Blackletter

Tiger Lily Ventures, a British company was seeking to name their whiskey Lehman Brothers. The trademark lapsed in the U.S. Register. The Barclays failed to renew the trademark in 2013 and Tiger Lily jumped on top of that and filed a trademark for whiskey and beer using the Lehman Brothers name. The argument that Barclay's made about the marks was a) they own the marks, b) the marks are famous and c) clearly if Tiger Lily uses the marks for whiskey, even though it's not the same goods and services as Lehman Brothers Financial Services or Barclays Financial Services, people are going to make some association back to the original owner of the mark, in this case, Barclays, and it would result therefore in dilution of the distinctive quality of Barclay's mark. Further, the Tiger Lily's mark falsely alludes to a connection between Barclay's predecessor in interest Lehman Brothers. 

Despite Tiger Lily's defense that Lehman let the mark lapse, all trademark rights derived from use in commerce and common law rights are king if you've been using it first. Registration helps, but it doesn't give you absolute rights to use something. Tiger Lily's defense that they were the "first to file" and that Barclays had abandoned the mark failed and the TTAB, Trademark Trial and Appeals Board eventually found in favor of Barclays sustaining the likelihood of confusion argument, relying on two key considerations in the DuPont analysis. The TTAB said that the similarities between the marks and the similarities between the goods and services, while they're very different, the marks identical in sound appearance and meaning. And because the mark is relatively famous in this case, even where goods and services are not competitive or intrinsically related, the use of identical marks can lead to the assumption that there's a common source. The TTAB went on to say the goods and services need not be identical or even competitive to support a finding of likelihood of confusion. And in this case they found Lehman Brothers is famous and that Tiger Lily's goods and services are the type that could be easily encompassed in the commercial repertoire of a famous mark owner, such as Barclays, because Barclays is so huge. So Tiger Lily has the opportunity to appeal this decision, we'll see if they do, but for now they are out of the game.

Tom Dunlap chats with Mo Bunnell, the founder and CEO of Bunnell Idea Group, about how professionals such as lawyers, doctors and accountants can market themselves and their services. We also discuss his book, The Snowball System, which is a deep exploration of these topics.  

Kanye was actually sued over a song called Ultra Light Beam. The plaintiffs were Andrew Green and Shirley Green suing on behalf of their daughter, which in the lawsuit, I assume she's a minor, was identified solely as NG, that's November Golf, and somebody named Andrea Green. At the beginning of a song by Kanye, there's a small sample from that work, Ultra Light Beam that involves the NG miner and Andrea Green praying together and saying something about not having devils in the house. Kanye sampled that, it was in his song. Apparently, he had approached NG's original mother and then NG was adopted, and the original mother had given him permission, but nothing in writing and no money. All of it comes down to the fact though of something much simpler, and I think it's something that companies and individuals and anyone who does anything that's copyrightable, from software to fictional work, needs to take note of. Since the case, The Fourth Estate, the United States Supreme Court has said over and over again, "You can't bring a copyright suit on a copyright application. You've got to have a registration, an issued copyright registration." And in this case, that's why the bulk of the complaint was initially dismissed in January. The case settled subsequently. So, there's really nothing more to say there about Kanye or this NG Ultra Light Beam song, except that it was just a good lesson. 

Tom Dunlap chats with David Notowitz, of National Center for Audio & Forensics, and David Ludwig, of Dunlap, Bennett and Ludwig, about how much information is stored in digital evidence and why attorneys need to thoroughly analyze video and audio files the way they do other documents. We also discuss what can go wrong if attorneys don’t do their homework with digital evidence.  

David Notowitz is the founder and lead audio, video, and digital forensic expert of NCAVF, the National Center for Audio and Video Forensics. NCAVF provides all levels of consulting, video and audio clarification, and media preparation for legal situations - from video production, 3D scene reconstruction, and forensic measurements to media enhancement, cellphone recovery and analysis, and testimony as an expert witness. From 2001 until today, NCAVF has grown into one of the top privately owned audio, video, and smartphone forensic companies in the country with six full time employees.

On November 10th, there is a crazy important case that involves a challenge to the Affordable Care Act, or the ACA. The ACA is the healthcare law that some people call Obamacare. And what's being challenged specifically in this case is something called minimum essential coverage provision. And sometimes you heard it called the individual mandate. What this minimum essential coverage provision says is that if you don't have healthcare, then you have to pay a penalty. And it's being challenged because Congress set the penalty to $0 starting January 2019. And what that resulted in is a lot of states saying, well, that's unconstitutional because the penalty of $0 essentially means that provision of the law doesn't do anything. And doesn't generate, "At least some revenue." As a result, Texas, and a number of other states have filed suit to overturn the entire Affordable Care Act based on that one provision. And there's a really great breakdown of this on the internet, if you just type in California versus Texas, which is the name of the case. 

What happened at the trial court was that this case was heard, it was appealed to the Fifth Circuit, the Fifth Circuit remanded it, but the Supreme Court jumped in and is taking the case up now. It'll be, probably, one of the first major cases besides election day cases that Amy Coney Barrett is going to have to rule in. And the courts, Republican five for majority on the Supreme Court right now, where Justice Roberts has been the swing vote many a time is now changing, obviously because there is a sixth for majority on the Supreme Court. And Democrats before only had to convince one justice to swing their way when it came to political leanings.  Now, ostensibly, the fear is that Democrats have to sway at least two Republicans to get "their way." But if the ACA's overturned it could have massive and far reaching consequences for the entire healthcare system in the United States. And I don't think they're necessarily good consequences, but we'll see what happens on November 10th in oral argument and see what questions the justices ask, and what the reporters say is being telegraphed by this. 

Today, we're going to talk about the Netflix lawsuit involving the estate of sir Arthur Conan Doyle, the author of the Sherlock Holmes series.

The Doyle estate sued Netflix over its making of a film called Enola Holmes. That film is about the 14-year-old fictional sister of Sherlock Holmes. The issue is that most of the Sherlock Holmes stories, at least those published prior to 1923, were found to be out of copyright by another court, so that left the Doyle estate with only Sherlock Holmes stories published between 1923 and 1927, approximately 10 stories, which they claim is when Sherlock Holmes, the character, was developed. The Enola movie, of course, involves a fictional sister Sherlock Holmes that does not appear in any of the Sherlock Holmes books. Copyright law, when it comes to protecting fictional characters, there are two basic tests. There's the character delineation test and the story-being-told test. They sort of come to the same thing, but the character delineation test specifically has been said to be when a character has been delineated to the point at which behavior is relatively predictable so that when that character is placed in a new plot situation, it will react in ways that are at once distinctive and unsurprising. Interestingly, the other standard, the story-being-told test was applied to say, basically, if the character is only there to move the story along and doesn't have these distinctive features, that you fail and you don't have copyright rights.

The next thing they have to prove is that is the character and the copied work actually a copy of the character in the original work? In other words, is it infringing? In this case, it's really this movie centered around Millie Bobby Brown character, Enola Holmes, and not so much around Sherlock Holmes, Henry Cavill's character himself. He's certainly an important background character, a supporting character, but by no means the center of attention, and nor do I think personally that a lot of the things that he does in the film are so related to the actual Sherlock Holmes books as to make me believe that it's actual copyright infringement of the Holmes character, at least as distinguished between the very first Sherlock Holmes books in the 1880s and the series of 10 books from 1923 to 1927. 

Today, we're going to figure out what the UK thinks about Venezuela's president. Is it Nicolas Maduro or Juan Guaido?

There's a question in Venezuela as to who the head of the government is. The United Kingdom officially thinks that it's Juan Guaido. They've said that Maduro has suppressed the local populous and suppressed voters and therefore they issued an official statement saying that Maduro was not the president, Guaido was, even though Maduro was in control, at least allegedly in control of the government. So why is this a big deal? Well, there's $2 billion sitting in the Bank of England and Brazil? At least the putative government under Maduro has sued to get that money and the UK has said, originally the high court said, "Well, that's not your money. That belongs to the head of government Guaido." But what's interesting is an English court of appeal overturned that ruling. They didn't decide that Maduro was the true head of government but they recertified it back to the high court to find out from the high court, one while the UK recognizes Mr. Guaido as president for all purposes and therefore does not recognize Mr. Maduro, the UK has to say that in a more definitive answer, and two, they have to recognize Mr. Guaido is entitled to be the president of Venezuela and thus entitled to exercise all the power. But they also have to recognize Mr. Maduro, who does in fact exercise some or all of the powers of the president of Venezuela. For now that $2 billion is going to stay in England, along with another $120 million that is in Deutsche Bank.

Tom Dunlap chats with Rhonda Miller, partner of Dunlap, Bennett & Ludwig, about how to protect your assets during a global pandemic and the presidential election. 

The US Supreme court recently had a big decision when they removed a judge's order, saying that South Carolinians who are voting had to have a witness.

A judge in South Carolina said that the state's rule that you had to have a witness before you could send your mail in ballot. The judge ruled that that couldn't stand and he stopped the state from implementing that change, and the Supreme Court stayed that judges order saying that ruling could stand.

Kavanaugh wrote a concurrence that listed two reasons for this. One, he said that the constitution and trust the safety and health of people to the states, and that the judiciary should not second guess the states election rules during a COVID pandemic. And second, he said that the Supreme Court has, for many years, emphasized that federal courts ordinarily would not alter any election rules this close to an election.

The Supreme court recently reinstated a similar law in Alabama, but refuse to reinstate a similar law in Rhode Island that required two witnesses. 

If you're in South Carolina, make sure you've got somebody standing next to you before you cast your ballot. If you've already sent it in, or at least before October 6th, it's still going to count.

Today the question, what happens legally if a candidate or if the president dies before the election day?

Well, we all know if the president passes away that the vice president gets sworn in and he sits in that office until the election happens. But what happens if a candidate for president dies before the election happens, can a political party replace a candidate?

It seems that the answer is yes, but not this year because we're too close to election day. According to associated press already 63 million ballots have been sent to voters and 3 million votes have already been cast. So it's unlikely that they'd be able to substitute a candidate. Only Congress could change the date of the election, and they're unlikely to do that this year. What happens if somebody who's elected dies before they take office, between the votes, November 3rd and January 20th at noon, when officially the sitting president's term ends and the next president's term begins? If that person dies, then the constitution, the 20th amendment says that the vice president elect shall be sworn in. There's a lot more to it, it involves the electoral college, and in fact, you have to remember that we are not actually voting for the president, we're voting for electors, who then select the president. Now, generally the Supreme Court has recently said that States can require electors to vote the way that people in the state voted, but that's not the case in every state.