Will magician David Copperfield make DC Comics disappear?

Attorney Tim Sitzmann of Minneapolis law firm Winthrop & Weinstine noticed that magician David Copperfield, well-known for making things like jet airplanes and Orient Express rail cars seemingly disappear into thin air, has recently filed an application for registration of several "DC" trademarks with the U.S.P.T.O.  Given that Mr. Copperfield's initials are "D" and "C" this probably isn't very surprising. 

 

 

But what is surprising is that there are a number of established companies who already hold registered trademarks for the "DC" initials, including entertainment behemoth DC Comics, which has held a registered mark for those letters since 1940.  The truly astonishing part of the story is the fact that the PTO did not refuse the Copperfield registration applications based on any likelihood of confusion.  TO the contrary, they have been accepted.

 

Did David Copperfield use slight of hand to pull the proverbial trademark rabbit out of the PTO's hat?  Perhaps.  Now, we'll have to see if he can work his magic to avoid opposition from DC Comics, DC Shoes, and a myriad of others with preexisting trademark registrations.

 

For Mr. Sitzmann's original article, check it out at Copperfield Trademark Magic.

 

 

Hell's Angels Are Dangerous.....Inside and Outside the Courtroom



 

Why are the Hell's Angels so protective of their intellectual property?  Because it's valuable, that's why.  See the full New York Times article here.

California Court Holds That "Sophisticated User" Defense Does Not Apply To An Unsophisticated Employee 

On November 27, 2013, the California Court of Appeal for the Second District in Pfeifer v. John Crane, Inc. [B232315] refused to extend the "sophisticated user" defense to unsophisticated employees.  The plaintiff in Pfeifer contracted mesotheliamo allegedly as a result of having been exposed to asbestos during the time he was in the Navy and working for the U.S. government.  Typically, the manufacturer of a hazardous product is not obligated to warn a user if the user knew or should have known of the risk of harm or danger associated with the product, i.e., is a "sophisticated user."  There is a split of authority in other jurisdictions as to whether the defense applies to an employee of a sophisticated intermediate user.  In some jurisdictions the employer's "sophistication" is imputed to its employees.  The court in Pfeifer held that in California the focus is on the plaintiff's knowledge, not his employer's level of sophistication.  Accordingly, the mere fact the employer is sophisticated is not enough as a matter of law to avoid liability under the defense.

A complete copy of the Pfeifer decision can be found at courts.ca.gov.

By Todd A. Picker

California Judge Derails Bullet Train

Yesterday a Sacramento Superior Court judge ruled that California's High-Speed Rail Authority could not access funds to start construction on the Los Angeles to San Francisco bullet train because it had failed to comply with the law approved by voters in 2008.  The 2008 law required state authorities to have in place a valid financing plan before tapping more bond money.  Under the law, among other things the state needed to present a funding plan that is self-sustaining, which it has thus far completely failed to do.

Apparently pols in Sacramento assumed that if they started construction taxpayers would have to pay to finish it even though the project had "jumped" the track laid down by voters. Fortunately the court was not willing to play along.

Additional information about this ruling can be found at http://fw.to/uBdbvvj.

By Todd A. Picker, Senior Counsel

Can you copyright a building? The answer may surprise you.

By DAVID CHRISTOPHER BAKER, ESQ.

A November 8, 2013 decision by the United States Circuit Court of Appeals for the Fifth Circuit affirmed a $3.2 million damages award for copyright infringement in favor of an architectural firm against a home-building firm in which a jury determined that Design Homes, L.P had infringed the copyrighted architectural drawings of Kipp Flores Architects, L.L.C.

 

For more on the ruling, check out attorney Harriet Thomas Ivy’s article on JDSupra Law News at http://www.jdsupra.com/legalnews/builder-beware-does-your-project-infrin-66896/?utm_source=LU_Emails.

Mr. Baker is head of the Intellectual Property Law Department and a partner at Hart, King & Coldren, a full service law firm located in Orange County, California.  If you would like to contact him, send an e-mail to dbaker@hkclaw.com or call him at (714) 432-8700.

Lance Armstrong And A Sure Fire Way To Avoid A Deposition--Settle.  What About The Confidentiality Of His Settlement Agreement?

In the wake of admitting to doping and being stripped of his Tour de France titles, among other things, Lance Armstrong is now a defendant in multiple lawsuits.  Hardly a surprise.  One such lawsuit filed by Acceptance Insurance in Texas just settled.  Acceptance Insurance was seeking to recover $3.0 million paid to Armstrong in connection with some of his Tour de France "triumphs."  Details about the settlement agreement were not disclosed.  The terms of the agreement and information exchanged during the lawsuit may be (and probably are) subject to a confidentiality agreement.  The case settled one day before Armstrong was scheduled to be deposed.  Needless to say Armstrong and his lawyers concluded that testifying under oath and confessing to Oprah are two very different things.

The confidentiality of private settlement agreements raises some interesting issues.   In any civil case both sides may have good reasons for not wanting the terms of a settlement or information exchanged during discovery disclosed to third parties.  The use of confidentiality provisions in settlement agreements is common.  Public policy strongly favors encouraging settlement of civil cases.  If keeping the terms of a deal a secret helps settle a case, and it often does, then there is a solid basis for a court to respect the litigants desire for privacy.

Which brings us back to Armstrong.  Can someone in his position, i.e., involved in multiple lawsuits and whose reasons for wanting confidentiality may not be compelling, keep information about the Acceptance Insurance case from other litigants who are suing him and in so doing potentially impede the progress of those litigants' lawsuits?  In some jurisdictions, like Texas where Acceptance Insurance filed its lawsuit, the answer is no even if he had a good reason for wanting privacy.  See Newby v. Enron Corp., 623 F.Supp.2d 798 (U.S. Dist. Ct. Tex. 2009).   In other jurisdictions a balancing test is applied to resolve the issue. See Hinshaw v. Winkler, Draa, Marsh & Still v. Superior Court, 51 Cal.App.4th 233 (1996).  In those jurisdictions the answer is maybe.   The confidentiality of information about the settlement and lawsuit would turn on the needs of the party seeking disclosure, the relevance and sensitivity of the information, and the settling parties' privacy rights.  In Armstrong's case we suspect that a court using a balancing test is not going to do him any favors.

For more information about the Acceptance Insurance lawsuit, go to USATODAY.com: http://usat.ly/188GTLH  

Todd A. Picker, Senior Counsel.

U.S. Government Seeks Comments on Copyright Policy

By DAVID CHRISTOPHER BAKER, ESQ.

The U.S. Department of Commerce has announced that its Internet Policy Task Force (IPTF) will hold a series of public meetings to discuss copyright policy issues raised in a recently released green paper, “Copyright Policy, Creativity, and Innovation in the Digital Economy” (“Copyright Policy Green Paper”).  The IPTF issued its proposed digital copyright policy in July 2013 and is now soliciting public comments as part of its efforts to continue a dialogue on how to improve the current copyright framework for stakeholders, consumers, and national economic goals.

Specifically in the Copyright Policy Green Paper, the IPTF proposes five copyright policy issues to address.  The five issues include:

(1) establishing a multi-stakeholder dialogue on improving the operation of the notice and takedown system for removing infringing content from the Internet under the Digital Millennium Copyright Act (DMCA);

(2) the legal framework for the creation of remixes;

(3) the relevance and scope of the first sale doctrine in the digital environment;

(4) the application of statutory damages in the contexts of individual file sharers and of secondary liability for large-scale infringement; and

(5) the appropriate role for the government, if any, to help improve the online licensing environment, including access to comprehensive databases of rights information.

Then-Secretary of Commerce Gary Locke launched the IPTF in April 2010, to conduct a comprehensive review of privacy policy, copyright, global free flow of information, cybersecurity, and their respective relationships to innovation in the Internet economy.

The next public meeting will be held on December 12, 2013 from 8:30 a.m. to 5:30 p.m. ET at the USPTO headquarters in Alexandria, VA and the period for post-meeting comments has been extended.  For further information regarding the meeting, please contact Hollis Robinson (hollis.robinson@uspto.gov) or Ben Golant (Benjamin.golant@uspto.gov) in the Office of Policy and External Affairs, or call (571) 272-9300.

And, if you would like a digital copy of the Copyright Policy Green paper, please contact Mr. Baker.

Mr. Baker is head of the Intellectual Property Law Department and a partner at Hart, King & Coldren, a full service law firm located in Orange County, California.  If you would like to contact him, send an e-mail to dbaker@hkclaw.com or call him at (714) 432-8700.