"Fear the Beard?" No... Fear the Feds.

After somewhat of a hiatus, I return to the blog with two of my favorite subjects in one story:  Trademark infringement and the San Francisco Giants (defending World Series Champions, of course).

It appears that federal agents seized over 2,400 t-shirts and baseball caps destined for Port au Prince, Haiti, bearing the registered trademarks of the SF Giants and famous slogans from the 2010 season, such as "Fear the Beard," a reference to the Giants' feared closer Brian Wilson's (in)famous mane, which generated huge amounts of publicity, and imitation, during the 2010 season.

Best part of the article:

"Look at this," said assistant special agent Anthony Ho as he held up a shirt that referred to the city as 'Frisco,' "There's no way anyone from San Francisco would tolerate this. This is what we call, in investigative terms, 'a clue.'"

Click here for the full article.

Sarah Palin vs. the USPTO

Last Friday the "mainstream media", blogs and intellectual property attorneys were all a-twitter over Sarah Palin's latest move: applying for trademark registrations for the names "Sarah Palin" and "Bristol Palin."  No, really.

The CNN article may be found HERE:

Upon review of the information on the U.S. Patent & Trademark Office website, it appears that our favorite Governor-turned-reality-TV-star applied for registrations under International Classes 035 and 041, for "information about political elections; Providing a website featuring information about political issues" and "Educational and entertainment services, namely, providing motivational speaking services in the field of politics, culture, business and values," respectively.  (Bristol's trademark application only covers motivational speaking services in the field of life choices.)

From a practical standpoint, this means that, if the application is approved and the trademark registered, the name "Sarah Palin" would become even more of a brand, and Sarah Palin would have the exclusive right to use the name "Sarah Palin" in connection with the above activities and take legal action against anyone else doing so without permission.  No one else could provide motivational speaking services under the name Sarah Palin, or any other name that may cause a "likelihood of confusion."

Such a registration seems completely unnecessary for the following reasons:
1. Palin would probably never be able to prove "likelihood of confusion", the standard for trademark infringement;
2. Celebrities already enjoy a "right of publicity" a right under some states' laws which gives public figures the exclusive right to exploit their names, likeness and image for commercial purposes; and
3.  FAIR USE AND PARODY.  I need not tediously describe the legal requirements for fair use and parody to confidently say that most use of the Sarah Palin trademark would fall under this category.  To be perfectly clear, Tina Fey and SNL have nothing to worry about.

BUT WAIT... THERE'S MORE!

The Palins' trademark applications were REJECTED...for failing to sign their applications.  (Click here for more details.)  As an intellectual property attorney who has filed numerous trademark applications, I can tell you that the USPTO makes it extraordinarily difficult to submit a trademark application with no signature, if not impossible.

But, even with an initially failed trademark application, the Palins have clearly succeeded. After all, we are all still talking about them, and the Palin brand lives on.

Art, Law & Beer

The Younger Lawyers Division

of the Federal Bar Association

Southern District of New York Chapter

presents

ART, LAW & BEER

a Free Event

January 26th

6:30 - 8:30 PM

at

GALLERY HENOCH

555 W. 25th Street

Featuring:

DAVID KASSAN, Figurative Artist

LILLIAN LASERSON, Copyright and Entertainment

Lawyer and Former General Counsel of DC Comics

DANIEL FISHER, Beer Blogger and Craft Beer Advocate

RSVP to Michael Zussman

mjzussman@yahoo.com

{space is limited}

Sponsored by:

Wollmuth Maher & Deutsch

Gell & Gell

Fragomen, Del Ray, Bernsen & Loewy

Copyright Protection for Fashion Designers Closer to Reality

The Senate Judiciary Committee has approved the Innovative Design Protection and Piracy Protection Act ("IDPPPA"), which (if passed by Congress and signed by President Obama) would expand Article 13 of the Copyright Act to include and protect "apparel" items such as clothing, luggage, handbags, wallets and eyeglass frames.  The IDPPA protects fashion designers from having their work stolen and reproduced.

Article 13 is somewhat of a hybrid of copyright and patent law, allowing a "designer" to secure copyright protection for "an original design of a useful article which makes the article attractive or distinctive in appearance to the purchasing or using public."  At the present, Article 13 only applies to vessel hulls, but, if passed, will also protect apparel.  Copyright protection for apparel will last for 3 years, and infringers who produce apparel "substantially identical" to the protected originals will be subject to statutory damages.

The text of the proposed bill may be found here:  IDPPPA (pdf)

Whether the IDPPPA will go any further remains to be seen, Mitch McConnell and the Senate Republicans having vowed to block "any legislative item until the Senate has acted to fund the government and we have prevented the tax increase that is currently awaiting all American taxpayers."

South Park Sued for Copyright Infringement

A few weeks ago, South Park creators Trey Parker and Matt Stone escaped a possible lawsuit for lifting lines of the movie "Inception" in one of their South Park episodes. Parker and Stone apologized for using and making fun of lines they believed came directly from the movie's script, but, in fact, were from another online parody. Apology accepted, everyone's happy.

Now, Comedy Central, Viacom and South Park's producers are being sued by the producers of "What, What (In the Butt)", a copyrighted YouTube video that went viral in 2007.

The suit alleges that South Park's "nearly frame-by-frame recreation" of the "What What" video is blatant copyright infringement. Despite the fact that South Park's video may have used the words, music, and choreography of the original video, there are some pretty obvious, and important, differences as well.

Not only does South Park provide its own animation, characters and voices for its version, but the South Park video is interrupted by images of the other South Park characters watching and reacting to the video from their home computers. South Park did not use the original "What What" video, but created its own version and provided social commentary through its presentation of the video and preceding and succeeding South Park scenes.

See the South Park clip here: http://current.com/entertainment/comedy/92803346_south-park-sued-for-copying-youtube-video-what-what-in-the-butt-video.htm?xid=RSSfeed

And here's the original: http://www.youtube.com/watch?v=fbGkxcY7YFU

What do you think? Will South Park prevail on a parody/First Amendment defense? Or did South Park go too far by copying "What What" too literally?

Reflections from the NYC Marathon (or, "Why run, if Pharaoh's not chasing you?")

The New York City Marathon is truly a multicultural and awe-inspiring experience. From the multilingual banners at the pre-race expo to the spectators' signs along the course ("¡Si se puede!" and "Vive Le France" to name just two), it is clear that NY draws athletes and crowds from across the globe. Even at the Staten Island "villages" where runners gather for hours before lining up at the start, a 20 minute Port-O-Potty line is only long enough to hear two cycles of pre-recorded instructions in about a dozen languages. The energy, number of languages, and runners wearing hand-me-downs to keep warm in 30 degree weather and shed at the starting line, these villages seem like a cross between a refugee camp and Woodstock.

The race itself proves the point. I heard the crowds screaming for Italy, France, Mexico, Canada, Chile and Norway (not to mention the Ethiopian and Kenyan frontrunners). The signs and music displayed each neighborhood's style and culture, from the bagpipes of Bay Ridge, to Salsa in Sunset Park to rap and hip-hop in the Bronx and Harlem.

Miles 10-12: South Williamsburg is another story. The course brings the runners along Bedford Ave. through Hasidic Williamsburg - dozens of Hasids on each block, watching the race - and deafening silence. Hasidic men watched us out of the corners of their eyes, as if thinking, "Why run, if Pharaoh's not chasing you?" And the women and children stood nervously at the corners, contemplating the ideal time to dash in front of the runners to cross the street, seemingly annoyed that we would dare disrupt their routine, so soon after Shabbos.

The silence was broken by the hipsters of North Williamsburg and Greenpoint, who treated us to the music of the newest indy rock bands (whoever they are) that haven't sold-out yet.

Miles 15-18: First Ave came as advertised: the adrenaline-inducing crowds after the pace-killing Queensboro bridge (where, during this race, the world marathon record holder, Haile Gebrasalassie, QUIT the race and retired from running). First Avenue sported huge crowds and more countries represented than the United Nations. And I soon passed the most prominent runner of the race - the Chilean miner recently rescued from months underground.

I waved hi to some family and friends, and then got "in the zone" to power through the last 9 miles of the race.

Miles 18 to 22 were pretty much a blur, nothing to report. And I would love to forget Miles 22-24 - a increasingly steep incline up 5th Avenue to reach the final leg of the race in Central Park.

Suddenly...it was over. The last few turns through the park were the loudest, the most inspiring and most painful part of the race. And 365 yards (the 0.2 of the 26.2) has never felt so long. I would have actually preferred to run another mile, just to postpone the wave of pain which took over my legs as soon as I stopped running. But it was a good pain nevertheless - a pain that confirmed (in case there was any doubt) that I finished a marathon.

What's YOUR Religion?

On this eve of Yom Kippur, I began to think about whether running is a religion. No, seriously.

It all started when I thought about whether I was going to fast tomorrow. On one hand, even for secular Jews, Yom Kippur is the holiest day of the year, to be respected and observed. On the other hand, I am in the midst of training for the NYC Marathon coming up on November 7, and I should be concentrating on eating carbohydrates tomorrow, in preparation for my 18 mile long-run on Sunday.

But it doesn't stop there. Like various religions, which dictate what foods you can and can't eat, and when you can eat them, running is analogous. Jews can't eat pork or shellfish, Hindus can't eat beef, and runners should have a high carbohydrate, low fat diet. Runners should avoid simple sugars like white bread and candy, and focus on whole grains, brown rice and vegetables. Protein is also advised for a speedy recovery after a long run.

Judeo-Christian faiths believe that God created the world in six days, and on the seventh day God rested. Thus, Jews have designated Saturday as the holy day of rest, and Christians have Sunday. The remainder of the week is for work, or at least not for rest. So too, with running, our training schedule designates certain days for speedwork, tempo runs, easy runs and, yes, days of rest. Though God may not have created our training program, rest is an integral and necessary part.

To the chagrin of many runners, we must cut down on drinking alcohol when formally training for a long race. We follow this rule to ensure that we are able to train to 100% of our ability, without the negative effects of alcohol. We say "No" to our friends who go out for drinks on Friday nights, and instead run past the bustling nightlife to keep up with our training. Religions regulate alcohol heavily too - it is forbidden in Islam, as it is for the Mormons, and alcohol plays a very particular role for Jews and Christians' ceremonies.

Tomorrow is the Jewish day of atonement, and runners also have their sins to confess, although not in a booth - I admit that I missed my long run last weekend, and generally don't stretch enough after my runs.

Running also dictates the clothes we wear. In synagogue I wear a kippah, and I remove my shoes to enter a monastery. Some devout Islamic women wear burqas; and bishops, cardinals and monks wear robes. Some of these items are useful, and they all have meaning. On the run, we wear running shoes to protect our feet. We wear non-cotton clothing in order to wick moisture away from our bodies, which helps maintain our temperature in extreme weather. People may say the payes on Hasidic Jews look funny, but it serves an important purpose for them. For runners, in the winter, men and women both wear tights.

If religion has a goal - to understand creation, to reach heaven, or to be good to thy neighbor, then my Nirvana is crossing the finish line on November 7.

If running is a religion, I pray for an easy fast...run.

What's YOUR Religion?

(Oh, and runners don't have wars over the Faith - whether you can run 1 mile or 30, all are welcome).