The last time Peyton Manning was leading the Indianapolis Colts on a championship run (it’s been awhile), the NFL clamped down on the ability to watch the big game in churches. The NFL sent letters to churches informing them that airing the game would be a violation of the NFL’s copyright and trademark rights. However, two years ago the NFL appeared to call a reverse and allowed viewing in churches under certain conditions.
So what’s the NFL’s policy this year? Since there’s been no indication to the contrary, it seems the NFL is sticking to the policy that churches can air the Super Bowl without violating copyright laws. So start planning those parties!
Plaintiff, an Iowa corporation, has used the trademark “TURBO” in connection with agricultural products like Coulter blades, disk blades, sweeps, plow shares and other tillage tools since 2005. The trademark was registered in 2007 for “Agricultural machine parts, namely, blades.” Defendant, an Indiana corporation, is allegedly selling similar goods under the same mark. In an effort to resolve the matter, the parties entered into a Settlement Agreement in 2009, which Defendant has allegedly now breached.
Court Case Number: 1:11-cv-00021-RL -RBC File Date: Friday, January 14, 2011 Plaintiff: Osmundson Mfg. Co. Plaintiff Counsel: Larry L. Barnard and Adrienne C. Romary of Carson Boxberger LLP Defendant: CFC Distributors Inc. Defendant Counsel:Paul B. Overhauser of Overhauser & Lindman LLC Cause: Federal Trademark Infringement, Common Law Trademark Infringement, Unfair Competition, False Description, Breach of Settlement Agreement Court: Northern District of Indiana Judge: Judge Rudy Lozano Referred To: Magistrate Judge Roger B. Cosbey
Plaintiff Patricia Day is the lead singer of the Danish rockabilly band HorrorPops. Plaintiff claims a distinctive on-stage appearance, which combines:
(1) black hair meticulously done in 50’s pin-up fashion; (2) her retro hairstyle juxtaposed against conspicuous and heavily-applied black eye shadow and liner and deep red lipstick; (3) her form fitting ’50s-style pencil skirts that go just past the knees; (4) her full-color “sleeve tattoos” on both upper arms; and, most importantly (5) her distinctive instrumental extension of her personality: her giant tattooed upright bass.
Mattel allegedly created a Barbie doll using the likeness of Ms. Day without obtaining a license. In addition to being an unauthorized use of her likeness, the Barbie doll has caused Ms. Day particular anguish due to her feminist leanings and the confusion caused among peers and fans.
Why was this case filed in Indiana? Presumably to take advantage of Indiana’s right of publicity law, perhaps the most extensive right of publicity statute in the world, providing recognition of the right for 100 years after death, and protecting not only the usual “name, image and likeness,” but also signature, photograph, gestures, distinctive appearances, and mannerisms. Defendants Wonderama and Rainbow End are small Indiana toy stores (in Anderson and Daleville, respectively) that sold the allegedly infringing doll. Of course, the real targets of this lawsuit are Mattel (a Delaware corporation) and Hard Rock Cafe (a Florida corporation).
Did Mattel usurp Ms. Day’s likeness for the doll? You be the judge:
This should be an interesting case to follow step-by-step. Plaintiff has retained a few high-profile entertainment attorneys and we can expect Mattel and Hard Rock will do the same. I’ll keep you updated with each new filing. In the meantime, more images of Ms. Day for comparison sake:
Court Case Number: 1:10-cv-01689-RLY-MJD
File Date: Thursday, December 23, 2010
Plaintiff: Patricia Day
Plaintiff Counsel: John Tehranian and Peter Afrasiabi of ONE LLP
Defendants: Wonderama Toys, Rainbow’s End Collectibles, Mattel Corp., Hard Rock Cafe International (USA), Inc.
Cause: Infringement of Right of Publicity (Indiana Code 32-36), False Association and False Endorsement
Court: Southern District of Indiana
Judge: Judge Richard L. Young
Referred To: Magistrate Judge Mark J. Dinsmore
Coach strikes again. Coach makes handbags, wallets, etc. Defendant is accused of selling knockoffs from a retail store in Lafayette, Indiana. As always, Coach throws the kitchen sink at the Defendant.
Court Case Number: 4:10-cv-00100-JVB -PRC File Date: Wednesday, December 15, 2010 Plaintiff: Coach, Inc., Coach Services, Inc. Plaintiff Counsel: Alejandro Valle of Gonzalez Saggio & Harlan LLP Defendant: Diggz Clothing LLC, Lori Harth Cause: Trademark Counterfeiting, Trademark Infringement, Trade Dress Infringement, False Designation of Origin and False Advertising, Trademark Dilution, Copyright Infringement, Common Law Trademark Infringement, Common Law Unfair Competition, Forgery under Ind. Code 35-43-5-2(b), Counterfeiting under Ind. Code 35-43-5-2(a) Court: Northern District of Indiana Judge: Judge Joseph S. Van Bokkelen Referred To: Magistrate Judge Paul R. Cherry
There’s a fun new blog, Law and the Multiverse, that applies real world law to comic book scenarios. In their words:
If there’s one thing comic book nerds like doing it’s over-thinking the smallest details. Here we turn our attention to the hypothetical legal ramifications of comic book tropes, characters, and powers. Just a few examples: Are mutants a protected class? Who foots the bill when a hero damages property while fighting a villain? What happens legally when a character comes back from the dead?
The blog touches on many different areas of law, including intellectual property. Here is an excerpt:
In the real world comic book characters and their likenesses have been made into toys, video games, movies, television shows, lunchboxes, bed sheets, and innumerable other things. All of these secondary uses are mediated through intellectual property rights, particularly copyright and trademark rights. But if Superman were a real person, how might the situation be different? Could just anyone slap his image or iconic S shield on a lunchbox? What about uses that suggest that Superman endorses a product or service? (“Try Metropolis Brewery Beer, the choice of the Man of Steel!”) Or worse, what about revealing a superhero’s secret identity?
Their latest post explores a favorite topic of the Indiana Intellectual Property Blog, privacy rights:
From a superhero’s point of view, the main issues here are intrusion into his or her secret identity and secret headquarters, if applicable. The latter case is squarely within the scope of the tort (physical intrusion into a home or office is a classic example of the tort), so let’s focus on the issue of secret identity. In particular, does a superhero’s secret identity fall under the scope of the second element? And when we say “reasonable person” do we mean a reasonable regular person or a reasonable superhero, or does it matter?
The answer to the first question is probably yes. Courts have held that the right to privacy includes psychological & emotional solitude and the intrusion can occur in a public place. See, e.g., Phillips v. Smalley Maintenance Svcs, Inc., 435 So.2d 705, 711 (Ala. 1983) (holding “one’s emotional sanctum is certainly due the same expectations of privacy as one’s physical environment.” and “the ‘wrongful intrusion’ privacy violation can occur in a public place, when the matter intruded upon is of a sufficiently personal nature”). As the definition states, the intrusion need not be directly physical and can include demands and threats. Phillips, 435 So.2d at 711.
For the full post and to explore other areas of law, visit Law and the Multiverse. One of the blog authors is a recent grad of Notre Dame Law School. I’m looking forward to reading the future posts on copyright and trademark.
Indiana Intellectual Property Blog 