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Source: https://garson-law.com/feed/

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<title>Victory for Tattoo Artists</title>
<link>https://garson-law.com/victory-for-tattoo-artists/</link>
<comments>https://garson-law.com/victory-for-tattoo-artists/#respond</comments>
<dc:creator><![CDATA[Adam Garson]]></dc:creator>
<pubDate>Thu, 02 May 2024 11:30:00 +0000</pubDate>
<category><![CDATA[Copyright]]></category>
<category><![CDATA[tattoos]]></category>
<guid isPermaLink="false">https://garson-law.com/?p=6760</guid>
<description><![CDATA[<p>In 2014, we wrote about copyright litigation involving Mike Tyson’s Maori-inspired facial tattoo. The tattoo artist, Victor Whitmill, sued Warner Brothers Entertainment in an attempt to stop the release of the movie, “Hangover Part II.” in which one of the characters was tattooed in an identical manner to Mike Tyson. Recall that the wearer of a tattoo […]</p>
The post <a href="https://garson-law.com/victory-for-tattoo-artists/">Victory for Tattoo Artists</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></description>
<content:encoded><![CDATA[<div class="wp-block-image is-style-default">
<figure class="alignleft size-full is-resized"><a href="https://garson-law.com/wp-content/uploads/2024/05/Kat-von-D-copyright.png"><img decoding="async" width="250" height="150" src="https://garson-law.com/wp-content/uploads/2024/05/Kat-von-D-copyright.png" alt="copyright infringement" class="wp-image-6771" style="width:273px;height:auto"/></a></figure></div>
<p>In 2014, <a href="https://garson-law.com/fixed-in-a-tangible-medium-tattoo-art/" title="">we wrote</a> about copyright litigation involving Mike Tyson’s Maori-inspired facial tattoo. The tattoo artist, Victor Whitmill, sued Warner Brothers Entertainment in an attempt to stop the release of the movie, “Hangover Part II.” in which one of the characters was tattooed in an identical manner to Mike Tyson. Recall that the wearer of a tattoo has no claims to the copyrights in the design unless he or she has specifically obtained an assignment or license from the artist. More often than not, this does not happen and the artist retains those rights or is free to license them to others – a lesson for tattoo wearers.</p>
<p>The Whitmill case settled. Even though it did not create legal precedent, the copyrightability of tattoos is not in dispute. Tattoos are original works of authorship that are fixed in a tangible medium (skin) of expression. Disputes over copyright ownership, however, continue. </p>
<p>Moving forward a few years, in 2021, Jeffrey Sedlik, an award-winning professional photographer who created an iconic photographic portrait of the world-famous jazz musician Miles Davis, sued Katherine von Drachenberg (“Kat Von D”), a celebrity tattoo artist, for copyright infringement.  The <a href="https://garson-law.com/wp-content/uploads/2024/04/Sedlik-Complaint-031134850878.pdf" target="_blank" rel="noreferrer noopener">suit claimed</a> that she had infringed the copyright of a photograph taken by Sedlik, which she used as a reference for a tattoo worn by Blake Farmer, a lighting technician. Below are the photo and the tattoo side-by-side:</p>
<div class="wp-block-image is-style-default">
<figure class="aligncenter size-large is-resized"><a href="https://garson-law.com/wp-content/uploads/2024/04/Miles-Davis-Comparison.jpeg"><img fetchpriority="high" decoding="async" width="1024" height="618" src="https://garson-law.com/wp-content/uploads/2024/04/Miles-Davis-Comparison-1024x618.jpeg" alt="" class="wp-image-6752" style="width:575px;height:auto" srcset="https://garson-law.com/wp-content/uploads/2024/04/Miles-Davis-Comparison-1024x618.jpeg 1024w, https://garson-law.com/wp-content/uploads/2024/04/Miles-Davis-Comparison-300x181.jpeg 300w, https://garson-law.com/wp-content/uploads/2024/04/Miles-Davis-Comparison-768x464.jpeg 768w, https://garson-law.com/wp-content/uploads/2024/04/Miles-Davis-Comparison.jpeg 1176w" sizes="(max-width: 1024px) 100vw, 1024px" /></a></figure></div>
<p><br>Early in the litigation, the parties filed motions for summary judgment believing that the dispute could be settled as a matter of law. The judge <a href="https://garson-law.com/wp-content/uploads/2024/04/SJ-Order-031137921224.pdf" target="_blank" rel="noreferrer noopener">disagreed</a>. While the question of whether Kat Von D illegally copied Sedlik’s photograph is simple, the analysis turns out to be complex. The analysis turns on whether the photograph and tattoo are substantially similar, or whether Kat Von D transformed the original photograph into an image bearing a new expression or message. In the Ninth Circuit, where the lawsuit was filed, federal courts apply the so-called “extrinsic” and “intrinsic” tests to measure the similarity between a work and an alleged infringement. In the extrinsic test, similar features of the works are isolated and then the court must determine whether they are protected by copyright. In the Sedlik case, the judge weighed the parties’ evidence and concluded that there were sufficient issues of triable fact that could only be determined by a jury. The court arrived at the same opinion with respect to the “intrinsic” analysis, which “requires a more holistic, subjective comparison of the works to determine whether the they are substantially similar in “total concept in feel”.” The bottom line, the court denied Sedlik’s motion for summary judgment as to copyright infringement.</p>
<p>Kat Von D, in defense of the infringement claim, argued that her copy of Sedlik’s photograph was “fair use.” Here the court analyzed the determinative factors that weigh in favor or not of fair use. These include:</p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
<p>(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;<br>(2) the nature of the copyrighted work;<br>(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and<br>(4) the effect of the use upon the potential market for or value of the copyrighted work.</p>
</blockquote>
<p>The court explored each of those factors but with an emphasis on the first, the purpose and character of the use. The issues of transformation and commerciality are central to this analysis. A transformative work is one where an appropriation of an original creation leads to a “new creation,” either through changes to the work itself or through placement of the work in “a different context.” Kat Von D argued that the tattoo represents a new expression for three reasons: (1) the tattoo is personal to the wearer, Blake Farmer, and, therefore, presents a new expression of the image and one that must be perceived in context of Farmer’s other tattoos; (2) tattoos create a new expression because they are permanently imprinted on the human body and thus exhibit personal meanings; and (3) Kat Von D used Sedlik’s photo is a reference and added her own interpretation of the image. </p>
<p>The court also looked to whether use of the photograph was of a commercial nature. Defendant argued that it was not commercial because neither Kat Von D nor her employer charged Farmer for the tattoo. Sedlik opposed this argument because defendants “received and enjoyed in direct economic benefit in the form of advertising, promotion and goodwill.”</p>
<p>The judge wrote, ” Considering commerciality and transformativeness together, the Court finds triable issues remain as to both elements of the factor, and therefore the first factor cannot be determined as a matter of law.” The court went on to examine the other fair use factors. If you are interested in the details of the arguments raised by the parties, we would urge you to review the <a href="https://garson-law.com/wp-content/uploads/2024/04/SJ-Order-031137921224.pdf" target="_blank" rel="noreferrer noopener">court’s order.</a> <br><br>In January of this year the jury returned a verdict for Kat Von D. The trial focused on many of the same issues raised in the summary judgment motions. Arguments were made regarding the substantial similarity and transformative use of the Davis portrait. Kat Von D’s defense highlighted that the tattoo was an artistic interpretation rather than a direct copy, noting alterations in lighting and details that gave the tattoo a different feel and composition from the photograph. Ultimately, the jury decided that Kat Von D’s work did not violate copyright law, emphasizing that her tattoo constituted a transformative use of the original photograph. The <a href="https://www.nytimes.com/2024/01/27/arts/kat-von-d-miles-davis-tattoo-copyright-trial.html" target="_blank" rel="noreferrer noopener">New York Times recorded</a> the attorneys’ reactions to the verdict:</p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
<p>“This case should never have been brought,” Alan Grodsky, Kat Von D’s lawyer, said on Friday. “It took the jury two hours to come to the same conclusion that everybody should have come to from the start: That what happened here was not an infringement.”</p>
<p>Sedlik plans to appeal the verdict, his lawyer, Robert Allen, said.</p>
<p>“Obviously, we’re very disappointed,” Allen said. “There are certain issues that never should have gone to the jury. The first, whether the tattoo and the photograph were substantially similar. Not only are they substantially similar, but they’re strikingly similar.”</p>
</blockquote>
<p>We have seen no evidence that an appeal was filed. Tattoo artists may rejoice in the verdict but should take heed. With another jury, the verdict could have easily gone the other way. So, if you’re going to copy someone else’s artwork only a license may protect you from a lawsuit. Otherwise, your livelihood may depend upon somebody else’s (read, judge or jury) determination of “similarity”. </p>
<p>— Adam G. Garson, Esq.</p>The post <a href="https://garson-law.com/victory-for-tattoo-artists/">Victory for Tattoo Artists</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></content:encoded>
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<slash:comments>0</slash:comments>
</item>
<item>
<title>Ask Dr. Copyright — He tackles the Basics!</title>
<link>https://garson-law.com/ask-dr-copyright-he-tackles-the-basics/</link>
<comments>https://garson-law.com/ask-dr-copyright-he-tackles-the-basics/#respond</comments>
<dc:creator><![CDATA[Lawrence Husick]]></dc:creator>
<pubDate>Mon, 29 Apr 2024 12:00:38 +0000</pubDate>
<category><![CDATA[Ask Dr. Copyright]]></category>
<category><![CDATA[Copyright]]></category>
<category><![CDATA[Intellectual Property]]></category>
<guid isPermaLink="false">https://garson-law.com/?p=3086</guid>
<description><![CDATA[<p>Dear Doc: You often write complicated articles about interesting and esoteric matters of intellectual property law. How about something at a more basic level that I can share with my children to help them understand what copyright is all about? Signed, Loco Parentis   Dear Loco (and which among us parents is not loco from […]</p>
The post <a href="https://garson-law.com/ask-dr-copyright-he-tackles-the-basics/">Ask Dr. Copyright — He tackles the Basics!</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></description>
<content:encoded><![CDATA[<div></div>
<div>
<div><em><a href="https://garson-law.com/wp-content/uploads/2015/04/copyright-Q-e1464985348338.jpg"><img decoding="async" class="size-full wp-image-1697 alignleft" src="https://garson-law.com/wp-content/uploads/2015/04/copyright-Q-e1464985348338.jpg" alt="Ask Dr. Copyright" width="100" height="143" /></a>Dear Doc:</em></div>
<div>
<div>
<div>
<p><em>You often write complicated articles about interesting and esoteric matters of intellectual property law. How about something at a more basic level that I can share with my children to help them understand what copyright is all about?</em></p>
</div>
<div><em>Signed,</em></div>
<div>
<p><em>Loco Parentis</em></p>
<p> </p>
</div>
<div>
<p>Dear Loco (and which among us parents is not loco from time to time?):</p>
</div>
<div>
<p>Sure, I’d be glad to help. Here goes with the basic Q&A</p>
</div>
<h3><strong>1. What is copyright?</strong></h3>
<div>
<p>It’s a when the law recognizes that a person owns something that she creates that expresses an idea. This can be words, but it can also be pictures, songs, games, sculptures – just about anything creative. As long as it’s original (meaning that you did not copy it from someone else) the law will help protect it.</p>
</div>
<h3><strong>2. How do I get a copyright?</strong></h3>
<div>
<p>That’s easy! All you have to do is get the idea out of your head and onto some medium (paper, a screen, an MP3 file, a lump of clay). Copyright protection is instant and automatic.</p>
</div>
<h3><strong>3. Do I need to put the © symbol on it to have a copyright?</strong></h3>
<div>
<p>Nope. You certainly may do that (or use the word “copyright” or the abbreviation “Copr.”) but you don’t have to. The law protects you even if you don’t (as long as you’re in the United States or one of the many countries that is part of the Berne Convention treaty.)</p>
</div>
<h3><strong>4. Do I need to register my copyright?</strong></h3>
<div>
<p>Not unless you (a) need to go to court to sue someone who copies your work without your permission or (b) want to be able to do that in the future and to also collect what your lawyer may charge to handle the case as well as have a judge decide how much money you will get from the person who illegally copied your work (that’s called “statutory damages”.)</p>
</div>
<h3><strong>5. How do I know if I am allowed to copy someone else’s work?</strong></h3>
<div>
<p>That’s a very difficult question, but there are some guidelines. First, if the date on the thing you want to copy is before 1923, then it’s called “public domain” because its copyright has definitely run out, and you can copy it all you’d like. There are other things that you can also copy that are newer, but knowing which they are requires some research to figure it out. You can always ask permission if you know who owns a copyright, but there are times when you can’t even figure that out (maybe the person who owned it moved away and did not leave a new address.)</p>
</div>
<h3><strong>6. Can I just copy things if I am using them for school work?</strong></h3>
<div>
<p>In general, the answer is “yes, but” – you should always put in a note that says where you got the things you copies – that’s called a “citation”. In school, we worry about “plagiarism” (saying that something is your idea when it’s not) which is like violating a copyright, but is more bad school behavior than a legal problem. When you “cite” you take care of plagiarism by giving credit for the idea to the person who thought it up. In most cases, if you copy something for school, you’re protected because you are doing something that is “fair” in using another person’s copyright, and the law allows you to do that.</p>
</div>
<h3><strong>7. Where can I learn more about copyrights?</strong></h3>
<div>
<p>Go to the Copyright Office web site: <a href="http://www.copyright.gov/" target="_blank" rel="noopener" shape="rect">www.copyright.gov</a></p>
<h3>More Questions for Dr. Copyright?</h3>
</div>
<div>
<p>Hope that helps! If you have any other questions about copyright, trademark, patent, trade secrets, or other IP stuff, talk to one of the attorneys at LW&H. They know so much about this stuff that it will make you head hurt just to think about it (but please, think about it!)</p>
</div>
<div>Until next month,</div>
<div>
<p>The “Doc”</p>
</div>
<div>
<p>P.S. – The cheerleader uniform case that the Doc wrote about a few months ago was decided by the Supreme Court. You’ll be glad to know that the stripes, stars, moons, clovers and other stuff on the uniforms was determined to be a sculpture, separate from the uniform itself, and thus, protected by copyright. Now you know why those skimpy uniforms are so darned expensive: they’re sculptural works of art!</p>
<p>— Lawrence A. Husick, Esq.</p>
<p><em>*Originally posted on Apr 21, 2017</em></p>
</div>
</div>
</div>
</div>The post <a href="https://garson-law.com/ask-dr-copyright-he-tackles-the-basics/">Ask Dr. Copyright — He tackles the Basics!</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></content:encoded>
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<slash:comments>0</slash:comments>
</item>
<item>
<title>Ask Dr. Copyright — Music for Political Purposes</title>
<link>https://garson-law.com/ask-dr-copyright-music-for-political-purposes/</link>
<comments>https://garson-law.com/ask-dr-copyright-music-for-political-purposes/#respond</comments>
<dc:creator><![CDATA[Lawrence Husick]]></dc:creator>
<pubDate>Mon, 22 Apr 2024 11:00:00 +0000</pubDate>
<category><![CDATA[Ask Dr. Copyright]]></category>
<category><![CDATA[Copyright]]></category>
<category><![CDATA[copyright]]></category>
<category><![CDATA[fair use]]></category>
<category><![CDATA[political use of music]]></category>
<guid isPermaLink="false">https://garson-law.com/?p=4000</guid>
<description><![CDATA[<p>Dear Doc: I’ve heard that politicians who use music at their campaign appearances and in their Internet postings (Tweets, Memes, and other stuff) need to get permission from the music artists, and that sometimes, they don’t. What happens then? Signed,Dazed and Confused   Dear D&C:The basic rule of copyright is that unless use of a […]</p>
The post <a href="https://garson-law.com/ask-dr-copyright-music-for-political-purposes/">Ask Dr. Copyright — Music for Political Purposes</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></description>
<content:encoded><![CDATA[<div class="wp-block-image">
<figure class="alignleft"><img decoding="async" src="https://garson-law.com/wp-content/uploads/2015/04/copyright-Q-e1464985348338.jpg" alt=""/></figure></div>
<p><em>Dear Doc:</em><br><br><em>I’ve heard that politicians who use music at their campaign appearances and in their Internet postings (Tweets, Memes, and other stuff) need to get permission from the music artists, and that sometimes, they don’t. What happens then?</em><br><br><em>Signed,</em><br><em>Dazed and Confused</em>   </p>
<p>Dear D&C:<br>The basic rule of copyright is that unless use of a protected work is either excused as “fair use” or done with permission, then it is deemed an infringement of the exclusive rights of the copyright owner. Because the fair use exceptions do not include political campaigning, any candidate for office wanting to use a work, such as a song, should get a license from the owner. Much of the time, the owner is not the performer, but rather, is the music label, and the rights are managed by a third party such as ASCAP, BMI, and so on. Recently, we saw this in action when Donald Trump tweeted a meme that included the Nickelback song “Photograph”.     </p>
<figure class="wp-block-image is-resized"><img decoding="async" src="https://garson-law.com/wp-content/uploads/2019/10/TrumpTweet.jpeg" alt="using music for political purposes - donald trump tweet" style="width:840px;height:auto"/></figure>
<p>After a complaint, the video that featured the song was blocked by Twitter, as can be seen above.The copyright complaint was made by Warner Music Inc., according to information posted in the <a rel="noreferrer noopener" href="https://www.lumendatabase.org" target="_blank">Lumen Database</a>, a project that tracks copyright complaints.     </p>
<p>The same requirement for a license to use music applies to public performances, such as the music played at a political rally. After his 2013 song “Happy” was used at a Trump rally in Indiana, composer Pharrell Williams issued a cease and desist letter to the campaign. Other music artists have filed similar demands of other political campaigns across the political spectrum. According to the British Newspaper, The<em> Guardian</em>, “Bands protesting against politicians is nothing new, but the lineup of musicians who have asked Trump to stop playing their songs alone is a Rock and Roll Hall of Fame on its own.” The Rolling Stones, REM, Adele, and Aerosmith have demanded that their music not be played by the <a rel="noreferrer noopener" href="https://qz.com/quartzy/1444115/all-the-songs-trump-has-been-asked-not-to-use-in-one-playlist/" target="_blank">Trump campaign</a>.    </p>
<p>Other musicians have used other legal strategies. Steven Tyler of Aerosmith sent a cease-and-desist of his own, objecting to the use of “Livin’ on the Edge” at a Trump campaign rally, following a similar complaint three years earlier that the campaign ignored. “By using Livin’ On The Edge without our client’s permission, Mr Trump is falsely implying that our client, once again, endorses his campaign and/or his presidency, as evidenced by actual confusion seen from the reactions of our client’s fans all over social media,” the letter said.     </p>
<p>This specifically violates Section 43 of the Lanham Act, as it ‘is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person’.” The Lanham Act is the federal trademark statute.   </p>
<p>Often, a politician will comply with an artist’s request because the negative attention from a popular band is more trouble than continuing to play their song. But, in music, as with much else, Mr. Trump and his campaign often seems to be playing by their own rules. Trump still concludes almost every rally with the Rolling Stones’ “You Can’t Always Get What You Want”. The Doc agrees (with the song, if not with how it’s being used.)   </p>
<p>Need to issue a cease and desist or respond to one? Call the attorneys at LW&H. They’re really experienced on both counts. You’ll almost certainly get what you want. Unless you’re sending the notice to you-know-who.   Until next month,   </p>
<p>The “Doc” </p>
<p>–Lawrence A. Husick, Esq.</p>
<p><em>*Originally posted on November 28, 2019</em></p>The post <a href="https://garson-law.com/ask-dr-copyright-music-for-political-purposes/">Ask Dr. Copyright — Music for Political Purposes</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></content:encoded>
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<slash:comments>0</slash:comments>
</item>
<item>
<title>Ask Dr. Copyright © About Innovation</title>
<link>https://garson-law.com/ask-dr-copyright-about-innovation/</link>
<dc:creator><![CDATA[Lawrence Husick]]></dc:creator>
<pubDate>Thu, 18 Apr 2024 11:30:00 +0000</pubDate>
<category><![CDATA[Ask Dr. Copyright]]></category>
<category><![CDATA[Apple]]></category>
<category><![CDATA[innovation]]></category>
<guid isPermaLink="false">https://garson-law.com/?p=6712</guid>
<description><![CDATA[<p>Dear Doc: For some time now, we have heard and read that Apple, Inc. has lost its famous ability to innovate. What does that mean, and do you agree? Signed, Your College Friend Who Refuses to Use Any Apple Products, Ever! Dear John: As you know, the Doc bought his first Apple computer in 1979 […]</p>
The post <a href="https://garson-law.com/ask-dr-copyright-about-innovation/">Ask Dr. Copyright © About Innovation</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></description>
<content:encoded><![CDATA[<div class="wp-block-image is-style-default">
<figure class="alignleft size-full"><a href="https://garson-law.com/wp-content/uploads/2015/04/copyright-Q-e1464985348338.jpg"><img loading="lazy" decoding="async" width="100" height="143" src="https://garson-law.com/wp-content/uploads/2015/04/copyright-Q-e1464985348338.jpg" alt="Ask Dr. Copyright" class="wp-image-1697"/></a></figure></div>
<p><em>Dear Doc:</em></p>
<p><em>For some time now, we have heard and read that Apple, Inc. has lost its famous ability to innovate. What does that mean, and do you agree?</em></p>
<p><em>Signed,</em></p>
<p><em>Your College Friend Who Refuses to Use Any Apple Products, Ever!</em></p>
<p>Dear John:</p>
<p>As you know, the Doc bought his first Apple computer in 1979 (and he still has that Apple] [+, and it still works!). He has owned countless Apple products since then, and now uses an iPhone, MacBook Pro, iMac, AppleTV, AirPods, HomePods, Apple Watch, and owns stock in Apple. That said, the Doc also met Apple founders Woz and Jobs (a few times each), and Steve Jobs was a supporter of the Doc’s first startup venture, Infonautics, Inc. The Doc also served as Apple’s first “Legal Fellow.” The Doc has first-hand knowledge about the history of innovation at Apple.</p>
<div class="wp-block-image">
<figure class="alignright size-full"><a href="https://garson-law.com/wp-content/uploads/2024/04/Apple-innovation.png"><img loading="lazy" decoding="async" width="250" height="150" src="https://garson-law.com/wp-content/uploads/2024/04/Apple-innovation.png" alt="Apple Inc." class="wp-image-6728"/></a></figure></div>
<p>So why do we see published statements like, “Once considered a synonym of innovation and prowess, Apple Inc. is under mounting scrutiny over its ability to sustain the crown of ‘tech industry pioneers’. Co-founded by Legendary Tech. magnet, Late. Steve Jobs, the company made its mark with the famous slogan “<a href="https://www.youtube.com/watch?v=5sMBhDv4sik" target="_blank" rel="noopener" title="">Think Different</a>,” setting the stage for a series of groundbreaking products that reshaped entire industries. However, in recent years, Apple’s innovation prowess has come under fire and has made many of its loyal customers wonder – ‘<a href="https://www.linkedin.com/pulse/has-apple-lost-its-innovative-edge-closer-look-tech-giants-rawat/" target="_blank" rel="noopener" title="">Has their beloved brand lost its Innovative edge</a>?’”</p>
<p>The Doc teaches his students at the Johns Hopkins University Whiting School of Engineering that innovation is both a noun (“tools and toys”) and a verb: a process of <a href="https://www.fpri.org/article/2008/05/more-than-just-tools-and-toys-teaching-innovation/" target="_blank" rel="noopener" title="">creating added value</a>. While most people understand innovating by making new things, they fail to appreciate that creating value from investments of capital is the core of an innovative organization. Apple excels at both sides of the innovation equation and has managed to do so for a <a href="https://guides.loc.gov/this-month-in-business-history/april/apple-computer-founded" target="_blank" rel="noopener" title="">very long time</a>.</p>
<p>Being innovative, however, does not necessarily mean being first. They say that you can usually recognize a pioneer by the many arrows lodged in his back. “First mover advantage” is, in many cases, overrated, because to benefit from it, the innovator needs to overcome many risks: technology, production, market introduction, supply chain, and many more. Doing this requires lots of capital and a large supply of plain old luck. Apple rarely attempts to be the first in a product category, preferring to allow others to pave the way, and then designing its product to solve problems encountered by the pioneers.</p>
<p>There were personal computers before the Apple ][, but you had to <a href="https://americanhistory.si.edu/collections/nmah_334396" target="_blank" rel="noopener" title="">build your own</a> before you could plug it in and use it. There were computers with graphic user interfaces before the Macintosh (the “Computer for the Rest of Us”), but they cost $15,000 (<a href="https://interface-experience.org/objects/xerox-star-8010-information-system/" target="_blank" rel="noopener" title="">Xerox Star</a>) or $5,000 (<a href="https://computerhistory.org/blog/the-lisa-apples-most-influential-failure/" target="_blank" rel="noopener" title="">Apple Lisa</a>). There were laser printers before the LaserWriter, but no software that turned them into printing presses (<a href="https://personal.garrettfuller.org/blog/2021/05/24/aldus-pagemaker-a-look-at-early-desktop-publishing/" target="_blank" rel="noopener" title="">AppleWrite and PageMaker</a>). There were cellphones that could email before the iPhone, but they had <a href="https://www.illumy.com/blackberry-phone/" target="_blank" rel="noopener" title="">tiny keyboards</a> and no useful web browser or music player. In each case, what Apple added was a focus on how humans would use the technology to be more creative and more productive. This <a href="https://developer.apple.com/design/human-interface-guidelines" target="_blank" rel="noopener" title="">“human-centered design” philosophy</a> has always been key to Apple’s innovative success.</p>
<p>So, has Apple lost the ability to innovate? Hardly! Apple has, however, taught its competitors how to be better. Just as Windows was a copy of the MacOS, and gradually matured to be very successful (any version before 3.1 was, frankly, terrible), and Android is a copy of iOS (just look at the design PowerPoint from Samsung that was <a href="https://archive.org/details/436142-samsung-relative-evaluation-report-on-s1-iphone" target="_blank" rel="noopener" title="">evidence</a> in the lawsuit between Apple and that company to see how each icon and function was analyzed and copied, the competitive landscape is more innovative than ever.</p>
<p>By the way, with each new product that Apple introduces, it seems that the world has the <a href="https://www.yahoo.com/tech/s/read-hilariously-negative-reactions-original-iphone-announcement-173924562.html" target="_blank" rel="noopener" title="">same reaction</a>: “It’ll never work.” Just look at the press about Apple’s newest product, the VisionPro.  That response is best summed up in the Doc’s favorite quote about innovation, from a book about telegraphs by Abraham Edelkrantz, published in 1796:</p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
<p>It often happens, with regard to new inventions, that one part of the general public finds them useless and another part considers them impossible. When it becomes clear that the possibility and the usefulness can no longer be denied, most agree that the whole thing was fairly easy to discover and that they knew about it all along.</p>
</blockquote>
<p>So if you’re an innovator, give a shout to the attorneys at LW&H, each of whom is an innovator as well as a student of innovation. They can help to protect that value you create.</p>
<p>Until next month,</p>
<p>The “Doc”</p>The post <a href="https://garson-law.com/ask-dr-copyright-about-innovation/">Ask Dr. Copyright © About Innovation</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></content:encoded>
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<title>But Mom, Why is the Spider-Man Costume So Expensive?</title>
<link>https://garson-law.com/but-mom-why-is-the-spider-man-costume-so-expensive/</link>
<dc:creator><![CDATA[Lawrence Husick]]></dc:creator>
<pubDate>Mon, 15 Apr 2024 12:30:36 +0000</pubDate>
<category><![CDATA[Copyright]]></category>
<category><![CDATA[Trademark]]></category>
<guid isPermaLink="false">https://garson-law.com/blog/?p=780</guid>
<description><![CDATA[<p>As the days grow shorter, it seems that the shorter people (we call them “kids”) start to want costumes and large bags the size of small dump trucks into which kindly neighbors intent on supporting the local dental association will deposit “treats.” You may have noticed that some costumes (for example, independent small-business marine entrepreneurs, […]</p>
The post <a href="https://garson-law.com/but-mom-why-is-the-spider-man-costume-so-expensive/">But Mom, Why is the Spider-Man Costume So Expensive?</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></description>
<content:encoded><![CDATA[<p><a href="https://garson-law.com/wp-content/uploads/2011/10/Halloween-Costumes.png"><img loading="lazy" decoding="async" class="size-full wp-image-6744 alignleft" src="https://garson-law.com/wp-content/uploads/2011/10/Halloween-Costumes.png" alt="Halloween costumes" width="250" height="150" /></a>As the days grow shorter, it seems that the shorter people (we call them “kids”) start to want costumes and large bags the size of small dump trucks into which kindly neighbors intent on supporting the local dental association will deposit “treats.” You may have noticed that some costumes (for example, independent small-business marine entrepreneurs, native American leaders, Wiccans, and the like – political correctness is very important to us attorneys) are relatively inexpensive, while other name-brand Halloween costumes such as Spider-Man®, Batman®, Superman®, any Teenage Mutant Ninja Turtle®, Super Mario®, and Mickey Mouse® to name but a few, cost amounts that would bankrupt some small African nations. Why, you may wonder, is there this price disparity? (Or, if you’re like most in suburbia, you just pay it and hope that for a brief and shining moment, the tykes will be happy and quiet in the back of the SUV.)</p>
<h2>Why the Price Difference?</h2>
<p>Most of the price difference between generic costumes and the fancy recognizable characters may be attributed to what intellectual property lawyers (you didn’t think that this was just an article about Halloween, did you?) call “BRAND VALUE”. In other words, the companies that own the copyrights and trademarks in everything from Scooby Doo® to SpongeBob Squarepants® (and no, that is NOT a cute nickname for our law partner, Bob Yarbrough…) charge licensing fees to the costume manufacturers for the privilege of using their famous characters’ appearances. After all, these corporations have spent a great deal of time, money, and effort getting your kids to instantly recognize and imitate the characters (just ask a six-year-old what Squidward<img src="https://s.w.org/images/core/emoji/15.0.3/72x72/2122.png" alt="™" class="wp-smiley" style="height: 1em; max-height: 1em;" /> says, or which TransFormer® is the best.)</p>
<h3>Making Your Own Costumes? Think Twice Before Posting Online</h3>
<p>As a practical matter, if you make your own costumes, you don’t have to worry about paying royalties to the owners of the intellectual property. Beware, however, of posting that cute video showing your adorable homemade Buzz Lightyear® costume on YouTube…the trademark police may just get annoyed. Got an equally obtuse concern about intellectual property? Give the attorneys at LW&H a shout (but try not to use a catchphrase of a famous cartoon character…those are registered too.)</p>
<p>— Lawrence A. Husick, Esq.</p>
<p><em>*Originally posted on October 31, 2011</em></p>The post <a href="https://garson-law.com/but-mom-why-is-the-spider-man-costume-so-expensive/">But Mom, Why is the Spider-Man Costume So Expensive?</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></content:encoded>
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<title>Too ‘Obvious’ for a Design Patents?</title>
<link>https://garson-law.com/too-obvious-for-a-design-patents/</link>
<dc:creator><![CDATA[Robert Yarbrough]]></dc:creator>
<pubDate>Thu, 11 Apr 2024 11:30:00 +0000</pubDate>
<category><![CDATA[Patent]]></category>
<guid isPermaLink="false">https://garson-law.com/?p=6714</guid>
<description><![CDATA[<p>Designers Take Note – Designs can be too ‘Obvious’ for a Design Patent There are two types of patents* – utility patents and design patents. Utility patents address what something is and how it works. Design patents address how something looks. An example of a utility patent is a patent for a better mousetrap with a […]</p>
The post <a href="https://garson-law.com/too-obvious-for-a-design-patents/">Too ‘Obvious’ for a Design Patents?</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></description>
<content:encoded><![CDATA[<h2 class="wp-block-heading">Designers Take Note – Designs can be too ‘Obvious’ for a Design Patent</h2>
<div class="wp-block-image">
<figure class="alignleft size-full"><a href="https://garson-law.com/wp-content/uploads/2024/04/Harvey-Ball-smiley-face-1.png"><img loading="lazy" decoding="async" width="250" height="150" src="https://garson-law.com/wp-content/uploads/2024/04/Harvey-Ball-smiley-face-1.png" alt="Harvey Ball" class="wp-image-6737"/></a></figure></div>
<p>There are two types of patents* – utility patents and design patents. Utility patents address what something is and how it works. Design patents address how something looks. An example of a utility patent is a patent for a better mousetrap with a new way of catching mice. An example of a design patent is a patent that protects how the mousetrap looks, say, for example, if it resembled a piece of cheese.</p>
<p>Today, our topic is design patents.</p>
<p>To receive a design patent, a design must be (a) novel and (b) non-obvious. Remember that design patents rely on the appearance of an object, not how it works, so we must be able to evaluate its appearance. Here’s how the <a href="https://supreme.justia.com/cases/federal/us/81/511/" target="_blank" rel="noopener" title="">USPTO and the courts</a> will determine whether a design is ‘novel’:</p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
<p><strong><em>[I]f</em></strong>, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, <strong><em>two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other </em></strong>. . . . (Emphasis supplied).</p>
</blockquote>
<p>This is known as the ‘ordinary observer test.’ In other words, if two designs are so similar that an ‘ordinary observer’ would mistake a later design for the earlier design, then the later design is not novel and is anticipated by the earlier design. In practical terms, that means the two designs must be very, very close, if not identical.</p>
<p>That’s the easy part. On to obviousness. </p>
<p>In general, design patent ‘obviousness’ involves combining two or more earlier designs to create the later design, rendering the later design ‘obvious’ and not patentable.  </p>
<p>But wait a minute. Can’t every ornamental design be a combination of earlier design elements? Consider the smiley face, the 1963 creation by graphic artist Harvey Ball (that’s him in the image above). It’s a yellow circle, a couple of dots and a curved line or two – but by 1971, <strong><em>50 million smiley face buttons were sold</em></strong>. Certainly, the smiley face design, made from old elements, was greater than the sum of its parts.</p>
<p>So how to determine whether the sum of old design elements renders a new design obvious and not patentable?</p>
<p>For many years, the courts have applied what’s known as the <a href="https://casetext.com/case/in-re-rosen-2" target="_blank" rel="noopener" title="">Rosen</a> and <a href="https://law.resource.org/pub/us/case/reporter/F3/101/101.F3d.100.96-1119.html" target="_blank" rel="noopener" title="">Durling</a> tests, after the parties in two court cases.  Under the Rosen and Durling test, the USPTO (or a court) must find a prior design that is “basically the same as the claimed design” when considering the design as a whole.  If such a prior design exists, then the USPTO or the court will consider whether an “ordinary designer” would combine a second prior design to the ‘basically the same’ reference to come up with the new design.</p>
<p>In practical terms, the USPTO and the courts are reluctant to conclude that a prior design is “basically the same” as a new design, so design patents and applications have been largely immune from obviousness issues. As a result, design patents have become more important to innovators as utility patents have become harder to enforce.</p>
<p>That’s about to change. Some years ago, the <a href="https://supreme.justia.com/cases/federal/us/550/398/" target="_blank" rel="noopener" title="">U.S. Supreme Court</a> seriously messed with the issue of obviousness in the area of utility patents, rejecting rigid formulae for determining obviousness and concluding that courts and patent examiners must follow a loose, flexible, more of an ‘I’ll know it when I see it’ approach to utility patent obviousness. Those loose, flexible criteria for obviousness have never been applied to design patents – until now, that is.</p>
<p>The case is <em>LKQ Corp. v GM</em>, which is currently pending before the Federal Circuit.  GM produces cars and obtained a design patent for the fender of one of its cars.  LKQ is a manufacturer of replacement fenders and wants to produce copies of GM fenders freely, without worrying about GM’s design patents. A panel of three judges at the <a href="https://cafc.uscourts.gov/opinions-orders/21-2348.OPINION.1-20-2023_2066528.pdf" target="_blank" rel="noopener" title="">Federal Circuit rejected</a> LKQ’s challenge, concluding that the prior design presented by LKQ was not ‘basically the same’ as the GM design under Rosen/Durling and lamenting that the panel could not change Federal Circuit precedent without the participation of all of the Federal Circuit judges (there are twelve in total).</p>
<p>Well, all twelve judges are now participating and heard arguments earlier this year.  It’s clear from the judge’s questions that the law is about to change, and in a way not beneficial to designers and design patent owners.  Exactly what the new law will be remains to be seen.  We expect a decision this summer and will keep you posted.</p>
<p><sup>*Actually, there are three. Plant patents are outside the scope of this article.</sup></p>The post <a href="https://garson-law.com/too-obvious-for-a-design-patents/">Too ‘Obvious’ for a Design Patents?</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></content:encoded>
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<title>Non-Fungible Tokens Revisited</title>
<link>https://garson-law.com/non-fungible-tokens-revisited/</link>
<dc:creator><![CDATA[Adam Garson]]></dc:creator>
<pubDate>Thu, 04 Apr 2024 11:30:00 +0000</pubDate>
<category><![CDATA[Intellectual Property]]></category>
<category><![CDATA[Internet Law]]></category>
<category><![CDATA[Trademark]]></category>
<category><![CDATA[NFT]]></category>
<guid isPermaLink="false">https://garson-law.com/?p=6716</guid>
<description><![CDATA[<p>Remember NFTs (“Non-Fungible Tokens”)? As a reminder, an NFT is a type of digital asset that represents ownership or proof of authenticity of a unique item or piece of content, such as artwork, music, videos, or collectibles, using blockchain technology. Unlike cryptocurrencies like Bitcoin, which are fungible and can be exchanged on a one-to-one basis, NFTs […]</p>
The post <a href="https://garson-law.com/non-fungible-tokens-revisited/">Non-Fungible Tokens Revisited</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></description>
<content:encoded><![CDATA[<div class="wp-block-image">
<figure class="alignright size-full"><a href="https://garson-law.com/wp-content/uploads/2024/04/Non-Fungible-Tokens.png"><img loading="lazy" decoding="async" width="250" height="150" src="https://garson-law.com/wp-content/uploads/2024/04/Non-Fungible-Tokens.png" alt="" class="wp-image-6719"/></a></figure></div>
<p>Remember NFTs (“Non-Fungible Tokens”)? As a reminder, an NFT is a type of digital asset that represents ownership or proof of authenticity of a unique item or piece of content, such as artwork, music, videos, or collectibles, using blockchain technology. Unlike cryptocurrencies like Bitcoin, which are fungible and can be exchanged on a one-to-one basis, NFTs are unique and cannot be exchanged on a like-for-like basis, making each NFT distinct and irreplaceable.<br><br>In the early 2020s, NFTs were a hugely popular blockchain mechanism for storing digital assets and ensuring the authenticity of digital artwork. During that period, we wrote about NFTs as they pertained to <a href="https://garson-law.com/trademarks-and-nfts-more-headaches/" target="_blank" rel="noopener" title="">trademarks</a> and <a href="https://garson-law.com/ask-dr-copyright-about-nfts/" target="_blank" rel="noopener" title="">copyrights</a>. At that time, the NFT market exploded. Literally, billions of dollars in digital assets were bought and sold. <a href="https://www.forbes.com/advisor/au/investing/cryptocurrency/are-nfts-dead/#:~:text=Has%20the%20value%20of%20NFTs,historical%20significance%20or%20high%20demand." target="_blank" rel="noopener" title="">Forbes</a> recently wrote about the rise of NFTs and their subsequent fall, which the author attributed to simple supply and demand. “The realization that not all NFTs would retain their value or promise significant returns started to set in, leading to decreased buyer interest and market prices.” The fallen NFT values, according to the author, were “compounded by the overall decline in the crypto market.” </p>
<p>According to the <a href="https://www.forbes.com/advisor/au/investing/cryptocurrency/are-nfts-dead/#:~:text=Has%20the%20value%20of%20NFTs,historical%20significance%20or%20high%20demand." target="_blank" rel="noopener" title="">Forbes article</a>, some NFTs have retained their value and still hold “appeal and potential.” More importantly, the underlying blockchain technology still has serious applications for digital rights management and authentication of assets. Indeed, the United States Patent and Trademark Office and the United States Copyright Office just released their <a href="https://garson-law.com/wp-content/uploads/2024/03/Joint-USPTO-USCO-Report-on-NFTs-and-Intellectual-Property.pdf" target="_blank" rel="noopener" title="">joint report to Congress</a> on “Non-Fungible Tokens and Intellectual Property” (“Joint Report”). It’s a lengthy report that provides a readable history and explanation of NFTs. Rather than summarize the whole report, let’s take a look at the section on trademarks.</p>
<p>The Joint Report discusses the evolving role of NFTs in the trademark ecosystem, federal registration of trademarks involving NFTs, trademark infringement and enforcement, and recommendations:</p>
<p><strong>1. Evolving Role of NFTs in the Trademark Ecosystem</strong></p>
<p>Trademarks are source identifiers. As such, the Joint Report points out the traditional role of trademarks in the NFT system: “[t]rademarks can be used to indicate the source of the underlying assets associated with the NFTs, such as digital art, video clips of iconic sports moments, or physical shoes.” This observation is an extension of how trademarks function in the non-digital world. More importantly, the Joint Report notes that the NFT marketplace provides new opportunities for brand owners to expand, promote and strengthen their brands. In light of the downturn of the NFT market discussed in the Forbes article, referred to above, these new opportunities will be slow to develop.</p>
<p>According to the Joint Report, NFTs may provide an important mechanism for verifying or certifying the source of physical objects not just because of the application of a trademark but because the immutable record provided by blockchain technology acts as a trustworthy source of information about the underlying product. The Joint Report speculates that NFTs may be useful in the trademark registration process by providing, for example, trustworthy evidence of dates of first use. Brand owners, according to the Joint Report, could also use NFTs and <a href="https://www.spiceworks.com/tech/innovation/articles/what-are-smart-contracts/#:~:text=A%20smart%20contract%20is%20defined,programming%20languages%20such%20as%20Solidity." target="_blank" rel="noopener" title="">smart contracts</a> to manage trademark rights.</p>
<p><strong>2. Federal Registration of Trademarks Involving NFTs</strong></p>
<div class="wp-block-image is-style-default">
<figure class="alignright size-full is-resized"><a href="https://garson-law.com/wp-content/uploads/2022/04/BirkenBagNFT.jpeg"><img loading="lazy" decoding="async" width="980" height="980" src="https://garson-law.com/wp-content/uploads/2022/04/BirkenBagNFT.jpeg" alt="" class="wp-image-5299" style="width:190px;height:auto" srcset="https://garson-law.com/wp-content/uploads/2022/04/BirkenBagNFT.jpeg 980w, https://garson-law.com/wp-content/uploads/2022/04/BirkenBagNFT-300x300.jpeg 300w, https://garson-law.com/wp-content/uploads/2022/04/BirkenBagNFT-150x150.jpeg 150w, https://garson-law.com/wp-content/uploads/2022/04/BirkenBagNFT-768x768.jpeg 768w" sizes="(max-width: 980px) 100vw, 980px" /></a></figure></div>
<p>The Joint Report explores guidance and recommendations about the proper identification of goods and services and the appropriate evidence for trademark use pertaining to NFT-related goods and services in the trademark registration process. Most important, however, is the Joint Report’s discussion of the scope of protection afforded by U.S. trademark registration for NFTs. In particular, there is uncertainty as to whether the USPTO and federal courts when conducting likelihood of confusion analyses will consider physical goods offered outside of the NFT markets as similar to digital versions of those goods associated with the NFT markets. The Joint Report noted that this may not be a concern in light of the <a href="https://garson-law.com/wp-content/uploads/2024/03/HERMES-NFTS-LAWSUIT-pi.pdf" target="_blank" rel="noopener" title="">MetaBirkins decision</a>, in which the federal court made a finding of trademark infringement by considering NFT-related “depictions of physical products to be sufficiently similar to physical products not associated with NFTs to substantiate a finding of likelihood of confusion.” If you’re interested in the MetaBirkins case, we also discuss it in a <a href="https://garson-law.com/trademarks-and-nfts-more-headaches/" target="_blank" rel="noopener" title="">previous newsletter article</a>.</p>
<p><strong>3. Trademark Infringement and Enforcement</strong></p>
<p>According to the Joint Report, trademark misappropriation and infringement frequently occur on NFT platforms. In fact, it may be one of the most common forms of trademark infringement. Concerns were raised with respect to the lack of controlling judicial precedents on the issue of whether “trademark registration for physical goods can be enforced against use of that mark on similar digital goods tied to NFTs.”</p>
<p>Concern was also raised as to whether NFT platforms will take down unauthorized uses of the mark used in connection with digital goods “based on a trademark registration for similar physical goods.” Another area of concern was the use of registered trademarks in blockchain-based domain names for which there is no dispute resolution mechanism as there is for <a href="https://www.icann.org/resources/pages/help/dndr/udrp-en#:~:text=All%20registrars%20must%20follow%20the,or%20transfer%20a%20domain%20name." target="_blank" rel="noopener" title="">Internet domains</a>.</p>
<p><strong>4. Recommendations</strong></p>
<p>Among the recommendations in the Joint Report were for NFT platforms to adopt best practices and protocols to prevent trademark infringement and for the USPTO to provide NFT-specific guidance to trademark-examining attorneys and applicants. Such steps would help maintain predictability and consistency in the registration process as well as assist registrants and applicants in making informed portfolio management decisions.</p>
<p>Whether the Joint Report will motivate Congress to legislate in this area is anybody’s guess. Given the decline in the NFT market, it’s not likely to be a top priority. We will continue to follow this interesting topic.</p>The post <a href="https://garson-law.com/non-fungible-tokens-revisited/">Non-Fungible Tokens Revisited</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></content:encoded>
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<title>Ask Dr. Copyright © About Infringement</title>
<link>https://garson-law.com/ask-dr-copyright-about-infringement/</link>
<dc:creator><![CDATA[Lawrence Husick]]></dc:creator>
<pubDate>Thu, 21 Mar 2024 11:30:00 +0000</pubDate>
<category><![CDATA[Ask Dr. Copyright]]></category>
<category><![CDATA[trademark infringement]]></category>
<guid isPermaLink="false">https://garson-law.com/?p=6675</guid>
<description><![CDATA[<p>Dear Doc: How can a person tell if one stuffed toy infringes the intellectual property rights in another stuffed toy?  Asking for a friend. Signed,J. Sinestvet Dear J: When the Doc was about to graduate from law school, he was interviewed for a job at a prominent Philadelphia patent law firm. The Doc has a […]</p>
The post <a href="https://garson-law.com/ask-dr-copyright-about-infringement/">Ask Dr. Copyright © About Infringement</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></description>
<content:encoded><![CDATA[<div class="wp-block-image is-style-default">
<figure class="alignleft size-full is-resized"><a href="https://garson-law.com/wp-content/uploads/2015/04/copyright-Q-e1464985348338.jpg"><img loading="lazy" decoding="async" width="100" height="143" src="https://garson-law.com/wp-content/uploads/2015/04/copyright-Q-e1464985348338.jpg" alt="Ask Dr. Copyright" class="wp-image-1697" style="width:94px;height:auto"/></a></figure></div>
<p><em><a></a>Dear Doc:<br><br>How can a person tell if one stuffed toy infringes the intellectual property rights in another stuffed toy?  Asking for a friend.<br><br>Signed,<br>J. Sinestvet</em></p>
<div class="wp-block-image">
<figure class="alignright size-full"><a href="https://garson-law.com/wp-content/uploads/2024/03/Copyright-of-plush-toys.png"><img loading="lazy" decoding="async" width="250" height="150" src="https://garson-law.com/wp-content/uploads/2024/03/Copyright-of-plush-toys.png" alt="copyright infringement of stuffed animals" class="wp-image-6696"/></a></figure></div>
<p></p>
<p>Dear J:</p>
<p>When the Doc was about to graduate from law school, he was interviewed for a job at a prominent Philadelphia patent law firm. The Doc has a degree in chemistry, had done graduate studies in microprocessor computer systems, and had worked in a patent law practice for two years. During the interview, the senior partner at the law firm abruptly marched the Doc out of his office and down the hall, and disappeared into a walk-in closet. The senior attorney emerged brandishing two stuffed mouse toys, which he held up to the Doc’s face and demanded, “INFRINGEMENT???”</p>
<p>The Doc, being a chemist, computer guy, and general technology nerd, replied, “How should I know?” Needless to say, the Doc did not get the job!</p>
<p>Even today, the Doc still has trouble understanding the plush (that’s what the toy folks call them) toy wars. Case in point: <a href="https://www.cnn.com/2024/02/15/business/squishmallow-build-a-bear-legal-battle-knock-offs/index.html" target="_blank" rel="noreferrer noopener">Squishmallows owner Kelly Toys is taking Build-A-Bear to court</a>. Both Kelly Toys and Build-A-Bear filed lawsuits on the same day after Build-A-Bear started selling its Skoosherz line of plushies. (<a href="https://dockets.justia.com/docket/missouri/moedce/4:2024cv00211/209644" target="_blank" rel="noreferrer noopener">Kelly Toys Holdings LLC, et al. v. Build-A-Bear Workshop Inc., Case No. 2:24-cv-01169, in the U.S. District Court for the Central District of California</a> and <a href="https://www.pacermonitor.com/public/case/52304995/BuildABear_Workshop,_Inc_v_Kelly_Toys_Holdings,_LLC_et_al" target="_blank" rel="noreferrer noopener">Build-A-Bear Workshop Inc. v. Kelly Toys Holdings LLC, et al., Case No. 4:24-cv-00211</a>, in the U.S. District Court for the Eastern District of Missouri.) For Kelly Toys, the problem is that Skoosherz look too much like its Squishmallows. </p>
<p>Kelly Toys filed its trademark infringement case in California, while Build-A-Bear filed a declaratory judgment of invalidity of trade dress case in Missouri. Kelly Toys outlined the Squishmallows history: They were released in 2016 with distinctive designs — they’re oval, usually animals, and have cute faces. Most importantly, they’re very soft and squishable. (Kelly Toys, by the way, is owned by Jazwares, which acquired the Squishmallow maker in 2020. Jazwares itself is owned by Berkshire Hathaway.) They were one of the top-selling toys of 2022. The company alleged that its Squishmallows line, of which there are more than 3,000, made $200 million in 2022, a 300% increase above the prior year. So, when Build-A-Bear first revealed its Skoosherz line, the first thing people did was compare them to Squishmallows.</p>
<div class="wp-block-image is-style-default">
<figure class="aligncenter size-full is-resized"><a href="https://garson-law.com/wp-content/uploads/2024/02/PastedGraphic-1.png"><img loading="lazy" decoding="async" width="936" height="748" src="https://garson-law.com/wp-content/uploads/2024/02/PastedGraphic-1.png" alt="" class="wp-image-6664" style="width:328px;height:auto" srcset="https://garson-law.com/wp-content/uploads/2024/02/PastedGraphic-1.png 936w, https://garson-law.com/wp-content/uploads/2024/02/PastedGraphic-1-300x240.png 300w, https://garson-law.com/wp-content/uploads/2024/02/PastedGraphic-1-768x614.png 768w" sizes="(max-width: 936px) 100vw, 936px" /></a></figure></div>
<p>You can see why from the photo, no? Build-A-Bear said in its lawsuit that they aren’t copycats — they’re round, pillow-like versions of its own original plush toys.  Noting that Build-A-Bear hired the same Chinese factory that manufactures Squishmallows, Kelly Toys asserts:</p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
<p>Rather than competing fairly in the marketplace by creating its own unique concepts and product lines, Defendant Build-A-Bear, a company worth over $300 million, decided that it would be easier to simply copy, imitate, and profit off the popularity and goodwill of Squishmallows, all in the hopes of confusing consumers into buying its products instead of Squishmallows.</p>
</blockquote>
<p>On the other hand, Build-A-Bear lawyers wrote. “From a toy designer’s perspective, each of these claimed trade dress features is necessary to either depict the various characters or animals, or is necessary to create this category of pillow-type plush that is currently trending.” </p>
<p>Kelly Toys has a history of litigating over its Squishmallows line, including suits against Tee Turtle’s Flip-A-Mallows toys, Beanie Babies maker Ty for its Puffies and Squish-a-Boos, and Dan-Dee International for its Squishy line. Several of these were dismissed, Build-A-Bear’s lawyers said. Others were settled, according to court records. Several lawsuits against individual stores remain pending.</p>
<p>INFRINGEMENT??? The Doc still, more than 40 years later, has no idea what infringes what. But the attorneys at LW&H can help you to sort it all out. Give them a call.</p>
<p>Until next month,</p>
<p>The “Doc”</p>
<p>— Lawrence A. Huisck, Esq.</p>The post <a href="https://garson-law.com/ask-dr-copyright-about-infringement/">Ask Dr. Copyright © About Infringement</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></content:encoded>
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<title>APPLE v SAMSUNG – Design Patent Law Moves Closer to Trademark Law</title>
<link>https://garson-law.com/apple-v-samsung-design-patent-law-moves-closer-to-trademark-law/</link>
<dc:creator><![CDATA[Adam Garson]]></dc:creator>
<pubDate>Mon, 18 Mar 2024 13:00:17 +0000</pubDate>
<category><![CDATA[Intellectual Property]]></category>
<category><![CDATA[Patent]]></category>
<category><![CDATA[Trademark]]></category>
<category><![CDATA[Design Patents]]></category>
<guid isPermaLink="false">https://garson-law.com/blog/?p=927</guid>
<description><![CDATA[<p>A ‘design patent’ is a monopoly granted by the government to make, use and sell a product having a particular appearance. Design patents protect how a product looks, not what it does. A person who copies a product protected by a patent, including a product protected by a design patent, will be ordered to stop […]</p>
The post <a href="https://garson-law.com/apple-v-samsung-design-patent-law-moves-closer-to-trademark-law/">APPLE v SAMSUNG – Design Patent Law Moves Closer to Trademark Law</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></description>
<content:encoded><![CDATA[<p><a href="https://garson-law.com/wp-content/uploads/2012/05/Apple-v-Samsung.png"><img loading="lazy" decoding="async" class="size-full wp-image-6683 alignleft" src="https://garson-law.com/wp-content/uploads/2012/05/Apple-v-Samsung.png" alt="smart phones - apple v samsung" width="250" height="150" /></a>A ‘design patent’ is a monopoly granted by the government to make, use and sell a product having a particular appearance. Design patents protect how a product looks, not what it does. A person who copies a product protected by a patent, including a product protected by a design patent, will be ordered to stop infringing by a court only if the patent owner can demonstrate that the patent owner will suffer ‘irreparable harm’ due to the infringement that cannot be compensated by money damages. Such a court ‘injunction’ against an infringer is difficult to obtain under this standard.</p>
<p>On the other hand, a ‘trademark’ indicates the source of a particular type of goods. If a trademark becomes ‘famous’ (for example, Coca-Cola®) then a court will order a trademark infringer not to use the famous trademark for other types of goods if the use will ‘dilute’ the famous trademark; that is, if the use will reduce the stature of the famous trademark in the eyes of the public. It is easier to obtain an injunction stopping infringement under the famous trademark standard than under the patent standard.</p>
<p>Apple and Samsung are in a worldwide battle over the alleged copying of Apple’s patented smartphone and tablet computer designs by Samsung. In a <a href="http://r20.rs6.net/tn.jsp?e=001pFmErevu25m11enG2ZBezgsTazB5ZWghc601FRAP0WfajRRkZZZwWs7Mp4m0ggDTXr1fFB3wECCqP2wjIBY6MqFhV_TLkinphYVZmvufV73f51laW7YGY-a1VT81hSTT0-c93bsWVcDu1gCs_eaDEOKSb46jy9p7xOsRnVtyvnDdF6pjP8v0Fg==" target="_blank" rel="noopener" shape="rect">case</a> before the Federal Circuit Court of Appeals, Apple argued that Samsung should be enjoined from selling its Galaxy smartphones because Samsung’s copying of the patented Apple design amounts to ‘design dilution.’ The argument is that Apple is ‘irreparably harmed’ for purposes of a preliminary injunction because Samsung’s product will ‘dilute’ the Apple design in the eyes of the public. This argument blends the trademark concept of dilution into patent law. The trial court rejected the argument for lack of evidence. The Federal Circuit affirmed the trial court’s conclusion that the argument was not supported by evidence, but concluded that it “would have been improper” to reject the argument outright. The Federal Circuit Court’s decision leaves Apple free to renew the argument with more evidence when the case comes to trial.</p>
<p>The <em>Apple v Samsung</em> case blurs the distinction between trademark and design patent law and potentially will ease the burden of a design patent owner in stopping an infringer.</p>
<p>— Robert Yarbrough, Esq.</p>
<p><em>*Originally posted on May 31, 2012</em></p>The post <a href="https://garson-law.com/apple-v-samsung-design-patent-law-moves-closer-to-trademark-law/">APPLE v SAMSUNG – Design Patent Law Moves Closer to Trademark Law</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></content:encoded>
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<title>When and Why are Inventions ‘Obvious’</title>
<link>https://garson-law.com/when-and-why-are-inventions-obvious/</link>
<dc:creator><![CDATA[Robert Yarbrough]]></dc:creator>
<pubDate>Thu, 14 Mar 2024 11:30:00 +0000</pubDate>
<category><![CDATA[Patent]]></category>
<category><![CDATA[Obviousness]]></category>
<guid isPermaLink="false">https://garson-law.com/?p=6667</guid>
<description><![CDATA[<p>Maybe We’ll Actually Receive an Explanation from the USPTO The USPTO had a lot of patent examiners (8,568 to be exact) reviewing a lot of patent applications (462,000 new applications received last year).  Those examiners make thousands of determinations every day as to whether inventions are patentable or not.  Aside from forms, wording, fees, and whether […]</p>
The post <a href="https://garson-law.com/when-and-why-are-inventions-obvious/">When and Why are Inventions ‘Obvious’</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></description>
<content:encoded><![CDATA[<h2 class="wp-block-heading">Maybe We’ll Actually Receive an Explanation from the USPTO</h2>
<div class="wp-block-image">
<figure class="alignleft size-full is-resized"><a href="https://garson-law.com/wp-content/uploads/2023/12/utility-and-design-patents.png"><img loading="lazy" decoding="async" width="250" height="150" src="https://garson-law.com/wp-content/uploads/2023/12/utility-and-design-patents.png" alt="utility and design patents" class="wp-image-6512" style="width:222px;height:auto"/></a></figure></div>
<p>The USPTO had a lot of patent examiners (<a href="https://www.uspto.gov/sites/default/files/documents/USPTOFY23AFR.pdf" target="_blank" rel="noreferrer noopener">8,568 to be exact</a>) reviewing a lot of patent applications (462,000 new applications received <a href="https://www.uspto.gov/sites/default/files/documents/USPTOFY23AFR.pdf" target="_blank" rel="noreferrer noopener">last year</a>).  Those examiners make thousands of determinations every day as to whether inventions are patentable or not.  Aside from forms, wording, fees, and whether the invention is of a type that is even can be the subject of a patent, the examiners make their decisions based on three criteria.  To paraphrase:</p>
<p>(a) Does the invention have ‘<a href="https://www.govinfo.gov/content/pkg/USCODE-2022-title35/pdf/USCODE-2022-title35-partII-chap10-sec101.pdf" target="_blank" rel="noreferrer noopener">utility</a>;’ that is, does it do something?<br>(b) Is the invention ‘<a href="https://www.govinfo.gov/content/pkg/USCODE-2022-title35/pdf/USCODE-2022-title35-partII-chap10-sec102.pdf" target="_blank" rel="noreferrer noopener">novel</a>;’ that is, has exactly the same invention been done before?<br>(c) Is the invention ‘<a href="https://www.govinfo.gov/content/pkg/USCODE-2022-title35/pdf/USCODE-2022-title35-partII-chap10-sec103.pdf" target="_blank" rel="noreferrer noopener">non-obvious</a>;’ that is, would the invention be obvious to an imaginary person “having ordinary skill in the art?” </p>
<p>An invention must pass all three criteria to qualify for a patent. Criteria (a) and (b) are fairly straightforward – either the invention does something or it doesn’t, and either the invention has been done before or it hasn’t.  The third criterion is the problem.  Note that the definition of ‘obvious’ (created by Congress) includes the defined term – an invention is ‘obvious’ if it’s obvious.  Not helpful. </p>
<p>In the absence of meaningful guidance from Congress, the courts have stepped in, notably the <a href="https://supreme.justia.com/cases/federal/us/550/398/" target="_blank" rel="noreferrer noopener">U.S. Supreme Court</a> in 2007.  The Supremes concluded that the analysis of whether an invention is ‘obvious’ must be flexible and consider all angles, effectively punting the question back to the lower courts. However, the Supreme Court did say that “…[t]o facilitate review, this [obviousness] analysis must be made explicit.”</p>
<p>Seventeen years later, there have been many lower court decisions on obviousness, and this week the USPTO issued <a href="https://www.govinfo.gov/content/pkg/FR-2024-02-27/pdf/2024-03967.pdf" target="_blank" rel="noreferrer noopener">guidance to patent examiners</a> summarizing those decisions and instructing patent examiners on how they should make decisions on obviousness. Remember that the USPTO is merely summarizing conclusions of existing court decisions.  It’s not making new regulations or other new laws. Some of the highlights:</p>
<ul>
<li>In perhaps the most important statements in the guidance, the USPTO reiterates that “[t]he key to supporting any [obviousness] rejection is the clear articulation of the reasons(s) why the claimed invention would have been obvious. … Although this approach is flexible, a proper obviousness rejection still requires the [examiner] to provide adequate analysis based on evidentiary support.”  Hopefully, this will spur the USPTO to require examiners to actually come up with reasons why an invention is obvious, rather than simply making conclusory statements.</li>
</ul>
<p>Other highlights:</p>
<ul>
<li>In deciding whether a new invention made from a combination of old elements is obvious and hence unpatentable, the examiner must consider any evidence presented of what the imaginary ‘person having ordinary skill’ would know and consider the creativity of such a person.</li>
<li>In deciding whether the artificial ‘person having ordinary skill’ would combine two (or more) prior art references to find the invention obvious, the examiner may consider reasons to combine the references, such as market forces, design incentives, ‘interrelated teachings of multiple patents,’ and any need or problem known in the field.</li>
<li>The examiner can fill gaps in the prior art by asserting common sense and common knowledge of the artificial ‘persons having ordinary skill.’  However, “…‘common sense’ – whether to supply motivation to combine or a missing limitation – cannot  be used as a wholesale substitute for reasoned analysis and evidentiary support” for an obviousness rejection.</li>
</ul>
<p>— Robert Yarbrough, Esq.</p>The post <a href="https://garson-law.com/when-and-why-are-inventions-obvious/">When and Why are Inventions ‘Obvious’</a> first appeared on <a href="https://garson-law.com">Adam G. Garson, Esq. | Lipton, Weinberger & Husick</a>.]]></content:encoded>
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