LegalMatch: Intellectual Property

Nintendo Co. Faces Ban on WaveBird, Wii Classic Controllers.

Videogame giant Nintendo Co. faces a ban on some of its controllers following a losing battle against patent infringement.

With a $21 million patent infringement case filed against it, Nintendo may lose its right to produce WaveBird, Wii Classic, and Nintendo GameCube controllers—a major hit against two of its most successful console gaming systems. Challenger Anascape, a controller manufacturer from Tyler,Texas, claims that Nintendo infringed on its protected patents of a controller that handles six types of movement inputs at once. Nintendo continues to deny the claim, and resists a judicial command to pay a bond that would allow continued production.

If Nintendo refuses to pay the bond set by the court, Anascape may win a permanent injunction—a stop on all of Nintendo’s production of these controllers. The judge is scheduled to issue his ban order tomorrow, July 23rd.

How Blogging Can Lead to Legal Trouble.

When you start a blog online, what do you really sign on for?

You click through your client’s terms of service, install whatever proprietary software they want on your desktop, you pay your dues for ad-free space, and then you finally start to write. And because you’re writing (and publishing) in the United States, you’re granted the same First Amendment rights that have protected newspapers, magazines, and print publications for centuries. You get free speech!

But even free speech has its limits, and it’s important to know what you can (and can’t!) say in your corner of the web—and what you’re liable for as a blogger.

 

The Wrong Side of Blogging Laws

A few examples go a long way, so here are a few bloggers who found themselves facing lawsuits, subpoenas, and (in one case) prison.

1. Perez Hilton: The infamous gossip blogger was served with a defamation lawsuit after alleging that DJ Samantha Ronson was the owner of cocaine found in Lindsay Lohan’s car.
2. Kareem Amer: While not a U.S. blogger, the story of Kareem Amer demonstrates some of the serious risks of unprotected speech. He is currently serving a four-year prison sentence in Alexandria for speaking out against the President and Al Azhar, a religious university.
3. PZ Meyers: Sued in 2007 for writing a negative review of LifeCode: The Theory of Biological Self Organization. The book’s author, Stuart Pivar, charged Meyers with libel after the blogger called him a “classic crackpot.”
4. Lucas Lechuga: This real estate blogger was sued for $25M and lost his job after the developer of Opera Tower filed a defamation claim. Lechuga had made the negative post about the Opera Tower condo development prior to his employment with EMW, the company who fired him.
5. Rick Frenkel: Still heating the presses is the story of Rick Frenkel, the Cisco lawyer who anonymously maintained the “Patent Troll Tracker” blog. He is now being sued by two East Texas patent attorneys who will bring forth charges of defamation.

 

Defamation, Slander, and Libel—Oh My!

While “Defamation!” seems to be the first cry of those wronged by bloggers, there are other speed bumps to watch for when building your blog. Blogging law violations can manifest in many ways, including: 

• Copyright infringement,
• Trademark infringement,
• Trade secrets violation,
• Defamation (libel),
• Right of Privacy, and
• Publication of private information.

Internet blogs and the law are inseparable. This means that your words must be your own, that you should cite borrowed information (especially if you make a profit off your blog or its ads), and that making false, personal attacks on people is going to get you into hot water faster than you can hit “Submit.” It’s probably also a really bad idea to publish the phone number of that girl who stood you up last Friday and encourage your readers to harass her.

Even if she did break your heart.

Creative Commons and Artistic Copyright.

Black Star Rising put up an insightful article today about the legal limitations of the popular “Creative Commons” copyright, arguing that for-profit organizations are the only true beneficiaries of this goodwill-and-sharing copyright option.

Creative Commons is a system that is intended to encourage the sharing and cross-promotion of photos and other artwork, and it does this via a very permissive copyright license. While it may have been designed to make sharing easier for artists (bypassing the necessity of getting copyright permission for every image posted to blogs, art forums, and other community sites), Black Star Rising claims that Creative Commons is being increasingly abused by for-profit companies who want free images:

“The real issue is commercial use -- and this is where we get to who really benefits, at least over the long term. Before Creative Commons, a corporation or ad agency that wanted to use your photo would have to contact you or your photo agency for permission to use it. You could negotiate a price based on the particular use, making sure you got a fair deal.

Through CC, hundreds of thousands -- if not millions -- of photographers have thrown this right away forever.”

But for artists who aren’t familiar with copyright laws, Creative Commons is often the only visible option for individuals using popular photo-sharing sites like Flickr. This kind of limited visibility is exactly why it’s especially important for artists—from amateur to auteur—to learn how they can best protect their work.

 

Obtaining a copyright license isn't as easy as mailing yourself a sealed, stamped copy of your work—this "poor man's copyright" won't actually protect you at all. In any case, it’s best to choose a copyright option that gives you full protection over your work. If it’s your first time establishing a copyright for your work, it may be a good idea to speak with an exclusive rights lawyer and make sure that everything is airtight. From there, you can do as Black Star Rising suggests and instruct would-be users to contact you for usage permission.

For more specific legal information about artwork and artistic copyrighting, please take a look at our law library article, “Protecting My Artwork.”

 

 

By Kate Beall

Toyota Bares Teeth Over "Lexus" Trademark Infringement

Toyota chose an unusual legal adversary when it wrote to EBoys Studio, a gay adult films producer based in Switzerland. The letter asks the company to desist from promoting one of its stars who goes by the name of “Lexus.” Toyota claims that “by using Lexus in connection with adult films, EBoys Studio is in violation of § 43 (c) of the Federal Trademark Act, 15 U.S.C. § 1125(c) and tarnishes Toyota’s business reputation” [1]. The gay star argues that his name is merely a tribute to the Greek god, Lexus.

If you’re having trouble remembering what “Lexus” was the god of, you’re not the only one. There is no “Lexus” in the Greek lexicon.  Hence the Lexus trademark infringement case.

 

Greek or not, Lexus (the adult actor) is definitely walking on thin legal ice. The Lexus trademark, like many others, is protected from both infringement and dilution, and dilution is the issue in this case. Dilution occurs when well-known and established trademarks (like “Lexus”) are tarnished by the usage of those trademarks in an unrelated way—often in a different line of business. So when Lexus the Olympian decided to bring a Toyota trademark into the adult entertainment arena and Toyota decided it didn’t like the new affiliation, dilution was the card that got pulled.

Of course, if I were in Lex’s shoes, I’d be reading up on my defenses to trademark infringement—and kicking myself for not buying that pretty illustrated copy of D'Aulaires Book of Greek Myths.

by Kate Beall

Chef Develops a Taste for Litigation.

A recent story from the New York Times (“Chef Sues Over Intellectual Property”), illustrates just how far intellectual property law is beginning to extend.

While we might think of intellectual property as being largely tied to pirated software downloads and academic writing (and a widespread campaign against plagiarism), property laws actually move through spheres that appear to have nothing to do with them.

And apparently, the restaurant business is the latest hotbed for intellectual property litigation.

Rebecca Charles, founder of the New-York-based “Pearl Oyster Bar,” claims that Ed McFarland infringed on her intellectual property when he “copied” her “white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and” (and this was the coup de grâce) “the dressing on the Caesar salad.” McFarland was her former sous-chef, and had served under her guidance for six years.

Even with all of these facts in place, is it really feasible to defend these details under intellectual property law?

“In recent years, a handful of chefs and restaurateurs have invoked intellectual property concepts, including trademarks, patents and trade dress – the distinctive look and feel of a business – to defend their restaurants, their techniques and even their recipes,” reads the New York Times article, “but most have stopped short of a courtroom.”

 

Let’s take a step back and examine these claims.

How do trademarks, patents, and trade dress interface with the small restaurant business? Aren’t these normally reserved for more “serious” corporations?

Well, with small businesses, trade dress law is as good a place as any to start.

Trade dress, unlike trademarks, is a distinctive, nonfunctional feature that distinguishes a merchant’s or manufacturer’s goods or services from those of another. The bovine-inspired packaging that marks Gateway’s products and stores?  The maroon-and-gold color scheme that makes McDonald’s immediately recognizable as McDonald’s? Both of these are excellent examples of a defensible “trade dress.” But do a marble bar and gray paint really qualify as “trade dress” items?

It’s difficult to say, but it’s also unlikely. While the two rival restaurants provide similar service (right down to the Caesar salad, apparently), Charles would be pressed to build a case on some minor décor. Unless there is a likelihood of confusion between the two eateries, the trade dress declaration may not stand.

 

The Caesar dressing, on the other hand, may yet bear some legal fruit.

If Charles can prove that she had an implied confidential relationship with her sous-chef (and prove that he broke that established confidentiality), she could sue for damages even without a patent. And her words certainly seem to support that kind of relationship: “When I taught him, I said, ‘You will never make this anywhere else.’”

What’s more, if Charles can peg her Caesar recipe as a bona-fide trade secret (something that has independent economic value as a result of its secrecy), she may be able to enlist a trade secret lawyer and burn him for filching her (legally) secret recipes.

So much for a “simple” meal!

by Kate Beall