Scrabulous - Infringorous!!! (Part II)

Last november I had pondered on the issue as to why Scrabble was not going after Scrabulous. Well, now they have. The possible claims are copyright and trademark infringement. Though fair use if a defense to copyright infringement, Scrabulous might fare well only if it's product is "transformative" (See Kelly v Ariba). Trademark infringement is an obvious option given the similarities that exist between the two names.

For an excellent articulation of the legal issues, visit The Legality .

Links:

Venture Beats

cNet

Baby Blues - Trademark "infringes" on baby fun

On the WSJ, Ms. Katherine Rosman wrote an article articulating how children's birthday parties are often reduced to crying fests. In baby-tongue it’s complaints about the lopsided sponge bob and in lawyer-tongue its concerns about trademark infringement.

Trademarks is a subject that is close to my heart, but so is my visiting 7 month old niece.

Proactively protecting trademarks is prudent and the old saying "prevention is better than cure" eventually becomes monetarily valuable. After all, the future success of lawsuits based on trademark infringement depends on such practice. Yet, should we consider leaning more towards business viability than towards legal paranoia?

One of the arguments from media companies is that they do not want to have their "highly developed" characters parading around a room with nappy padded bottoms running astray. Really? Are you sure that you will not find that one kid who is yet to be converted at the VERY SUCCESSFUL birthday bash?

Licensing costumes could keep a tab on the use of trademarked products and also get free mileage, up front and center, in the most persuasive crowd – the kids. Imagine, the now converted child shows up in a store, notices that character who he/she did not really care about until that party yesterday (and believe me kids can be oh so picky!) and begins the oldest and surest art of persuasion in history – WAILING! How many overworked and nearly keeling over mothers will fight that one off! Go figure.

The quivering lower lip and the watery eyes filled with dismay – admittedly it is a proponent of this stream of thought, but as a trademark lawyer business sense is not a factor far removed from decision making. To be fair, I believe costumes are licensed but are just not easily accessible. So what good is a carriage without the horses? Developing a business plan which address accessibility and yet confers limited rights to the licensee might work.

Maybe it's a thought worth revisiting.

Contributory Infringement: Who's to blame?

In a decision that will predictably be appealed, eBay can heave a sigh of relief after finding victory in American trademark law (not having had much luck in France where it coughed up a substantial chunk to Moet Hennessy Louis Vuitton). Non-liability for contributory infringement was awarded to eBay because U.S. trademark law requires that trademark owners be responsible for protecting their rights. Contributory infringement in Inwood Labs., Inc. v. Ives Labs., Inc. indicates that one who does not directly control others in the chain of distribution, can still be held responsible for their infringing activities under certain circumstances. Thus, if a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorily responsible for any harm done as a result of the deceit. Thus, providers of forums such as eBay's can rest assured (so far) that they will not be liable on the theory of contributory infringement if adequate take down procedure are in place.

Hendrix v Hendrix

In Experience Hendrix, LLC, v. Electric Hendrix, LLC at issue is trademark infringement, dilution by blurring and by tarnishment of the marks JIMI HENDRIX, JIMI HENDRIX ELECTRIC or JIMI HENDRIX ELECTRIC VODKA

Hendrix’s estate control passed from his father to his sister, Janie Hendrix. She filed a suit against Craig Dieffenbach, CEO of Hendrix Electric, who has claimed that using Hendrix’s image on a Vodka bottle is ideally associated with the spirit of Hendrix. Janie Hendrix, who claims to own much of the estate’s trademarks, has protested to the use of “very similar, if not exact” trademarked images of Hendrix on a bottle on Vodka (Jimi Hendrix’s headshot, a signature and the slogan “A JIMI HENDRIX FAMILY COMPANY”) and the suggested sponsorship.