Tag: trademark law

Will The Flying Squirrel Lose Her Title?

By Will Bartholomew

Gymnast Gabby Douglas captivated the nation during this summer’s Olympic Games as a member of the American team that won the all-around gold medal, and by becoming the first woman of color — from any country — to win gold in the individual all-around competition. She is known as “The Flying Squirrel,” a moniker that will likely pay dividends down the road by giving her a distinctive brand to lend to everything from causes to merchandise. Before this can happen, though, Ms. Douglas will have to vault at least one more obstacle.

On August 6, Fordham University business student A.J. Rotonde filed to trademark the term “The Flying Squirrel” with the U.S. Patent and Trademark Office (USPTO), hoping to cash in by selling t-shirts and other athletic apparel featuring the phrase. Ms. Douglas has not filed her own application to trademark the term.

Does Mr. Rotonde’s filing of the trademark claim mean that he, and not Ms. Douglas, will reap the financial reward from Ms. Douglas’s “Flying Squirrel” fame?  The media didn’t say. We investigate.



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Variety’s Logo “Vandalized”

By Matthew Catania and Dawn L. Mikulastik

Contrary to popular opinion, settlement agreements don’t always end litigation. Exhibit A: Reed Elsevier Inc., Variety’s parent company, is suing the Californian punk band, The Vandals, despite the parties’ settlement in 2004. The dispute began when the media conglomerate took umbrage at The Vandals invoking its trademark Variety logo on the cover of its “Hollywood Potato Chip” album. (The title is a vulgar reference to dried semen left on a Hollywood casting couch) The Vandals settled out of court, agreeing to pay $2,500.00 and to eradicate all traces of the offending cover art. But now Reed Elsevier is suing the band again, this time because it believes the terms of the settlement have been breached.

In December 2009, Reed Elsevier claims it discovered the prohibited image on some websites that it alleges were controlled by the band. In February, the newsgroup’s lawyers informed the band that it was in breach and owed $50,000.00 in liquidated damages and $25,000.00 lawyers’ fees as mandated by the settlement. The band was also asked to sign an amended settlement agreement without a provision for a “cure period” and liquidated damages of $100,000.00 for the next violation.

True to its punk rock ethos, The Vandals refused to this lying down. Statements to the press and fans by Joe Escalante, the Vandals’ bassist and its attorney, have stressed that the original album art is protected by the First Amendment as parody.  And while that may be true, it’s actually irrelevant to the case at hand.  The media is mischaracterizing the current lawsuit as a free speech issue. Because the band signed the settlement agreement rather than litigating the underlying issue six years ago, only contractual issues arising from that document are up for dispute. (more…)



Saber Rattling and the iPad: Truth v. Media Myth About the “iPad” Trademark

By Ted Wills

Used under Creative Commons license from Flickr user,

Within hours of the unveiling of the iPad, Apple’s newest electronic device, word of a possible Apple misstep hit news sites. In addition to the new device’s moniker being the butt of jokes, major media outlets gleefully reported what appeared to be a serious trademark problem for Apple’s nascent iPad brand. The Japanese company Fujtisu already has a device called an iPad. Fujitsu has been seeking a trademark registration for its iPad since 2003. Fujitsu announced that “it is aware of . . . . the possible infringement on our trademark.” Fujitsu’s trademark lawyer, Edward Pennington of Hanify & King, described Apple’s position as “awkward.”

But a closer look at trademark law and Fujitsu and Apple’s legal filings cast doubt on Mr. Pennington’s assessment of Apple’s position and may disappoint the journalists who smell blood in the water. Dan Hunter, an intellectual property professor at New York Law School, believes that Apple will have little difficulty in defending its trademark position for iPad. “Fujitsu will probably do some saber rattling and Apple will do some saber rattling back. But in the end, Apple is in a good position to defend against any infringement claims from Fujitsu.”



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Who Owns “Who Dat”?

By Chris Cotter

This Sunday, the New Orleans Saints and the Indianapolis Colts are set to do battle for the National Football League title. But that’s just the battle being waged on the field. Off the field, it has been the NFL vs. clothing manufacturers, fighting for the title to trademark rights in Saints fans’ infamous battle cry, “Who Dat?”

With the specter of the biggest game of the season looming, the NFL had done anything but endear itself to Saints fans. Asserting its alleged trademark ownership, the league had sent numerous cease and desist letters to vendors of Saints gear selling “who dat” merchandise, which left many in the press wondering why the NFL was suddenly and aggressively protecting “its” trademark right to the phrase.  But history instructs us that the NFL rabidly attempts to trademark anything it believes has even a slight association with the league.

When it comes to trademarks, it’s all about identification. In order for anyone to successfully register a trademark, the mark must “[identify] and [distinguish] the source of the good of one party from those of others.” So the question of who owns the “Who Dat” trademark really turns on what people associate the phrase with.



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