Michael Phelps’s swim cap: winner trademark placement Reply

Have you noticed the MP logo front and center on Michael Phelps’s swim cap?  Visible on MP picthe starting block and many close-ups, MP is a trademark for Michael Phelps’s brand of swim gear (USPTO Serial No. 86966342).  According to a press release on www.michaelphelps.com; Michael Phelps, coach Bob Bowman and swimming equipment manufacturer Aqua Sphere have collaborated to design a line of premier swim gear and training equipment for the MP brand.  Outfitting Michael Phelps in MP gear for the Rio Olympics – including adding the MP logo front and center on Michael Phelps’s swim cap is brilliant trademark placement and likely required a savvy negotiation.  Three cheers for Michael Phelps, the MP trademark and the negotiator who secured the trademark placement.

Don’t be fooled into thinking trademark placement like the MP on Michael Phelps’s swim cap wasn’t negotiated for.  Brand promotion at the Olympics (and almost anywhere) is big business.  Official partners of the Olympics pay big bucks to share the spotlight with Olympians.  Did you notice the tape and American flag stickers placed on Olympic swimmers’ headphones to cover the BEATS trademark?  Evidently Beats gave Michael Phelps and other high-profile Olympians free headphones but did not pay to be an official Olympic partner… hence tape and stickers over their trademark.

BY: Vanessa Kaster, Esq., LL.M.

See also: Previous blog posts on trademarks at https://iplegalfreebies.wordpress.com/category/t-r-a-d-e-m-a-r-k/; The Wall Street Journal article titled, Rio 2016: Michael Phelps’s Golden Change to Rebuild His Brand by M. Futterman and R. Bachman at http://on.wsj.com/2bdgnW1 ; Reuters article titled, Phelps Challenges Former Sponsor Speedo With New Brand by L.B. Baker at http://reut.rs/1Sa6c47 ; Business Insider article titled, Michael Phelps was forced to cover the logo of his Beats headphones and he did a lackluster job with the tape by C. Gaines at http://www.businessinsider.com/michael-phelps-beats-olympics-headphones-2016-8; @iplegalfreebies and www.kasterlegal.com.


PRIVACY -fabulous play at The Public Theater about privacy online  Reply

If you have a smart phone, use apps and share content online, seeing the play PRIVACY at privacyThe Public Theater is a must.  The talented cast engages audience members in exploring the hard to grasp topic of privacy (or lack there of) online.

Who are we online? How much information do we give away about ourselves when we connect online?  Who can see us online?  

Is our location tracked each time we use a transportation app or log into a wifi network?  Is our first social media post still visible?  What privacy terms are we agreeing to each time we use an app or social media website?

The play PRIVACY is entertaining, informative, interactive and at times a bit spooky.  I give it two enthusiastic thumbs up.

BY: Vanessa Kaster, Esq., LL.M.

See also: Previous blog posts on website privacy policies at  https://iplegalfreebies.wordpress.com/category/website-privacy-policy; blog post on imitating others online at http://wp.me/p10nNq-Cg; The Public Theater’s website for information about the play and ticket sales at www.publictheater.org/en/Public-Theater-Season/Privacy/; @iplegalfreebies and www.kasterlegal.com.

Interesting facts in lawsuit filed against Richard Prince for Instagram based works Reply

The fine art photographer Donald Graham filed a complaint against the artist Richard Prince earlier this year for infringement of Mr. Graham’s exclusive rights in the acclaimed photographic work of art titled “Rastafarian Smoking a Joint” a copyrighted photograph.pic

An interesting twist to this lawsuit and claimed infringement is that the infringing use was part of a controversial show of Prince’s work at the Gagosian Gallery consisting of enlarged screenshots of people’s Instagram photos used without warning or permission – reportedly selling for $90,000 a piece.

After reading the complaint filed by Mr. Graham against Prince, here are a few interesting points that may factor into the next stage of this lawsuit or settlement:

  • Graham is a famous photographer whose work may have been known to Richard Prince before he included it in his show “New Portraits” (ironically titled) at the Gagosian Gallery.
  • Graham did not post his photo at issue to Instagram. (This is significant because by posting the photo to Instagram a user agrees to Instagram’s Terms of Use.)
  • Graham has never licensed the copyrighted photo at issue or made it commercially available for any purpose other than for sale to fine art collectors.
  • Prince and Mr. Graham’s wife exchanged tweets regarding the unauthorized use of the photo at issue. The Twitter exchange in a nutshell: Mr. Graham’s wife stated in a tweet that Prince appropriated Mr. Graham’s photograph & Prince tweeted a reply, “you can have your photo back. I don’t want. You can have all the credit in the world.”

Take a look at the images included in the “New Portraits” show (a small sampling above and a link below).  The photo at issue is clearly not your average profile picture or social media post. To me it stands out from the other images and seems possible that Prince might have known this image was Mr. Graham’s.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: The complaint Graham v. Prince. Artist Donald Graham’s website featuring the photo at issue: http://donaldgraham.com/PORTRAITS/5/caption/; a virtual tour of Prince’s exhibit New Portraits at http://www.richardprince.com/exhibitions/new-portraits_1/#/detail/10/; earlier posts on this controversial exhibition featuring Instagram photos http://wp.me/p10nNq-I0 and http://wp.me/p10nNq-En; more information on Instagram’s Terms of Use at http://wp.me/p10nNq-En; @iplegalfreebies and www.kasterlegal.com.

U.S. is a Top Destination for Immigrant Inventors 2


This map (produced by WIPO, the World Intellectual Property Organization) shows the migratory patterns for the immigrant inventor community. As you can see the United States is a top destination for these highly skilled, valuable, innovative, creative folks.  Let’s keep welcoming them!

With immigration as a focus of the current presidential campaigns in the United States, this map is a reminder of the tremendous value and contribution of many foreign-born individuals who immigrate to the United States.

“Not throwing away my shot” is one of the refrains in the hit Broadway musical Hamilton sung by Lin-Manuel Miranda… and could be the theme music for the map and this post. (Reminder: Alexander Hamilton was an immigrant.)

This map is part of a report published by WIPO in May 2013 titled, Measuring the International Mobility of Inventors: A New Database, Working Paper No. 8.  The report is available at: http://www.wipo.int/edocs/pubdocs/en/wipo_pub_econstat_wp_8.pdf

BY: Vanessa Kaster, Esq., LL.M.

See also: U.S. Patent Statistics Chart Calendar Years 1963-2015 at http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm;  hear the song “Not throwing away my shot” from the musical Hamilton and read the lyrics at http://genius.com/Lin-manuel-miranda-my-shot-lyrics; @iplegalfreebies and www.kasterlegal.com

Hard to believe Prince died without a Will Reply

Prince created a remarkable legacy of music. It’s hard to believe that Prince may not haveScreen Shot 2016-04-28 at 11.43.30 AM executed a will to protect and distribute his legacy, music archive, property and estate. According to a recent N.Y. Times article, Prince negotiated control of his valuable music copyrights & publishing catalog recently. Additionally, Prince likely has unreleased recordings. The value of these combined assets (current royalty earnings, music catalog, unreleased recordings and the copyright ownership of his music) is huge.

By executing a will, an individual states their intention for distribution of their assets. For example, who will own and manage a music catalog, copyrights, and unreleased recordings (along with other property and assets). With the amount of time and energy Prince spent creating his legacy, it’s hard to image that he did not have an intention for how his legacy would live on.

For any individual, it’s advantageous to have a will and avoid having one’s estate administered without it.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: a New York Times news article titled, Prince Died Without a Will, According to Court Documents Filed by His Sister by B. Sisario at http://www.nytimes.com/2016/04/27/arts/music/prince-died-without-a-will-according-to-court-documents.html?smprod=nytcore-iphone&smid=nytcore-iphone-share&_r=0; @iplegalfreebies and www.kasterlegal.com

Are you confused if KENTUCKY is used by both a moonshiner & a university? Reply

The KENTUCKY MIST MOONSHINE distillery has been challenged by the UNIVERSITY OF IMG_2933KENTUCKY over use of the state name in a trademark.  Not surprisingly the moonshiner has spunk and is fighting the challenge.

The Issue: The University has an issue with KENTUCKY MIST MOONSHINE seeking USPTO trademark registration of their trademark for t-shirts because the University also sells t-shirts using their registered trademark UNIVERSITY OF KENTUCKY. Evidently, the University feels the moonshiner’s use of the state name KENTUCKY in their trademark (when used to sell t-shirts) infringes the University’s registered trademark for t-shirts.

The test for trademark infringement:  The test of trademark infringement is “likelihood of confusion” – meaning will consumers be confused as to the source of the goods and services. In this instance, will University of Kentucky sports fans and moonshine drinkers be confused and think that the University is making moonshine if the moonshiner uses the KENTUCKY MIST MOONSHINE trademark (which includes the state name) to sell t-shirts?

Seems unlikely to me. Team loyalty generally runs deep with sports fans.  Sports fans seem quite capable at distinguishing their sports team from the brewery or distillery who makes their libation of choice. (Even if both sell shirts that use the state name KENTUCKY in their trademark)

As an aside, this moonshine distillery isn’t the first alcohol to be proudly made in the state of Kentucky and use the state name in their trademark.

(KENTUCKY BOURBON TRAIL CRAFT TOUR is also a registered trademark that uses the state name KENTUCKY and sells t-shirts. Reg. No. 4338130, owned by Kentucky Distillers’ Association)

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: USPTO record for KENTUCKY MIST MOONSHINE Serial No. 86924049; USPTO record for UNIVERSITY OF KENTUCKY Registration No. 2110576; earlier posts on trademarks at https://iplegalfreebies.wordpress.com/category/t-r-a-d-e-m-a-r-k/; a New York Times news article titled, (Legal) Moonshiner and University Battle Over Rights to ‘Kentucky’ by S. Stolberg at http://www.nytimes.com/2016/04/10/us/-legal-moonshiner-and-university-battle-over-rights-to-kentucky.html?_r=0; USPTO (U.S. Patent & Trademark Office) resources at www.uspto.gov; @iplegalfreebies and www.kasterlegal.com

Trademark – in a stylized font Reply

A trademark or logo can include an original font.ImageAgentProxyFor example, COCA-COLA (in a stylized font) is a famous registered trademark that includes an original font. Note that the COCA-COLA Company has registered COCA-COLA as a trademark with and without the stylized font. There are legal advantages to having registrations for a word trademark with and without a stylized font.

  • An advantage to registering the COCA-COLA trademark with a stylized font is that copycat brands can be prevented from using the typeface in a trademark to sell goods and services.
  • An advantage to registering the COCA-COLA trademark without a stylized font is that the trademark owner is granted rights to protect the text element of the trademark in any font.  Another advantage to registering a trademark without a stylized font is that it grants a level of domain protection.

A key to including a font or stylized lettering in a trademark is originality of the font or stylized lettering.  In addition to originality, other factors to consider when assessing whether to apply for USPTO registration of a trademark in a specific font or stylized letter are:

  • How instrumental the font or stylized lettering is to the brand, andIMG_2903
  • How long the specific font or stylized lettering will be used.  Back to the example of COCA-COLA, the famous trademark in stylized script has been used by the company as a trademark since 1886. (U.S. Reg. No. 0022406).

By: Vanessa Kaster, Esq. LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: Blog posts on use the TM & SM symbols on unregistered trademarks at: https://iplegalfreebies.wordpress.com/category/t-r-a-d-e-m-a-r-k/trademarks-tm-sm; USPTO (U.S. Patent & Trademark Office) resources at www.uspto.gov; @iplegalfreebies and www.kasterlegal.com



User Generated Content (love & hate) Reply

Star wars

Seeing and using the Star Wars Crawl Creator (available for free at http://www.starwars.com) is an interesting example of a shift in the approach to user generated content.  Here the content owner is giving fans an easy tool for creating a Star Wars Crawl… according to the Terms on the starwars.com website and via a sharable link to starwars.com.  This seems like a win, win, win — giving fans access to a use the famous crawl in a way that links back to the content owners website and subject to the content owners rules.

For the music and the full crawl: http://www.starwars.com/games-apps/star-wars-crawl-creator?cid=56f1b130e4b06eec3bba29e9 (AND to create your own: http://www.starwars.com/games-apps/star-wars-crawl-creator)

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: earlier posts on website Terms Of Use at https://iplegalfreebies.wordpress.com/category/website-terms-of-use/; @iplegalfreebies and www.kasterlegal.com.


Photo Release for a Horse (of course) Reply

Photo releases are a useful tool for obtaining permission to photograph models (of all photo releasetypes and species) and to use the photos of the model for specific purposes.  While we may all think of beautiful people as models, horses and other animals can be models too.  A photo release may be needed from a horse’s owner to take and use photographs of a horse for specific purposes including publication, printing, selling, distribution and commercial use.

I recently read that the owner of horse-photobomber (featured in the prize winning photograph above) has demanded some of the prize money won by the folks who took the photograph and entered it into a contest.  While the photobombing probably wasn’t planned, obtaining a photo release before taking, using or entering the photograph in the contest would likely have avoided the dispute that has developed over the prize money.  The horse’s “smile” does add to the photograph.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: earlier posts on photo releases at https://iplegalfreebies.wordpress.com/category/photo-releases; a news article on the dispute: Photobomb Horse Owner Demands Share of £2000 Selfie-Prize at www.theguardian.com/uk-news/2016/feb/02/owner-photobomb-horse-demands-share-2000-selfie-prize?CMP=fb_gu; @iplegalfreebies and www.kasterlegal.com.