How you reference an existing brand will dictate whether you become liable for trademark infringement or public disparagement of the brand, but there are carve-outs in trademark law that allow you to fairly reference an existing trademark without being liable for infringement. Yes you heard me right; trademark fair use exists!
Read MoreLawyers tend to be conservative creatures. We don’t like loose ends or vagueness, so we will always tell you to get permission, even if using the quote wouldn’t necessarily open you to liability. After all, why run the risk of guessing and then getting sued when you can simply ask and get a straightforward answer? It’s always easier to ask permission than to beg forgiveness later.
Read MoreIn order to be granted trademark registration by the U.S. Patent and Trademark Office, the mark you’re seeking to protect must be distinctive. The more generic or common your mark is, the less likely it is to be granted protection. The USPTO reviews proposed marks on a sliding scale of descriptiveness in order to determine whether they should approve registration.
Read MoreHow you reference an existing brand will dictate whether you become liable for trademark infringement or public disparagement of the brand, but there are carve-outs in trademark law that allow you to fairly reference an existing trademark without being liable for infringement. Yes you heard me right; trademark fair use exists!
Read MoreA few weeks ago, Taylor Swift (yes, her again) filed for trademark protection (again) for various catchphrases related to her latest album, 1989, such as “This Sick Beat” and “Swiftmas.” Even though musicians do this all the time for merchandising purposes, for some reason it’s particularly newsworthy when Swift does it. But what grabbed my attention this time wasn’t the inexplicable backlash she got (if Ed Sheeran had done it, would people have been so quick to judge?), but the factually inaccurate headlines that went along with it.
Read MoreDo you remember the time Donald Trump played “It’s The End of the World as We Know It” at a campaign rally and REM told him not to use their music "for your moronic charade of a campaign?" Or that time John McCain used “Running on Empty” in a TV ad bashing Obama and Jackson Browne sued him? Or that time Rand Paul used “Tom Sawyer” during his Senate run and Rush said that it was obvious Paul “hates women and brown people?"* It seems like every time there’s an election, you can't swing a dead cat without hitting a band upset at a politician for using its music. And with a year left before the general election, it’ll happen a few more times at least.
Read MoreToho Studios, the owner and creator of Godzilla, is suing Voltage Pictures over a monster movie it is producing starring Anne Hathaway. The film, entitled "Colossal," will feature Hathaway as a woman whose mind is connected to a giant lizard that is destroying Tokyo. Haha what??!! You kind of have to respect the audacity to run with an idea that sounds like it came from someone's drug-induced fever dream.
Read MoreUnlike copyright registration, registering a trademark is supposed to be expensive and arduous because they don’t want just anyone doing it. A registered mark is a legitimate business asset, and the more profitable your business becomes, the more profitable your trademark becomes. You have to think of registration as a capital investment… not that dissimilar from buying equipment, inventory, or office space.
Read MoreThe past few months have seen a lot of really intriguing legal activity from Swift’s people. First she took her music down from Spotify (by far the most popular streaming music service), meaning the only way to get her new album 1989 is to pay for it directly. A few weeks ago she filed for trademark protection of the phrase “this sick beat” because apparently she thinks there’s a lot of money to be made from it. And just last month she started issuing takedown notices to fans who were selling knock-off Swift merch on Etsy.
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2014 has been a big year for me personally. As many of you know, Steph and I were happy to welcome our first child last month, a baby girl named Hannah. We also bought our first house back in June, which is what sparked today’s blog post.
With more wall space to cover than our two previous (and oh so tiny) apartments combined, Steph and I decided to frame a bunch of pictures and hang them up. We found Printstagram, a popular online service that - yup, you guessed it - allows you to upload your Instagram photos and print them on high quality photo paper. We gave it a shot last week and really fell for it.
Our timing was odd because the day after we placed our order, I got this email from Social Print Studio, the company that runs Printstagram.
The competition idea is a really clever way to deal with what must be a devastating legal blow. Starting last year, Instagram (and parent company, Facebook) began cracking down on apps and services that used any combination of “insta” or “gram” in their names in order to give a wide berth to Instagram’s valuable trademark. This is a switch from the company’s original policy which had encouraged derivative apps to use either word (but never both). But now that it’s a multi-billion dollar company, the MO has changed. Money will do that I guess.
Although to be honest, as tough as this must be for the Printstagram people, Instagram kind of has an argument. A central tenet of The Lanham Act (the law that governs trademark protection and infringement issues) is that similar marks that are "likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association” may be liable for trademark infringement. That is, if the general public could reasonably assume that Printstagram was actually affiliated with Instagram, that could cause confusion in the marketplace and, potentially, drive revenues away from Instagram. That would be enough to rise to a trademark infringement claim.
I’d be interested to hear the argument Printstagram could’ve mounted in its defense. However, considering the similarity between the names and the nature of Printstagram’s service, they probably would have lost... and they knew it, which is why they’re changing their name.
Anyway, kudos to them for turning lemons into lemonade. They got hit hard but decided to roll with it in a fun way, rather than get bogged down in messy litigation. The email lists several strict but hilarious guidelines for the contest, such as:
The winning choice will end up with a bunch of free printing, so I might give the contest a shot. I still have some wall space available.
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