Frank Underwood accused of Trademark Infringement

playing-house-of-cards
Image from Brit + Co.

The Hollywood Reporter reported the other day that Massachusetts based company D2 Holdings, LLC. has filed suit against the Netflix drama “House of Cards” distribution company MRC II Distribution Company claiming trademark infringement and requesting that any use of the mark stop and be destroyed.

First, I suggest that MRC renames the show “In Frank We Trust” or some other variation of one of Frank Underwood’s campaign slogans.

Second, without having read the complaint and just reading the Hollywood Reporter article and the USPTO docket, I believe that D2 Holdings will most likely win out on this one and walk away with an amazing licensing deal if they are willing to go that route.

The USPTO’s Trademark Electronic Search System pulls a list of 20 marks, live and dead when the exact phrase “House of Cards” is searched.

Screen Shot 2016-03-06 at 8.51.08 PMD2 Holdings is the owner of Reg. No.: 3642647 for the following goods and services in Class 41:

Entertainment in the nature of an on-going special variety, news, music or comedy show featuring games of chance and poker broadcast over television, satellite, audio, and video media; Entertainment in the nature of visual and audio performances, and musical, variety, news and comedy shows; Entertainment services, namely, a multimedia program series featuring comedy, action and adventure distributed via various platforms across multiple forms of transmission media; Entertainment services, namely, providing an on-going radio program in the field of gaming and poker.

The mark was registered on June 23, 2009, with a first use date of September 11, 2007.

The series first aired in the U.S. when the entire first season was released on Netflix on February 1, 2013. However the U.K. series which consisted of four episodes aired during the winter of 1990.  Both series were adapted from Michael Dobbs book of the same title, that was published in 1989. (I have yet to read the book but it can be purchased on Amazon.com if you need more “House of Cards” in your life.)

The mark in question that MRC II has been using for a television series was first used approximately 4 years after D2 had registered their mark in Class 41 with the USPTO.  However in September 2014, MRC II did file, U.S. Application Serial No.: 86393463, for the “House of Cards” mark in Class 41 with the following goods and services:

Entertainment in the nature of ongoing television programs in the field of drama; Entertainment services, namely, an ongoing series featuring drama provided through Internet transmission and streaming services; Entertainment, namely, a continuing dramatic television show broadcast over Internet websites and streaming services

Upon filing this mark, the USPTO issued an office action citing D2 Holdings mark against MRC II’s application.  It appears as though MRC II sat on the office action and never responded according to the USPTO’s docket history of Serial No.: 86393463.  The office action detailed a likelihood of confusion between the two marks, pointing to the marks being identical coupled with similar goods and services.

It should be interesting to watch this case going forward, as MRC II has filed other applications for the the mark “House of Cards” as a character only mark and as a design mark.

I’ll be sure to provide any updates on this case going forward.

[All information on the marks in question can be found via the USPTO’s TESS or TSDR by searching the registration or serial number.]

Kacey Musgraves vs. Copyright Infringers

An article on TasteofCountry.com shares the feelings of country artist Kacey Musgraves on the reproduction of her lyrics on some home decorations at a large western home wear chain.

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Musgraves took to her instagram (see above and click through to read the post) to express her annoyance and opinion on the copyright infringement. The use of Musgraves lyrics, in this situation without her licensing them to the company that produced the item or granting them some sort or permission, is a infringement on her copyright regardless of whether or not they give her credit by slapping her name on the item.

The creators could have easily thought that since they gave attribution and had switched mediums, from song to words on wood that it might be Fair Use.

The Copyright Act states Fair Use as follows:

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17 U.S.C. § 107 (full Copyright Act available here as a PDF)

This item was of a commercial nature, one short line from her lyrics, and may very easily mislead the purchaser into thinking this was part of some Kacey Musgraves line of home decor.

Musgraves is doing a great job of enforcing her rights as she had the item removed from store shelves immediately.  In an earlier post on Etsy and their battle against infringement and attempts to educate their users (buyers and sellers) on Fair Use, I had expressed that despite the Copyright Act “defining” fair use, very few people fully understand what is and what isn’t fair use.

And the only reason that I mentioned Etsy is that similar items with varying song lyrics or quotes from books appear  for sale there all the time, creating a lot of confusion as to what is and is not fair use or fan art.

Very recently even Sony was trying to get a video posted by a Harvard Law professor giving a Copyright lecture taken down from YouTube because the video included snippets to songs that they owned.  To me this screamed Fair Use since it was for education purposes, but I guess you cannot blame someone for trying to exercise their rights.  To read more about this recent Fair Use debacle with Sony, check out this article on Digital Music News.

 

Deadpool? Bob? Is that you, are you legally here?

 

Image from FigureRealm.com

First things first, if you haven’t seen Ryan Reynolds as Deadpool yet, then stop reading this post and go see the movie!

Most of us, the comic nerds and movie junkies, know that quite a few movie studios have their hands in the Marvel comic book character licensing pool.  Disney, who owns Marvel, has the Avengers and associated characters, Sony has/had Spider-Man, and that Fox has the Fantastic Four,  X-Men and the word “Mutant.” A 2015 article from TechTimes.com does a great job of breaking down and explaining who owns what and why they own it.

With all of that being said, how did Bob, Agent of HYDRA make a cameo appearance in Fox’s biggest comic book hit Deadpool? If you are a comic book fan like me, then when you saw Deadpool and Bob interact on screen you immediately knew it was Bob, Agent of HYDRA, Deadpool’s best friend in the comics since Bob was introduced back in 2007.  If you are not a nerd like me and just went to see the movie cause it looked hysterical and you love Ryan Reynolds then you probably just brushed right past it and thought it was a quick comedic moment as the two raved about a T.G.I. Fridays in Jacksonville. .

Bob is an Agent of HYDRA, HYDRA is the evil corporation in the Marvel Cinematic Universe owned by Disney, not Fox.  The X-Men never fight HYDRA on the big or small screen.  Fox does not own the rights to Bob, Agent of HYDRA.  Various articles over the past few days have pointed this fact out and asked the writers how they managed to sneak him in.  Their response is that they did this by just calling him Bob, never mentioning HYDRA, and hoping that Marvel/Disney would not care enough go after them because there is very little linking him to the actual character in the comics.

I would imagine that Marvel/Disney is going to let this slide, but I doubt that we will see Bob in the sequel.  However, we will see Cable and more X-Men.

For more information on Bob appearing in Deadpool and whether it was legal or not check out this great article from CinemaBlend.com.

Want to learn more about IP Law?

If you are not already familiar with edX, then you should check them out.

Starting next week, they are offering the first part of a two part series on IP Law.  The classes are in association with University of Pennsylvania’s PennX program and are taught by R. Polk Wagner a faculty member of Penn Law. The best part is that the classes are FREE or for a small fee you can receive a verified certificate to show as proof for completing the class.

I’ve already signed up and are looking forward to these two classes, it should be a fun experience.

There is also a whole series of Law classes being offered if you would like to learn more about other areas of the law. Click here to check those out.

Help the Copyright Office – DMCA Studies

The U.S. Copyright Office is currently in the process of undertaking two public studies to assess problems/issues/effectiveness of two different provisions of the Digital Millennium Copyright Act (“DMCA”).  The notices for each study were published just before the end of the 2015 calendar year.

Instructions to submit comments will be posted on February 1, 2016 on the U.S. Copyright Office website.

If you have the time to comment/express your grievances with the DMCA, please do so.

The IP Issues Faced by Fonts/Typefaces

I recently spoke to a potential client who had licensed a font/typeface from a designer for a new logo for a local start up.  Having little/no background with fonts I had quite a few questions about the license and its scope. I did a quick Google search of articles on them and came across some interesting information.

While fonts and typefaces are not new, they do appear to be getting quite a bit of coverage in the legal world these days.  A recent article on Wired.com shed some light on piracy and typeface.  To me this was an interesting read and the follow up article on PlagiarismToday.com was even more interesting.

PlagiarismToday.com’s Johnathan Bailey points out that Fonts and Typefaces have the potential to be impacted by all three branches of Intellectual Property Law while still not being fully protected under any of them. The following excerpt from his article specifically lays out how Fonts and Typefaces can be protected in each branch.

  1. Copyright: Though one can’t copyright the alphabet or even the specific design of a typeface, the file itself that contains the typeface and installs it on a machine is considered copyrighted software, meaning it can be protected under the law.
  2. Trademark: The name of the typeface enjoys trademark protection and a specific font may as well if it is designed and used exclusively for a corporate logo.
  3. Patent: Design patents can be awarded to typefaces that are adequately original.

This is an area that going forward I’m going to be paying a little bit more attention to since the growth of font and typeface design has seemed to skyrocketed in the recent Internet age.

 

EVENT: Whose Mark is it Anyway? Trademark Law Issues Across the Entertainment Industries

The ABA is going to have what sounds like a great webinar on Trademark Law on Tuesday, November 3, 2015 at 1pm.  If by chance you happen to be a member and member of the Section on Intellectual Property Law, the Forum on the Entertainment and Sports Industries, or Center for Professional Development, then the cost is $95.

Check it out: Whose Mark is it Anyway? Trademark Law Issues Across the Entertainment Industries

Steven Tyler on Copyright Law – Part 1-

Last week Steven Tyler, the lead singer of Aerosmith, sent Donald Trump a cease and desist letter requesting that the hopeful Presidential Candidate stop playing “Dream On” at his rallies. While the letter states:

“Trump for President does not have our client’s permission to use ‘Dream On’ or any of our client’s other music in connection with the Campaign because it gives the false impression that he is connected with or endorses Mr. Trump’s presidential bid,” states the letter from Tyler’s attorney Dina LaPolt.

Tyler, himself apparently stated that the letter was far more about Copyright than it was politics.  Shortly after sending the letter, Tyler took to The Huffington Post to send a letter to Politicians asking them to Respect and Protect Copyright.

CLICK HERE TO READ STEVEN TYLER’S “POLITICIANS: RESPECT AND PROTECT COPYRIGHT”

RESOURCE: Rothman’s Roadmap To The Right of Publicity

While scouring the Internet to learn more about IP Law, I came across this wonderful and extremely useful site all about Right of Publicity.  Hopefully this is helpful to you, as I found it to be a very fascinating read and a great resource.

ROTHMAN’S ROADMAP TO THE RIGHT OF PUBLICITY

SIDENOTEJennifer Rothman, the author/creator of this site has what sounds like a great book coming out soon published by the Harvard University Press entitled A Right is Born: The Right of Publicity, Celebrity and Privacy in a Public World.

Etsy vs. Intellectual Property Law

With Halloween only a few weeks away, I have been scrambling to put together the perfect costume.  I have been looking at various cosplay websites (my go to site is CarbonCostume.com), the major/minor Halloween stores, and Etsy for my ideas.

I have found a lot of awesome and great items on all of these sites but my lawyer/law school ruined brain over thinks way to much about everything.  I’m sure that the DIY websites are free and clear of any violations, the major/minor Halloween stores are buying and selling licensed products, but Etsy seems as though it is a hot bed for Intellectual Property infringement.

The amount of user/seller created content that innocently appears to be Fan Art and fall into the ever-confusing category of Fair Use is unbelievable.  Don’t get me wrong, I am absolutely in love with the vast majority of super cool items displaying some of my favorite pop-culture characters but it makes me question whether or not the seller has a DMCA take-down notice or a cease and desist letter coming their way. I’d be curious to pick the Etsy legal counsel’s brain for the number of DMCA take-down notices that they receive daily.

The Copyright Act clearly states the Fair Use doctrine, but that doesn’t mean that it clearly defines what is and is not an act of Fair Use.

I did a quick Google search and found that Etsy has been educating it’s sellers on Copyright, Fair Use, Fan Art, and Trademark to accompany its very thorough Intellectual Property Policy.  The Legal section of the Seller Handbook has some great blog posts about Trademarks, Copyright, and Fair Use to help sellers get a feel for the depth and murkiness of the water that they are diving into.

So, if you plan on selling items on Etsy make sure to read the Seller Handbook and it’s Legal section.