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NEWT GINGRICH SUED FOR USE OF ‘EYE OF THE TIGER’

Tuesday, 31 January, 2012 17:50 Written by danieldavidson 0 Comments

By Daniel Davidson

These past few years, musicians have made it no secret that they prefer that the Republican Party not use their music.  Last year I reported on a story that consisted of David Byrne, lead singer of the Talking Heads, against Charlie Crist, Florida Govener.  You may recall, Crist was running for the U.S. Senate and ran an ad which contained Talking Head’s song “Road to Nowhere.”  In that case, Crist accepted settlement of a YouTube video where he “sincerely” apologizes for his misappropriation of the song.

In a recent case filed by Frank Sullivan, co-author of the inspirational song “Eye of the Tiger,” another Republican politician has become a target, this time Newt Gingrich.  This instance smells vaguely familiar to John McCain’s run in with musician Jackson Brown for he and the Ohio Republican Party’s use of “Running on Empty” at a rally.

No response has been filed on behalf of Newt, yet, but I would expect a fair use defense to be applied.  In most of the cases filed against politicians involving unauthorized use of songs (since fair use isn’t a defense to rendezvous in the oval office), a fair use defense has been raised, but no opinion has ever been given by the courts.  This leaves the question of whether politicians are able to use a song under the fair use blanket.  Also, if the campaign had purchased an ASCAP or SESAC license, a defense that they have authorized use is also plausible.  Newt’s worker bees have yet to comment on this present situation.

I would imagine that a quick resolution will be reached between the parties since Newt has no time to deal with a lawsuit while trailing in the polls.  This is unfortunate because I would like to see one of these taken all the way to the end.  That way the long running question will be answered.  Cheers.

THE NATIONAL MEDAL OF TECHNOLOGY AND INNOVATION

Tuesday, 17 January, 2012 17:31 Written by danieldavidson 0 Comments

By Daniel Davidson

I remember the day i won an award from the President.  Yes, it included a shuttle run and various other physical activities, and was presented to me by my PE teacher, but I still won an award from him!  Albeit, the Presidential Physical Fitness Award is not quite the award that is presented annually to the leading innovator of our country, however, it is an award from the POTUS.

All kidding aside, it has come time for nominations to be submitted for the National Medal of Technology and Innovation.  This medal is given to the individual, company, or group that has made the biggest contributions to America’s economic, environmental and social well-being through their inventions and/or innovations.

Currently, the U.S. Patent and Trademark Office is accepting nominations for the award, and information on the nomination process and a nomination form can be found here.  Some of the guidelines include:

  • No self nominations.  They will be rejected.
  • You can nominate an individual, a group (up to 4 people), a company, or a division of a company.
  • Governmental agencies and laboratories are eligible.
  • Finalists are subject to FBI background checks (I would only be worried if the Florida Bar was conducting the background check).

Now that you are up to speed on how to go about nominating someone, or “something,” here are some notable winners:

  • 1985 – AT&T Bell Laboratories – For contribution over decades to modern communication systems.
  • 1985 – Apple Computer, Inc. – For their development and introduction of the personal computer which has sparked the birth of a new industry extending the power of the computer to individual users.

Here is to the next recipient of the National Medal of Technology and Innovation.  Cheers!

TROY LANDRY SUES OVER TRADEMARKED SAYINGS

Tuesday, 10 January, 2012 18:07 Written by danieldavidson 1 Comment

By Daniel Davidson

Entertainment must be hard to come by these days, or the broadcast companies have realized that it is as easy as following around an alligator trapper to keep viewers entertained.  I have to admit, I am a huge fan of the show ‘Swamp People’ which airs on The History Channel.

‘Swamp People’, a show centered on various families in the Louisiana Bayou, depicts the everyday lives of an alligator trapper and the obstacles they encounter.  Some obstacles include extreme weather, poachers, gun misfires, and of course, “Tree Shakas”.

For one trapper, he has encountered a new kind of obstacle, trademark infringers.  Troy Landry, one of the more popular personalities of the show, filed a lawsuit in the U.S. District Court for the Western District of Louisiana claiming that Halpern Import Company, National Cap and Sportswear, Inc., and Ripple Junction Design Co. have infringed upon his trademark rights.  Among the trademarks which Landry claims have been infringed are, “Choot Em”, “Tree Shaka,” “Tree Breaka,” and “Mudda Fricka.”

In the Complaint filed by Troy Landry Productions, LLC, they claim that they are owners of “unregistered and federally registered trademarks,” which include the marks listed above.  Upon examination of the U.S. Patent and Trademark Office’s TESS (Trademark Electronic Search System) for trademarks filed by Landry, I did not come across any trademark registrations for any of his marks, including the applications filed for “Troy Landry” and “Got Gator.”  Although Troy doesn’t have any federal registrations for the trademark sayings, Troy does enjoy common law trademark rights in them.

The companies listed for infringement allegedly offer for sale t-shirts, caps, sweat shirts, etc. containing the “Choot Em,” “Tree Shaka,” “Tree Breaka,” and “Mudda Fricka” trademarks.

Troy Landry Productions, LLC is praying that the Court order the named Defendants be enjoined from using the trademarks, that they deliver all the merchandise, signs, displays, advertisements, packaging, and other materials, which bear the trademarks, to Landry for destruction, an accounting of all profits from the sale of the merchandise, to pay punitive damages, attorney’s fees and costs, and anything else Court deems to be proper.

I have a feeling that Mr. Landry is going to have to wage a few fights to protect his valuable trademark rights.  In protecting those rights, he will be preserving the goodwill which comes with trademarks and his fame.  In turn, Troy will be making his trademarks that much more valuable.

A DIGITAL DOWNLOAD IS A LICENSE, C’MON MAN!

Wednesday, 04 January, 2012 08:43 Written by danieldavidson 0 Comments

By Daniel Davidson

It is starting to seem like the music moguls have disregarded the opinions of the court when it comes to paying royalties to the music artists.  I have reported on this on more than one occasion, beginning with the late Rick James.  The precedent handed down by a Federal Court decided the difference between a royalty payment for a CD sale and a digital download was that a digital download is a license and the artist is entitled to a 50% cut of the sale.  In the case of Rick James – whose legacy is carried on through his family – the musician belonged to an era that didn’t have the convenience of iTunes.  The ruling by a Federal Judge made the decision retroactive for older musicians.

In a new lawsuit filed by the estate of Bruce Gary, the lead singer of the group the Knack, famous for songs like My Sharona and Good Girls Don’t, claims that the label, Capitol Records, has disregarded the decisions by the courts that a digital download is a license.  Instead they were paying lesser royalties to the Knack members.  Included in digital downloads are mastertones and ringtones. 

Bruce Gary, who passed in 2006, is carried on by his sister whom is the executor of his estate.

It is no secret that the music labels’ pockets have been hit hard with the introduction of digital downloads.  Mostly due to the introduction of P2P software such as Napster and Kazaa.  Now, with these decisions calling digital downloads licenses instead of sales, the music labels will need to ante up and give the artists what is legally theirs.  I would predict that once the industry begins paying the actual royalties necessary, a hike in digital download prices will follow.  Cheers.

TRADEMARK LITIGATION OR UNIFORM DOMAIN NAME DISPUTE RESOLUTION

Tuesday, 20 December, 2011 18:34 Written by danieldavidson 1 Comment

By Daniel Davidson

In an era where the world is connected through the internet and domain names have sold for hundreds of millions of dollars, there rests a question that calls for the ol’ pros and cons table.  When a large company, or a famous individual, builds the goodwill of their trademark, they, in most cases, will spend a significant amount of money in protecting that goodwill. 

 

Sometimes, someone comes along and feels that they will go ahead and bank off the goodwill, which has already gained notoriety, and register a domain name that is very similar, or uses a significant portion of a trademark owner’s name, and offer similar services thereon.  For example, Coca-Cola Company owns the domain www.coca-cola.com.  In an attempt to trade off the goodwill of Coca-Cola, someone may register the domain name www.cocacolasodas.com, and offer a dark-colored, fizzy drink to the public.

 

In the Coca-Cola’s example, Coca-Cola would have a few options.  I am not saying that there are only two options, but these are two ways that most domain name disputes can be resolved.  One, you can file a lawsuit against the infringer (after weeks of trying to obtain the name and address of the Registrant because they probably use a whois privacy company, and then on top of that, use a P.O. Box), and attempt to obtain a judgment.  Once the judgment is entered, you can forward a copy to the Registrar, who will then cancel the registration of the domain name.

 

Second, you can file a complaint with the ICANN using the Uniform Domain Name Dispute Resolution Policy.  In this form of domain name resolution, it is much like filing a lawsuit and obtaining a judgment, only you are not filing in a Federal Court.  In some cases, it would be more cost effective using the ICANN UDRP in obtaining a judgment, because like I mentioned, it is sometimes very difficult obtaining the information necessary to track down a Defendant.

 

The process consists of a Complaint filed against the domain name infringer.  The infringe,r or Respondent, will then have to file a Response to the Complaint.  Upon receiving the Response, the parties can file additional statements and documents within five (5) days after the Response was received.  Once all the pertinent information is in, the parties will then decide whether they prefer three panelist, or one, to decide their matter.  Electing to go with one panelist will warrant you a significant reimbursement of the approximately $3,000 (not including attorney’s fees) you pay to file the Complaint.  The elements which need to be alleged in the Complaint are:

 

            a. the manner in which the domain name is identical or confusingly similar to a trademark;

 

            b. why the infringer/Respondent has no rights or legitimate interest in the domain name; and

 

            c. how the infringer/Respondent is using the domain name in bad faith.

 

If the panel finds all the elements in a trademark holder’s favor, a judgment will be entered and will be forwarded to the Registrar of the domain name.  Cheers.

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