.  In fact, I belonged to a church that had a “SOUPER Bowl” party (a soup and sandwich potluck before the game started), and even though the broadcasting of the game was not part of the itinerary, I’m sure some people stayed at the church, and maybe even brought out the projection TV to show the game on a wall in the fellowship hall.  But why can’t the Fraternal order of Eagles do it? If anyone says that our country is secular, just look at the decision the otherwise IP-stodgy NFL has made here.

Further, why can’t my wife’s evite for our party have the words “Super Bowl” on the graphic, or even the Super Bowl logo? It’s certainly a descriptive  fair use (most likely a “traditional” fair use, although the “nominative” fair use exceptions may also apply) to describe the purpose for our events.    Perhaps Ron Coleman put it best:

It’s the overselling that’s offensive, because of course the NFL has a trademark right to SUPER  BOWL.  But like all IP owners, the league has set up a campaign not only to protect its legitimate rights but a buffer of illegimate intimidation-based quasi-rights around the real thing.

This buffer zone not only establishes a zone of litigation-based (not legal-based, litigation-based) early warning triggers around the real rights, such that any would-be infringer on the trademark would have to traverse the hopelessly expensive no-man’s land of illegitimate litigation threats.  It also has an even more insidious effect of actually causing an expansion of the original right itself.  It does this by actually enhancing the perceived “untouchability” of the real trademark, i.e., its isolation in the market, cinching the future results of consumer surveys and other indices (including, of course, the claim that mark holder “vigorously enforces” its rights) that could be used in a future trademark infringement or dilution claim. This is a privilege Congress, but far more so the judiciary, the latter of which almost never enforces the extant, if weak, fee-shifting provisions of the Lanham Act, have reserved exclusively to wealthy trademark owners.

So when you go to watch The Big Game this Sunday, at your church, at your home or at a purveyor of libations, please, take a moment, and enjoy the spectacle of intellectual property rights that abound.

… Oh, and call it the Super Bowl, just once. But maybe think twice before watching it on Frank’s 2000-inch TV.

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Filed under First Amendment, Law, Society, Trademarks

All Apple, all the time

From Gizmodo, this excellent post summarizing all of Apple Computer’s major legal IP battles (including the trademark battle with Apple Records, the Beatles’ record label and the resulting “sosumi” alert sound, the patent battle with Creative over the iPod’s nesting menus system, the devastating copyright battle with Microsoft, and the current IP battle with Psystar over Psystar’s Mac clones and the installation of Mac OS X on non-Apple hardware) and their outcomes.

A company never afraid of a good IP fight, either as a plaintiff or defendant

A company never afraid of a good IP fight, either as a plaintiff or defendant

As a (former?) Mac Addict, I do bask in the glow of the amazing creativity that Apple, particularly when led by Mr. Jobs, has managed to emit.  As an IP attorney, I would have loved to have been involved with many of these disputes (particularly the trademark battles–APPLE itself is a somewhat tough brand, and they’ve done a good job protecting it but not going over the top by suing, say, Applebees because Apple Computer serves food in its employee dining room), but I have to recognize that it is still like any other business, and sometimes it may go a bit too far to protect its awesome ideas (at generally-above-market-prices).

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Copyright/First Amendment Blog (from the Dark Side)?

Today, I stumbled across a (fairly) new First Amendment, copyright, and elections blog called Copyrights & Campaigns. Its author, Ben Sheffner, describes himself as “a copyright/First Amendment/media/entertainment attorney with a journalism background and a strong interest in politics” and the blog as providing “news and analysis of copyright, First Amendment, and related issues from a pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.”

It’s not too often that you see a blogger in the soft-IP, First Amendment platform specifically blogging from the “pro-copyright owner perspective,” and his prolific postings will certainly be interesting reads for me.  He has a number of recent postings of interest, such as:

  • An update on the Tenenbaum case, finding a request for amicus signatories from Tenenbaum as well as a discussion of amicus filings by the Courtroom View Network (the “network” that was originally charged with narrowcasting the oral argument), a group of news organizations, and the EFF’s amicus brief, which Scheffner himself has signed on;
  • A post comparing the Obama logo to the Pepsi Logo; and
  • A fisk refuting an article in the ABA Journal called “Copyright in the Age of YouTube.”

The blog is updated regularly, has insightful commentary you can’t find other places in the blogosphere, and is a just plain good read.  It’s on my blogroll, in my RSS aggregator, and I hope it finds its way to yours as well.  Even if Sheffner may be, at times, the copyright equivalent of Grand Moff Tarkin.

Nah... hes just a good copyright blogger.

Nah... he's just a good copyright blogger.

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Filed under Copyrights, Law, Society