We've been busy

There is a lot happening in the intellecutal property world.

First off, I have been making lots of appearances elsewhere.

• View an interview I did with New York Business TV on dead trademarks (bring them back to life). Just click on my picture on the right menu.
• You can find me quoted on a new ESPN article by Paul Lukas on sports uniforms.
• I also have two articles at Communicate Value, a blog that my friend Christine Gallagher writes on new media and businesses. There is a trademark basics article and a copyright basics article.

You can now find me on Twitter. I post two or three intellectual property thoughts a day. Click here to follow me on Twitter.

You can still become a fan of the Law Firm of Anthony Verna on Facebook and get extra updates.

The companies founded by Jimi Hendrix' heirs (his father and sister) are suing other companies for trademark infringment that sells other Jimi Hendrix-branded merchandise. In fact, one of the defendants was enjoined from using "Hendrix Electric Vodka" in a previous lawsuit. I find this suit fascinating, because it is a mix of different areas of law. One one hand, you have the trademark interests of the company that doles out the intellectual property of a celebrity who has been dead for 40 years and has not been creating anything new, but on the other hand you have a company creating its own trademarks that resemble another company's trademarks.

There are a couple of very interesting and different copyright infringement lawsuits. The famous one now is about the picture of President Barack Obama above the word "Hope" being modeled after an associated press picture. The artist answers that the nature of the use - painting the picture and placing the word below the face and using it in a political sense - is transformative enough to make it a fair use of the original photograph. It's a difficult argument in my opinion, because Fair Use is never an easy argument to make. It is a topic that has appeared here a few different times, because the guidlines of how much change is needed to transform a copyrighted work into a compltely new, original work is really not known. Here, the artwork is much more stylized than the photograph - the colors are completely different, and the contours of the face are brought out along with a red, white and blue scheme for the political arena. It's certainly not a photograph, but is it transformative?

Also, a local Brooklyn band is looking towards French President Nicolas Sarkozy for possible copyright violations - such as not paying enough money for use of a song from the band on Sarkozy's political party's website.

The Ford Futura. Wait, What?

The Lincoln Futura: Car enthusiasts will remember this concept car from the 1950s.  Television enthusiasts will remember that it was the basis for the Batmobile from the Adam West "Batman" series.  

In 2005, Ford (owner of Lincoln) wanted to name a new car line the Futura.  The problem?  Ford (and all subsidiaries, such as Lincoln) hadn't used the Futura name in years (50 years, to be exact).  

Pep Boys makes and sells Futura-brand tires.  The problem now?  If Ford and Pep Boys - which are both in the automotive industry - would that not cause consumer confusion?   Would Futura tires be made specifically for the Futura car?  (No.  But we know that there would be consumers who would think so.)

There are over 250 registered "futura" trademarks in the USPTO database.  So, in other industries, the mark is not an issue.

The limit for reclaiming a "dead" trademark (one that the company no longer is using) is three years.  Pep Boys registered the "Futura" mark for tires in 1990.  This means that even though one is tires and one is automobiles, because their industries are similar and the consumers are similar and the goods would appear in similar (even if not the same) sales channels, the marks conflicted.  

Ford, unable to use "Futura," went with "Fusion."  Anyone who is extremely knowledgeable about cars or is European (or, like me, has European friends) knows that Ford didn't really help itself because the Fusion in the Americas is not the same car as the Fusion sold in Europe.  That's a problem, though, for a different blog.