Month: September 2011

Fed-up judges tossing those mass lawsuits

It’s getting tougher and tougher for companies filing mass-defendant file-sharing lawsuits.  Federal judges have been ‘laying down the law’ all over the place, making it much harder for the firms to randomly sue individuals using mere IP addresses with regards to P2P file-sharing infringement. In one recent holding, U.S. Magistrate Bernard Zimmerman, in On the Cheap, LLC dba Tru Filth, LLC v. Does 1-5011, decided to drop 5,010 of the 5,011 anonymous ‘John Doe’ defendants, using everyone’s favorite civil procedure cases as support to rule out every Doe defendant that did not have personal jurisdiction in the Northern District of California.  Simply put, Judge Zimmerman stated: “[d]o not sue Californians who do not live in my district!” He also explained how impossible it would be to bring 5,011 defendants into the courtroom at the same time, in addition to each defendant having her own lawyer, issues and defenses to bring to the table. A similar holding was announced about a week earlier when U.S. MagistrateJoseph Spero dropped 187 of the 188 ‘Doe’ defendants who were only being sued because their IP address was matched up to illegal file-sharing of pornographic materials.   Even with new geolocating devices used by companies to more correctly locate the IP addresses of individuals who are using P2P services to illegally share copyrighted material,  Judge Spero stated: The court remains unpersuaded that the peer-to-peer architecture...

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Reality TV: a boom season, a legal bonanza?

This summer has been a good season for reality TV. Whether you Keep Up with the Kardashians, settle upon The Jersey Shore, pay a visit with the Real Housewives franchise, or try to completely avoid the fodder altogether, it is evident that reality television has grown exponentially since its inception with MTV’s The Real World.  Forbes magazine’s June issue, “The New Celebrity Money Makers,” noted the successful business model of reality TV as itsstars leverage the platform to build major business empires. What does this mean for attorneys? With the sale of Bethenny Frankel’s Skinnygirl brand for $120 million, the Kardashians raking in $65 million in 2010, and Jersey Shore’s The Situation bringing $5 million in endorsement deals, not including the additional $1 million “nonendorsement” deal from Abercrombie & Fitch, television network attorneys are scrambling to insert contract clauses in talent deals to ensure a stake in any business venture created out of the talents’ time on the TV shows. The attorneys for the reality stars also have kept busy helping them protect their brands: Kim Kardashian’s counsel recently filed a lawsuit against Old Navy for unfair competition and violations of publicity rights after the company ran an ad featuring an actress whose look hewed, the plaintiffs say, too closely to that of Kardashian. There’s online legal analysis arguing the lawsuit may be an attempt to protect Kardashian’s recent apparel licensing deal with...

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Beware, trademark owners: .xxx domains ahead

Imagine owning the restaurant chain ‘Pink Taco,’ with a website domain name of www.pinktaco.com. Customers obviously would understand this site belongs to your franchise. In the next month, though, the release of the .xxx domain, available to adult entertainment companies, could create considerable confusion — and consternation for those already holding .coms. Fortunately, starting this week, trademark owners have options and time to protect their brand from potential negative associations with .xxx domain names.In March, the Board of Directors of Internet Corporation for Assigned Names and Numbers (ICANN) approved .xxx domain names for “adult entertainment” websites.  Thankfully, ICM Registry LLC, the operator of the .XXX domain, is providing a Sunrise registration period, known as ‘Sunrise B’,  that allows trademark owners who are not in the adult entertainment industry to block domain names correlating to their trademarks.  This period began Sept. 7 and will run for 50 days, until Oct. 28. After this period, a “land rush” period will begin Nov. 8, during which companies will have access to remaining .xxx domain names for 17 days before these then will fall into general availability. The price for individuals and companies to protect their brand will be roughly $150-$300 per domain name in the sunrise period. Unfortunately, squatters still may get an upper-hand because trademark owners are restricted to blocking only those .xxx domains that exactly match their eligible, registered trademarks; they...

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Why celebs, too, might see red beyond hip shoe

U.S. District Judge Victor Marrero’s decision to deny Christian Louboutin’s injunction in Louboutin v. Yves Saint Laurent raises recurring issues regarding fashion’s place in U. S.  intellectual property law. The recent decision — with implications, too, for entertainment lawyers with celebrity clients wishing to extend their personal brands and build fortunes in lines of fashion items — was based on the reasoning that Louboutin’s color use  did not create a valid trademark, despite prolific evidence that proved it had acquired secondary meaning. As the company gears up to keep fighting claims of trademark infringement, the case proves that fashion continues to struggle in clearing the utilitarian and secondary meaning hurdles of copyright, trademark and in some cases patent law and to be seen as an innovative art form meriting IP protection. The case also shows that trademark protection, long the most relied upon legal strategy for the fashion industry, also may fall short. While Louboutin’s debatable use of color as a trademark may be unique to this case, that such an industry power player may be at risk of losing its legal protections makes vulnerable a legal strategy underpinning the development of emerging fashion lines, many of which get launched today by celebrities. Licensing deals in footwear, fragrance, handbags, accessories and apparel have become an integral part of personal — and profitable — branding. Rachel Zoe, Mary Kate and Ashley...

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