Build Your Own Lawsuit With A "Lawgo" Set

I only just learned of this (nearly one year old) article at Legal Cheek, but I thought it was worth sharing. Legal Cheek reports:

A Canadian law firm has taken the fun and exciting world of Lego and made it more tedious — by producing a civil litigation version of the hit toy. 

In what appears to be a marketing stunt — or is it a new line of business? — Jensen Shawa Solomon Duguid Hawkes LPP, or JSS Barristers for short, has created a Lego-themed “Litigation Action Pack” called ‘Lawgo’ (pictured above). 

The boutique civil litigation firm, based in the Canadian city of Calgary, has even produced a toy barrister with accompanying robes and a court bench. The figures are recommended for those between 18 and 99 years of age.

A picture of the Lawgo set is available at Legal Cheek's website.

Interestingly, the Lawgo set is recommended for people between 18-99 years old, suggesting that the toy is meant as a gag gift for lawyers or those about to practice law. This is a shame, since it would be nice to see younger children inspired to join a profession that is even more admirable than the Jedi Order.

Legal Cheek hopes that the law firm marketing the Lawgo set obtained permission from Lego, as otherwise the Lawgo set will run into trademark problems, particularly as a result of its logo. On the other hand, even if the firm did not obtain permission, Lego may be too afraid to sue a firm that is so obsessed with the law that they created such a product in the first place. Since I could not locate news of any lawsuits against the firm marketing the Lawgo set in the year since the product was released, I will assume that one of the theories above is true. On the other hand, I could not find any links to purchase Lawgos on the firm's website, so maybe things did not go as smoothly as hoped.

Finally, while I generally approve of products that make the practice of law more approachable or even whimsical, I am also concerned that the Lawgo product could increase negative attitudes towards lawyers. In particular, there are few feelings that are more unpleasant than stepping on a Lego (see, e.g.: this), and I worry that stepping on a similar law-themed object may compound negative feelings toward attorneys. Hopefully, people unfortunate enough to step on a Lawgo will keep their negative feelings confined to the universe of small plastic objects rather than letting their feelings spill over to the legal community.

"Monkey Selfie" Photo May Venture Into Trademark Territory

During the summer of 2014, everybody on the Internet briefly became a copyright expert, scholar, or commentator as people debated the copyright status of this photo taken by a monkey:

The copyright dispute over this photo revolved around whether the photographer whose camera the monkey stole to take the picture owned the copyright for the photo. The U.S. Copyright Office concluded that the picture could not be copyrighted since it was taken by the monkey, by including a notably-specific hypothetical scenario on page 8 of this vast report.

While the U.S. Copyright Office's say may put an end to the copyright speculation, Craig Whitney of the Socially Aware Blog notes that this picture may end up making its way back to intellectual property debates in the trademark arena.

Whitney highlights this application for trademark status which features a picture that looks strangely similar to the monkey selfie photo. Whitney writes:

A company identified as Saban Capital Group Inc., based out of the British Virgin Islands, has filed an application with the U.S. Patent and Trademark Office to register a trademark in the image of a monkey for use on various types of apparel—including wedding gowns (one can only imagine the market for such an item). The company claims to have been using this image in commerce since August 16, 2010—which we understand is prior to the date that the Monkey Selfie was taken. Nevertheless, the image in question bears a striking resemblance to a certain photograph of a fetching Indonesian primate. But given that no one owns a copyright in the Monkey Selfie, it is unclear whether the Trademark Office or anyone else will seek to prevent a drawing based on the image—if that is what this is—from being registered as a trademark for use on certain apparel.

The trademark application is still in the early stages, and I don't know nearly enough about that area of law to give an informed opinion on the application's merits or whether it may be challenged. But if any law students are reading this post, it might be a good idea to flag this story just in case Intellectual Property professors are considering writing exams on some of the stranger areas of copyright and trademark law.

Math Nerds Beware: "π." Has Been Trademarked

Kevin Underhill writes at Lowering The Bar about Paul Ingrisano's recent trademark for the symbol for pi, followed by a period. The information on the trademark is available here. The text of the trademarked mark is:

The mark consists of the pi mathematical symbol followed by a period.

Even though the trademarked symbol is π followed by a period, Wired reports that Ronald Millet, the attorney for Ingrisano, has demanded that the website, Zazzle remove all merchandise containing the symbol π, whether or not the symbol is followed by a period:

When Ingrisano discovered that California-based print-on-demand outlet Zazzle offered an array of clothing items that feature pi–which represents the ratio of the diameter of a circle to its circumference–he had attorney Ronald Millet send the company a strongly worded cease-and-desist letter this month demanding their removal. 

. . . 

Attorney Millet defends the cease-and-desist letter. He says that to his knowledge none of the designs sold through Zazzle included the exact trademark π.—pi followed by a period—but some of them were confusingly similar to his client’s design. 

“Some clearly have a pi sign and look similar enough that folks out there might confuse it with products that my client also sells,” he says. “I saw the back and forth on the blogs of some of the sellers on Zazzle expressing their disappointment. I can see that as an understandable reaction, from a personal standpoint.”

At least Millet is sympathetic towards those who are reacting to his "missing the point of trademark law" (those are Professor Mark Lemley's words, not mine). Underhill has some more critical commentary.

Here, Ingrisano presumably added the period in the first place so the Patent & Trademark Office would be less likely to reject it as too "generic" to register. (See, e.g., USPTO, "Basic Facts About Trademarks.") If so, then he shouldn't be able to turn around and claim that a pi symbol without the period might confuse consumers into thinking an item is one of his products. And since his attorney has admitted that as far as they know, there are no products actually bearing a "π." symbol being sold anywhere on Zazzle ... well, it almost seems like he shouldn't have sent the letter in the first place, doesn't it?

I don't have much more to add, other than providing the full demand letter to Zazzle below. I think that the letter speaks for itself, so I won't criticize Ingrisano's pointless abuse of trademark law any further.

Zazzle Pi Trademark Letter by kpoulsen

Dumb Starbucks and the Limits of Parody

Forbes reports:

A store opened in the Los Angeles neighborhood of Los Feliz this weekend calling itself “Starbucks ,” only with the word “dumb” in front of the name. “Dumb Starbucks” had a Dumb Starbucks logo, a Dumb Starbucks menu, even Dumb Starbucks cups (in Dumb Grande, Dumb Venti and Dumb Tall).
. . .

As the FAQ reads: “Although we are a fully functioning coffee shop, for legal reasons Dumb Starbusks needs to be categorize [sic] as a work of parody art. So, in the eyes of the law, our “coffee shop” is actually an art gallery and the “coffee” you’re buying is considered the art. But that’s for our lawyers to worry about. All you need to do is enjoy our delicious coffee!”

 The store has a Twitter account, where it shared a picture of its menu:

Enjoy our full menu of coffees and cold drinks pic.twitter.com/wPacrEEH9k
— Dumb Starbucks (@dumbstarbucks) February 8, 2014

Nobody seems to know where Dumb Starbucks came from, or whether it will last.

While Dumb Starbucks claims that can use Starbucks's logo and name because Dumb Starbucks is a parody, I think that they will have a difficult time arguing this in court. In Campbell v. Acuff-Rose Music, Inc., the Supreme Court held that a work of parody may be protected from lawsuits because it can be a "fair use" of the copyrighted work. The Court pointed out that it is dangerous for fair use evaluations to rely on judges' ability to determine when a parody is in good or bad taste, limiting the "threshold question" of whether a parody work is protected by fair use to "whether a parodic character may reasonably be perceived." But the Court added a footnote immediately afterwards noting:

The only further judgment, indeed, that a court may pass on a work goes to an assessment of whether the parodic element is slight or great, and the copying small or extensive in relation to the parodic element, for a work with slight parodic element and extensive copying will be more likely to merely “supersede the objects” of the original.

All that Dumb Starbucks seems to be doing is putting the word "dumb" in front of Starbucks's name and menu items. Beyond "Dumb," there seems to be no departure from Starbucks's original name, menu items, and logo. There is no other indication that Dumb Starbucks is criticizing Starbucks or its products.

While the Court in Campbell held that the parody song was protected fair use, the Court made sure to point out that "[t]his is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free." Here, Dumb Starbucks seems to be attempting to do just that.

And given Starbucks's litigious nature, I doubt that Dumb Starbucks will be around for very long.

UPDATE

Some further research indicates that the legal analysis here might be a bit more complicated, since Campbell was a copyright case, and Starbucks seems to be threatening trademark action against Dumb Starbucks. I am not an expert in intellectual property law, and I am certainly less of an expert when it comes to trademark. The central question in trademark cases is whether consumers will likely be confused that the infringing use of a trademark is being endorsed by or is associated with the trademark holder. That being said, it seems that Dumb Starbucks will still have a difficult time arguing trademark claims, since it is difficult to see how Dumb Starbucks's use of Starbucks's trademarks describes Dumb Starbucks's own products or how the use of the trademarks is part of an overall critique of Starbucks. And Dumb Starbucks's pervasive use of Starbucks's various trademarks will make it difficult for Dumb Starbucks to show that they are using only as much of Starbucks's trademarks as is reasonably necessary to identify Starbucks as the target of the parody.

King.com, Maker of "Candy Crush Saga," Seeks to Trademark "Candy"

Bloomberg Law reports:

King.com Ltd., the maker of “Candy Crush Saga,” the game played on Facebook Inc.’s social media pages and Apple Inc. products, wants to register “candy” as a trademark.

According to the database of the U.S. Patent and Trademark Office, the Malta-based company said it will use the mark with products including underpants, earmuffs, swimsuits, party planning, gambling services and amusement parks, as well as electronic-game services. The company said in its application that it began using the mark in commerce in February 2013.

The Los Angeles Times reports that this move has upset some people, including several game developers who have been informed that their games infringe on King.com's prospective trademark. Ars Technica quotes Mark Methenitis, chair of the Video Game Committee at the American Bar Association, who says that a "small army" of people will likely contest the registration of King.com's trademark.

Ars Technica elaborates that "candy" has already been used many times in the gaming context:

Indeed, a cursory search turns up roughly a thousand prior games that use the term "candy" in their title, as you'd expect for such a common word. That list includes PC shoot-em-up Bullet Candy, children's Game Boy Color title Tiny Toon Adventures: Dizzy's Candy Quest, and Candyz (a match-three puzzle game that bears more than a slight resemblance to Candy Crush). And that doesn't even get into board games like Candyland or gaming websites like Candystand.com. All of these works and properties would seem to have just as much claim on a word like "candy" in a video game context, if not more.

It will be interesting to see how many parties challenge King.com's application in the days to come. Given the common, previous use of the term in the game-title context and the large number of potential challengers, King.com might end up having a tough time registering its trademark.