Author Archives: Kenan Farrell

Nadya Suleman files trademark application for OCTOMOM – but isn't the first!

16 Thursday Apr 2009

Posted by in Just for Fun, Trademark

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octomomThe big (okay, most talked about) story in trademark news today is that controversial mother-of-eight (fourteen really) Nadya Suleman has filed a trademark application for OCTOMOM.  Well, it turns out somebody beat her to it!

An earlier  OCTOMOM trademark application, Serial # 77/689,864, has been filed by Super Happy Fun Fun, Inc.  However, it’s an intent-to-use (“ITU”) application.  An ITU application allows someone to obtain clearance and approval for federal registration of a trademark before committing to all of the costs of marketing and promoting the mark. That is, an ITU application permits one to go through the examination and clearance procedure of federal registration without having to show actual use in commerce.

So who has the priority rights to the OCTOMOM trademark, Nadya or Super Happy Fun Fun? (Of course, this question assumes that either have rights.)  Generally, the first to use a mark in commerce is the owner of that mark.  The primary exception is when an ITU application for a similar mark is filed prior to the adoption and use of the mark by another.  The Super Happy Fun Fun application was filed on March 12, 2009.  But I can recall mentions of Nadya as “Octomom” at least as far back as January.  Therefore, the ITU application may not qualify for the exception, as it wasn’t filed prior to adoption and use by Nadya.  She’ll have to show that there was use in commerce prior to March 12, 2009, but seeing that she was everywhere for awhile, that may be easy enough.

On a related note, why would she want to be called Octomom?  I never saw it as a particularly complimentary moniker.  And doesn’t she have fourteen children?  Quatorzemom?!?  I’m off to file a trademark application. 🙂

Dear KLF Legal,

05 Sunday Apr 2009

Posted by in Copyright, Dear KLF Legal, Intellectual Property

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From time to time, people write in with short questions about intellectual property law. We’re always happy to help educate the public about their IP rights, so KLF Legal tries to respond to each inquiry as best we can. The answers tend to be brief since the questions don’t typically include a lot of information. However, I thought it might be helpful to share these questions from time to time in a new post category entitled “Dear KLF Legal”…enjoy!

Dear KLF Legal,

Q: Can I use public & historical names for characters I intend to use in a fictional book? Example: doll A is General Patton & doll B is Tai Babalonia.

A: Juliet:
“What’s in a name? That which we call a rose
By any other name would smell as sweet.”
Romeo and Juliet (II, ii, 1-2)

Intellectual property law will not generally prevent you from using the names of historical figures. While certain figures have protected their names as trademarks in connection with specific goods or services, names alone will not be protected.

If you start to go beyond use of a name into utilizing the likeness or persona of historical figures, you’ll want to consider not only trademark but “right of publicity” law. The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness and persona. Take a look at “right of publicity” resources on the internet and familiarize yourself with the requirements.

Hope this helps.

KLF Legal

Dear KLF Legal

Q: My Chiropractor is accused of using another companies Q & A on her website. She in fact found the info elsewhere and the page the company says she took it from is not accessible unless you know it’s there – there are no links to it. The company sent a letter demanding she remove the content AND pay them $1400 – OR she can sign up with them to provide a site redesign and hosting for a nominal monthly fee. Can they do this? She’s removed the content but is what they’ve demanded acceptable?

A: They can absolutely attempt to do that. Here are some key things she should be thinking about:

First, can she identify the location where she found the info? If so, she could prove she did not copy their work. Even if the info is identical, if she didn’t copy them, she won’t be subject to copyright penalties.

Second, not all information is copyrightable. Facts and ideas are not. On the other hand, the layout of facts is copyrightable. She might want to have a copyright attorney review the information to determine whether it’s even something that can be protected by copyright law.

As far as whether what they’ve requested is acceptable, I’ll give you an idea about copyright damages. If their work has been registered with the U.S. Copyright Office (which presumably it was prior to sending the demand letter), they could be eligible to receive statutory damages ranging from $750-30,000. If the infringement is considered willful, the award could be up to $150,000. So some level of risk definitely exists if she’s shown to have copied their work.

Hope this helps.

KLF Legal

Judge David Hamilton selected to 7th Circuit Court of Appeals

17 Tuesday Mar 2009

Posted by in Federal Initiatives, Litigation

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hamiltonJudge David F. Hamilton has been selected by President Obama to fill the vacancy on the 7th Circuit Court of Appeals.  Judge Hamilton, formerly of the U.S. District Court for the Southern District of Indiana, is the first appellate court appointment made by President Obama.  The White House is planning to announce a several additional candidates over the next few weeks to fill some of the 17 vacancies on the appeals courts, which are just below the level of the Supreme Court.

Of course, we’ll be looking forward to reporting on his treatment of intellectual property cases.

Judge Hamilton took over as Chief Judge for the U.S. District Court for the Southern District of Indiana on Jan. 1, 2008.  Which means there is now an opening in that court for Chief Judge…I’ll update as I learn more.

Happy Pi Day!

14 Saturday Mar 2009

Posted by in Just for Fun

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3/14…it’s International Pi Day!  As you know, Pi or π is a mathematical constant whose value is the ratio of any circle’s circumference to its diameter in Euclidean space; this is the same value as the ratio of a circle’s area to the square of its radius.  Today is the day that we celebrate this most irrational and transcendental number.

Fun Pi facts:
140px-pi-symbol
– There is no zero in the first 31 digits of pi.

– The Egyptians and the Babylonians are the first cultures that discovered  about 4,000 years ago.

– The pi memory champion is Hiroyoki Gotu, who memorized an amazing 42,000 digits.

– William Jones, a self-taught English mathematician born in Wales, is the one who selected the Greek letter  for the ratio of a circle’s circumference to its diameter in 1706.

Also…Happy 130th birthday Albert Einstein!

“A human being is a part of a whole, called by us “universe”, a part limited in time and space. He experiences himself, his thoughts and feelings as something separated from the rest… a kind of optical delusion of his consciousness. This delusion is a kind of prison for us, restricting us to our personal desires and to affection for a few persons nearest to us. Our task must be to free ourselves from this prison by widening our circle of compassion to embrace all living creatures and the whole of nature in its beauty.” – Albert Einstein

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Are Patent and Copyright Laws Hurting the Economy?

13 Friday Mar 2009

Posted by in Copyright, Patent, What I'm Reading

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Are patent and copyright laws hurting our economy? Two economists at Washington University in St. Louis certainly think so. Michele Boldrin and David K. Levine, in Against Intellectual Monopoly, argue that the current patent/copyright system discourages and prevents inventions from entering the marketplace.  They call for abolishing the current patent and copyright system in order to unleash innovations necessary to reverse the current recession and rescue the economy.

It’s an interesting idea and worth thinking about.  After all, most any system can be tweaked for better results.  AND, sometimes a complete overhaul is needed.  The patent and copyright laws aren’t sacred cows…why should we be afraid to reevaluate their usefulness from time to time?

But are they asking the right questions?  After all, patent and copyright laws are meant “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  U.S. Const. Art. I, Sec. 8.  New innovations are often responsible for salvaging our economy, but the Constitution doesn’t say “to boost the economy by securing for limited times to authors and inventors…”  Patent and copyright laws may need to be revisited, but the emphasis should be on the progress of science and useful arts, not on saving the economy.  Sometimes these go hand in hand, but it’s important not to be too quick to blame the current patent and copyright laws for all the woes of the economy.

Thanks to Slashdot for the book recommendation.  Go here for a full review of the book.