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.

Famous Trademarks Have Broad Protection (royal treatment) Reply

Famous trademarks are treated like trademark royalty and have broad protection against Screen Shot 2016-02-17 at 5.40.07 PMsimilar trademarks used on both related and unrelated goods and services.

For example, a winery applied for USPTO trademark registration of the term “PINK FLOYD” for wine and was refused registration because:

the applied-for mark consists of or includes matter which may falsely suggest a connection with PINK FLOYD the music group.  Although PINK FLOYD is not connected with the goods and/or services provided by applicant under the applied-for mark, PINK FLOYD is so famous that consumers would presume a connection.

The USPTO’s refusal to register the applied-for PINK FLOYD trademark for wine includes a four-part test used to evaluate the existence of a false connection:

The following is required for a showing of false connection under the Trademark Act Section 2(a)[in the U.S.]:

  1. The mark sought to be registered is the same as, or a close approximation of, the name or identity previously used by another person or institution;
  2. The mark would be recognized as such, in that it points uniquely and unmistakably to that person or institution;
  3. The person or institution identified in the mark is not connected with the goods sold or services performed by applicant under the mark; and
  4. The fame or reputation of the named person or institution is of such a nature that a connection with such person or institution would be presumed when applicant’s mark is used on its goods and/or services.

This is one example of the broad protection granted to famous trademarks.  (Find another way to pay tribute to a favorite band or music group).

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

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

See also: a copy of the USPTO’s final office action for the PINK FLOYD application above [Serial No.77588367]; an earlier post on new business trademarks at http://wp.me/p10nNq-B; an INTA fact sheet on Famous and Well-Known Marks at www.inta.org; earlier posts on trademarks at https://iplegalfreebies.wordpress.com/category/t-r-a-d-e-m-a-r-k/; a link to U.S. Federal Trademark Law at www.uspto.gov; @iplegalfreebies and www.kasterlegal.com.

 

 

 

Copycat Cookie = Trademark Lawsuit Reply

Last month, Pepperidge Farm sued Trader Joe’s over copycat cookies. Screen Shot 2016-01-11 at 1.57.56 PMPepperidge Farm claims the copycat cookies look too similar to its popular Milano cookies (and feature a similar “fluted paper cup” on their packaging). See the photo to the right. Pepperidge Farm claims these similarities damage its goodwill, confuse consumers and infringe its registered trademark. Interestingly, the Milano cookie shape is a registered trademark [U.S. Registration No. 3,852,499].

A few interesting details:

  • Milano cookies are famous cookies that Pepperidge Farm started selling in 1956.
  • Pepperidge Farm is a successful company, makes lots of money selling Milano cookies and can afford this litigation. (Trader Joe’s can likely afford this too).
  • The packaging of Trader Joe’s cookie features a picture of its cookies displayed in fluted paper cups (which is how Milano cookies are sold); however, the interior packaging is actually a plastic tray.
  • The two cookies are not the exact same shape. Trader Joe’s cookies are more rectangular.

This last point may be difficult to overcome. The court may be Screen Shot 2016-01-11 at 1.46.06 PMreluctant to enforce a product design trademark for a sandwich cookie when the allegedly infringing cookie is not the same shape.  It will be interesting to follow this case and see what happens next.

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

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

See also: a copy of the Complaint filed in December at http://ia601509.us.archive.org/4/items/gov.uscourts.ctd.110383/gov.uscourts.ctd.110383.1.0.pdf; earlier posts on trademarks at https://iplegalfreebies.wordpress.com/category/t-r-a-d-e-m-a-r-k/; a Reuters news article on the lawsuit: Pepperidge Farm sues Trader Joe’s over Milano cookie at http://www.reuters.com/article/us-traderjoes-pepperidgefarm-lawsuit-idUSKBN0TN1X020151205; @iplegalfreebies and www.kasterlegal.com.

Fans say YES after LEGO says NO (& refuses to fulfill an order for artist Ai Weiwei) Reply

Reading excerpts from a rejection-letter from the LEGO toymaker to the Australian National Gallery in response to a bulk legoorder for an upcoming instillation by the famous, artist Ai Weiwei… is a cautionary reminder of how quickly viral backlash can unfurl.

In addition to refusing to fulfill a bulk order for toy bricks placed by the museum, the LEGO toymaker evidently requested the following in their rejection-letter:

  1. The LEGO trademark cannot be used commercially in any way to promote, or name, the artwork; and
  2. It must be clear to the public that the LEGO Group has not sponsored or endorsed the artwork/project.

In response to the LEGO toymaker’s rejection-letter, collection points have been established around the world for LEGO brick donations to support the art project and the artist has decided to make a new work defending freedom of speech and political art.  (I’d say it’s pretty clear to the public that the LEGO Group has not sponsored or endorsed the art project).

The Brooklyn Museum is accepting LEGO brick donations – donations can be placed in the sunroof of a car parked in front of the museum or can be sent by mail –> https://www.brooklynmuseum.org/exhibitions/ai_weiwei_lego_collection_point

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 trademarks at https://iplegalfreebies.wordpress.com/category/t-r-a-d-e-m-a-r-k/; a BBC News article titled, “Australia gallery collects Lego for Ai Weiwei at http://www.bbc.com/news/world-australia-34664262; @iplegalfreebies and www.kasterlegal.com.

Wholesome image…. An Apple A Day Reply

While apple picking recently, I noticed the phrase “An Apple A Day” printed on my apple-picking bag.  AppleSeeing this phrase made me curious as to the origin of the longer, common phrase, “an apple a day keeps the doctor away.”  To me this common phrase is a marketing win, win, win; because, it invokes the following three qualities: 1) Health, 2) Wholesomeness, and 3) Daily Use.  I suspect it is no coincidence that APPLE Inc. selected a word-trademark bearing these qualities.

While I love apples… I do not eat one everyday.  However, I do use my APPLE laptop and iPhone daily.  (What would Johnny Appleseed think?)

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 trademarks at https://iplegalfreebies.wordpress.com/category/t-r-a-d-e-m-a-r-k/; a Smithsonian Article on Johnny Appleseed titled, “The Real Johnny Appleseed brought apples and booze to the American frontier” by N. Geiling at http://www.smithsonianmag.com/arts-culture/real-johnny-appleseed-brought-applesand-booze-american-frontier-180953263/?no-ist; Washington Post article: “History behind ‘An apple a day’″ by M. Ely at http://wpo.st/C94j0; @iplegalfreebies and www.kasterlegal.com.

When Monkeys Sing & Pigs Fly (Copyright news update) 1

Screen Shot 2015-09-25 at 5.14.46 PM

monkey selfie is available on wikipedia.org

It’s been quite a week for U.S. Copyright law!  This week a judge in California ruled that the popular (and commercially valuable) song “Happy Birthday to You” is not protected by copyright.  If the judge’s ruling stands the Happy Birthday song will become part of the public domain.

Also in California, a lawsuit was filed by PETA claiming that the copyright of photographs taken by a monkey (monkey selfies) should belong to the monkey. Presumably PETA should be allowed to collect and administer royalties from the photos on the monkey’s behalf.

It will be interesting to follow this monkey’s business… and these lawsuits.

BY: Vanessa Kaster, Esq.

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

See also, another post on the monkey selfies at http://wp.me/p10nNq-b5; more posts on copyright law at https://iplegalfreebies.wordpress.com/category/c-o-p-y-r-i-g-h-t; the “Happy Birthday Case” is Marya v. Warner/Chappell available at https://www.unitedstatescourts.org/federal/cacd/564772/244-0.html; The Washington Post article titled, “Monkey wants copyright and cash from ‘monkey selfies,’ PETA lawsuit says” by J. Moyer at http://www.washingtonpost.com/news/morning-mix/wp/2015/09/23/monkey-wants-copyright-and-cash-from-monkey-selfies-peta-lawsuit-says/; New York Times article titled, “’Happy Birthday’ Copyright Invalidated by Judge” by B. Sisario at http://www.nytimes.com/2015/09/23/business/media/happy-birthday-copyright-invalidated-by-judge.html; @iplegalfreebies and www.kasterlegal.com.

CITYSTICKS & POPSICLE tale of two trademarks Reply

CITYSTICK picCITYSTICKS & POPSICLE are two different trademarks for tasty frozen treats.  These two trademarks are owed by two different companies and are both registered with the USPTO.  USPTO trademark registration grants the owner of each trademark exclusive rights to use the registered trademark when selling, advertising and promoting their frozen treats.  This means that the words CITYSTICKS & POPSICLE are off limits to any other person or company selling frozen treats.  For example, if another person or company uses either of the trademarks to sell or advertise competitive goods without permission of the trademark owner they may be infringing the trademark and might be asked by the owner to stop using the trademark (i.e. to cease and desist from infringing the trademark).

POPSICLE is the older of these two trademarks and it’s no coincidence that the CITYSTICKS packaging pictured to the left and below does not use the trademarked term POPSICLE.  Instead the packaging reads, “ice pops with personalities.”  (As you can see, I quickly ate half the CITYSTICKS ice pop before I thought to photograph it for this post.  It was tasty).CITYSTICKS USPTO screen shot

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

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

See also: more on the POPSICLE trademark and protecting exclusive trademark rights  at http://wp.me/p10nNq-3t, other posts on exclusive trademark rights at https://iplegalfreebies.wordpress.com/category/t-r-a-d-e-m-a-r-k/trademark-exclusive/; USPTO (U.S. Patent & Trademark Office) resources at www.uspto.gov; #trademark, #branding, #valueyourbrand @iplegalfreebies and www.kasterlegal.com

New Rules for Creative Revenue Reply

Creative revenue streams – Here are a few of my favorites:FullSizeRender (8)

  • Inexpensive monthly subscription fees for access to video tutorials (for example teaching folks to use photography equipment or to play an instrument)
  • Parlaying social media followers into an eager audience for a book launch.
  • Composing music scores for videos and films. (It’s often much more economical for film and video makers to commission original compositions than to try and get rights to popular songs.  When I saw a preview of the documentary “Doing It In The Park: Pick-Up Basketball New York City” one of the filmmakers shared that he wished he’d commissioned an all original score from the outset).
  • Demonstration YouTube videos that include a retailer affiliate link. (Retailer affiliate links make money when folks click the link and make a purchase).

I believe that smart, creative, entrepreneurial folks can rise to the top, get noticed and make money (if they want to).

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

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

See also: “How to write a © Copyright Notice and Why to Use it” at http://wp.me/p10nNq-18; Posts on trademark topics for new businesses: https://goo.gl/xqJrOA; #creativerevenue, #valueyourart, #valueyou; @iplegalfreebies and www.kasterlegal.com.

Positive PR Spin (The Silver Lining To Controversial Use of Instagram Photo) Reply

A Positive PR Spin appears to be the outcome of choice for at least one of the folks who appeared in Richard Prince’s controversial display at the Frieze Art Fair in NYC earlier this summer. (The controversial artwork consisted of enlarged screenshots of people’s Instagram photos used without warning or permission – reportedly selling for $90,000 a piece. Blogged about here at http://wp.me/p10nNq-I0).

Lo and behold, the Instagram photo of Ms. Deere (pictured to the right) that Richard Prince put up for Screen Shot 2015-05-29 at 8.38.40 AMsale at the Frieze Art Fair was a photo that Ms. Deere posted to Instagram to promote a friend who makes beautiful, hand-crafted dolls (notice the doll in the photo to her right). The silver lining to Richard Prince’s use of Ms. Deere’s Instagram photo is that the photo was seen by even more folks… garnering more attention and notoriety… which Ms. Deere has been able to spin and re-share on social media for additional promotion of her doll maker friend.

Below is a photo and text shared by Ms. Deere recently on Instagram to refocus folks attention to the promotion of her doll maker friend. (As of today, Ms. Deere has 348K followers on Instagram).  Fingers crossed that Ms. Deere and her doll maker friend each make at least an additional $90,000.

Screen Shot 2015-08-07 at 9.54.47 AM

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 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; Observer article: “Hey Doll, the Instafame of Pidgin at http://observer.com/2015/05/meet-the-doll-maker-and-instagram-star-hacked-by-richard-prince/; Washington Post article: “A reminder that your Instagram photos aren’t really yours: Someone else can sell them for $90,000″ at http://wpo.st/XXOJ0; @iplegalfreebies and www.kasterlegal.com.