Author: Brandon Prior

How saying ‘OK, OK’ cost firm $4 million

An appellate court recently has found that the creator of a TV show reasonably interpreted a producer’s informal statement “OK, OK, I get it,” as an acceptance of his offer and that an agreement the parties reached was not indefinite as to the categories included in determining net royalties. The case turned on comments made during negotiations by Richard C. Davis, founder of Trademark Properties Inc., a company specializing in buying, remodeling and selling houses for profit. He discussed whether his business could be the fodder for a reality television series with Charlie Nordlander, an A&E Executive.  Their negotiations led the parties to agree to jointly develop and produce the television series “Flip This House.”  The parties agree specifics of their agreement were never written down.  Still, the series pilot and thirteen episodes of Flip This House were filmed.  Then Davis and A&E disputed how to divide the show’s net revenues. And from there sprang a lawsuit.  Davis claimed he and A&E should split all net revenues 50-50; A&E denied it had agreed to the terms claimed by Davis. He filed a state-court action against A&E for breach of oral contract.  A&E got the action moved to federal court. A jury found in Davis’ favor, awarding $4 million in damages for half of all net revenues from the show. A&E appealed to the Fourth Circuit Court of Appeals, contending the evidence was insufficient to support a finding of a...

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Paid political ads OK on public TV, court rules

A longstanding law barring public broadcast television stations from airing paid political or public-issue ads has been deemed unconstitutional by the Ninth U.S. Circuit Court of Appeals, which, in a 2-1 vote, ruled that prohibition violated the free speech clause of the First Amendment.  The court stated: “Public issue and political speech in particular is at the very core of the First Amendment’s protection … Public issue and political advertisements pose no threat of ‘commercialization.'” The issue was initially raised by Minority Television Project after the FCC  levied a $10,000 fine on the California nonprofit for running paid advertisements from companies such as State Farm Insurance, General Motors and Chevrolet on a San Francisco public television channel. The FCC argued in court that if public broadcasters become dependent on paid ads, they would reduce their educational and public service programming, replacing these with offerings that would draw wider audiences and enhance advertising revenue. But  Judge Carlos Bea, writing for the majority (Minority Television Project Inc v. FCC, Ninth U.S. Circuit Court of Appeals, No. 09-17311,) replied: “There is no evidence in the record — much less evidence which was in the record before Congress — to support Congress’s specific determination that public issue and political advertisements impact the programming decisions of public broadcast stations to a degree that justifies the comprehensive advertising restriction at issue here.” The appellate court’s April 12 decision left intact the $10,000 fine against the Minority...

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Hear, hear: Canada reverses on TM for sounds

Listen up: The Canadian Intellectual Property Office has issued a  key Practice Notice, announcing that it has begun accepting applications to register sound marks. This abrupt change in Canada’s Intellectual Property Law follows a court ruling related to a 1992 application by MGM Studio Inc. seeking to trademark the lion’s roar heard at the beginning of all MGM movies.  MGM argued identifiers that are sound-based are difficult to represent visually, restricting  consumers’ ability to specifically identify the sound with a product.  Canadian officials had contended that trademarks were limited to the visual representation of brands and their identifiers, not in nontraditional sonic fashion. The March 28 reverse, after 20 years of extensions and delays, came after Toronto’s IP office refused an MGM application in 2010, that action was appealed in federal court and MGM prevailed.  The latest decision brings Canadian trademark practice in line with other jurisdictions, including the U.S., European Union and Australia. The Practice Notice on sound marks specifically states that a Canadian application should: state that the application is for the registration of a sound mark; contain a drawing that graphically represents the sound; contain a description of the sound; and contain an electronic recording of the sound. Where it is not clear whether an application is intended to cover a sound mark, the Office will ask the applicant for written clarification. Where a sound mark is considered to be functional and/or clearly...

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Perfect circle as judge slices up pi suit on 3-14

In a case of judicial harmonic convergence, a federal judge has picked a day to make mathematics geeks sing out as he figured out whether one composer had taken an unfair slice of another’s pi (tune) and ruled the claim just didn’t add up.It has just passed. But for those who wish to truly appreciate this post, let’s start by taking judicial notice that March 14  matters to a nerdy slice of the population who fixate on one of the key numbers in math,  the constant  π (pi).  For those who went into law because their calculation skills were wanting, pi, of course, is an indefinite constant, the ratio of the circumference of any circle divided by its diameter or more commonly as 3.14159…. In 2009, the House passed a bill making  3-14 an unofficial holiday in celebration of pi. A sour note got plucked on this holiday a year ago when an unhappy composed filed a copyright infringement suit in federal court in Nebraska.  Lars Erickson, a musician and Cornhusker, asserted that Michael Blake, an Oregonian and musician, had  infringed his copyright on his Pi Symphony.  Erickson sought damages and a court orger against Blake’s composition, What Pi Sounds Like.  Both musicians, it turns out, were attuned to composing,  based on the digits of pi, translating those into music. U.S. District Judge Michael H. Simon, made this discord...

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Sorry, Cowboy, soap dropped in ‘Naked’ claim

In Naked Cowboy v. CBS and Bell-Phillip Television, U.S. District Judge Barbara Jones in New York dismissed the complaint filed by the Naked Cowboy for Lanham Act violations including trademark infringement and unfair competition by CBS and Bell-Phillip Television.  She ruled that any similarities between the Naked Cowboy and a character portrayed on a CBS-TV soap opera were “minimal at best.“ For those unfamiliar with the skin-clad cowboy in this case, the Naked Cowboy, aka Robert J. Burck II,  is a Manhattan street performer, readily identifiable because he wears little more than a cowboy hat, acoustic guitar, underwear and boots while performing daily  in Times Square for a decade now. He filed for trademark protection in October 2000 and re-registered in 2010. Shortly thereafter,  the CBS soap “The Bold and the Beautiful” aired an episode in which a character, Oliver, sweetly sings to character Amber while only wearing briefs, cowboy boots, and a cowboy hat. While Burck maintains the portrayal of a unclothed cowboy was substantially similar to that of his protected character, the district court found that the words “Naked Cowboy” were not present at any point during the episode and no such words were spoken by any characters.  Jones ruled that “[t]he Naked Cowboy costume is indeed distinctive, but … similarities between Oliver’s costume and the Naked Cowboy costume are minimal at best.” Further, Judge Jones narrowed any monopoly Burck may...

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