In a highly anticipated ruling, the Supreme Court of the United States recently held that the disparagement clause of federal trademark law violates the First Amendment. This disparagement clause refused federal trademark registration for trademarks that are likely to disparage people, institutions, or beliefs.

All eight participating justices agreed that trademarks are private, not government, speech, and that the disparagement clause discriminates based on viewpoint. Describing it as a “happy-talk clause” “mandating positivity” – because it permits an applicant to register a positive or benign mark, but not a derogatory one – the Court found that the disparagement clause constitutes viewpoint discrimination that cannot withstand constitutional scrutiny.

Join Antigone Peyton and Kandis Koustenis with Decoding IP as they discuss this important decision, which will also affect the widely-publicized Washington Redskins case currently on appeal in the Fourth Circuit, and the future of the trademark’s similar ban on “scandalous” trademarks.

Photo Credit: Matt Wade via Creative Commons license.

Sometimes a President can’t always do what he wants. But tell that to the owner of the Twitter handle @RealDonaldTrump, who happens to also be the current President of the United States and a new government actor. Mr. Trump has created more controversy by using his personal Twitter handle to send out information relating to his work and thoughts as POTUS while blocking followers who sent negative or critical responses on this microblogging platform. Recently, constitutional advocacy groups and well known former government officials have advised Mr. Trump that he does not have the right to block users on Twitter and told him to knock it off, or they’ll sue. Join Antigone Peyton and Jennifer Atkins for a lively discussion about the Twitter storm and the constitutional issues raised by the President’s use and management of a personal Twitter handle while tweeting about his activities and thoughts as the President.

Photo Credit: Rosaura Ochoa via Creative Commons license.

Sometimes a President can’t always do what he wants. But tell that to the owner of the Twitter handle @RealDonaldTrump, who happens to also be the current President of the United States and a new government actor. Mr. Trump has created more controversy by using his personal Twitter handle to send out information relating to his work and thoughts as POTUS while blocking followers who sent negative or critical responses on this microblogging platform. Recently, constitutional advocacy groups and well known former government officials have advised Mr. Trump that he does not have the right to block users on Twitter and told him to knock it off, or they’ll sue. Join Antigone Peyton and Jennifer Atkins for a lively discussion about the Twitter storm and the constitutional issues raised by the President’s use and management of a personal Twitter handle while tweeting about his activities and thoughts as the President.

Photo Credit: Rosaura Ochoa via Creative Commons license.

The ill-fated Fyre Festival drew delighted mockery from Internet denizens earlier this month and continues to draw lawsuits against the organizers. Social media “influencers” played a huge role in convincing people to buy tickets to the event that never happened and they are not escaping legal action. At least one case has been filed against social media influencers for fraud, negligent misrepresentation, and unfair trade practices under California law. Join Antigone Peyton and Jennifer Atkins as they discuss the pending case and the Federal Trade Commission-mandated obligations on social media influencers and the companies they promote. The Fyre Festival may not have changed the music festival world, but it may yet change the legal landscape of social media marketing for years to come.

Photo Credit: Rosaura Ochoa via Creative Commons license.

In the United States, trademark rights generally go to the first to use a mark in commerce as opposed to the first to file a mark with the trademark office. But what does that really mean? A recent trademark dispute case, Nexsan v. EMC, made headlines because it seemed to turn that basic premise on its head, awarding trademark rights in the mark “Unity” for data storage systems to the first to file, Nexsan, although EMC claimed use of the mark a year before Nexan’s filing. What drove the decision? While EMC had used the name, it had done so inconsistently, internally, and under strict confidentiality agreements. The court concluded that use with customers under confidentiality restrictions did not constitute public use in commerce as required to establish trademark rights. There are lessons here for protecting intellectual property as you develop new products. Join Kandis Koustenis and Jennifer Atkins as they explain the first use doctrine in trademark, the interaction between trademark and patent law in terms of the impact of public disclosure, the advantages to early trademark filing, and ways you can protect your intellectual property rights during product development.

Photo Credit: opensource.com via Creative Commons license.

Are Internet streaming services cable systems under Section 111 of the Copyright Act and therefore entitled to retransmit broadcast television under the compulsory license scheme? Under Section 111, cable systems can rebroadcast traditional broadcast television content in exchange for paying a statutory license fee to the Copyright Office at the Library of Congress. After the Supreme Court in American Broadcasting Companies, Inv. V. Aereo compared Internet streaming services to cable companies, FilmOn a company that streams television content over the Internet, argued that under the Supreme Court’s reasoning it should be entitled to participate in the compulsory license scheme. Broadcasters objected and brought two different lawsuits. Join Decoding IP’s Jennifer Atkins and Rebecca Cusey as they discuss the lawsuits, the history of the compulsory license scheme, and the impact of new technologies on our existing copyright legal framework.

Photo Credit: frankieleon via Creative Commons license.

The “Fearless Girl” statue sparked headlines around the world in March when it appeared opposite the famous “Charging Bull” statue at Manhattan’s Bowling Green. The statue, commissioned by State Street Global Advisors as an advertisement for its index fund of gender diverse companies, generated a fair amount of controversy. Among those upset about “Fearless Girl” is the creator of “Charging Bull” – Arturo Di Modica. Di Modica claims that when the city allowed installation of “Fearless Girl” opposite “Charging Bull” it corrupted the artistic integrity of his artwork. He complains that when he installed “Charging Bull” in 1989, he intended it to be a symbol of the strength of the American free market and that “Fearless Girl” changes that meaning – making the Bull a villain to which the Girl stands up. Di Modica and his lawyers sent a letter alleging copyright violations and demanding that “Fearless Girl” be removed. Does the permitting of a second statute in a public place violate the copyright of the artist of the first statue? Do artists have rights in controlling the meaning of their works? Join Antigone Peyton and Jennifer Atkins as they discuss Di Modica’s potential copyright claims and the varying protection of “moral rights” in the United States and around the world.

Photo Credit: Anthony Quintano via Creative Commons license.

Every couple of years, we see social media users publishing long posts containing broad declarations of copyright with lots of legalese. We want to shout from the rooftop: STOP!  Those posters are not doing anything to preserve their intellectual property rights. They simply spread misinformation about the nature of copyright in the age of social media. But we know that the continued popularity of those posts means is people are concerned about their rights in their own content. So on a recent Everyday IP show, we took some time to talk about social media platforms and copyright issues.

Know Your Rights

You cannot protect your rights by posting long screeds about copyright. But you can read the terms of service for your social media platform to educate yourself. When you choose to post content on social media, you give a license to the platform host to allow that content to be shown and shared, but you do not lose your rights. Check the terms of service so that you understand exactly how your content will be treated. Use watermarks on photos. Hire services that help you police the use of your own content.

Respect Others’ Rights

You also can follow some some basic rules of the road to protect your own content and to safely use content created by others. When you want to share content, always use in-platform sharing options. Contact content creators directly if you want to share or use their stuff outside of the platform where you found it. Always investigate the origins of creative content you want to use to make sure you know who holds the rights. Better yet: create your own content!

Want to know more about social media and copyrights? Check out the show and let us know if you have questions about how you are using content on social media platforms.

 

Hastags – a pound sign followed by a word or series of words with no space between – are ubiquitous on social media. People use them to spark and continue conversation about various topics on social media platforms. But can they be trademarked?

#Trademark Applications

Increasingly, companies are seeking to protect hashtags as trademarks. In 2015, applicants submitted more than 1,000 applications to the U.S. Patent & Trademark Office seeking trademark registration for hashtags. But how does trademark work in the context of hashtags, which by their nature are meant to be used by others?

During the summer Olympics, millions of people remarked on the various events as they happened using the hashtag #Rio2016. And the U.S. Olympic Committee made news when it sought to prevent any businesses from using that hashtag on social media accounts, claiming trademark protection. The news of the Committee’s enforcement action against small businesses wishing their hometown athletes luck resulted in social media backlash and in a lawsuit still playing out.

Can I Use My #Hashtag?

What is a business owner to do while the courts and the Trademark office continue to grapple with how hashtags fit into the landscape of trademark law? How are you using hastags on your corporate social media? What kind of trademark considerations should come into play as you build your own brand? Watch and listen to Antigone Peyton and Jennifer Atkins discuss these issues in Cloudigy’s inaugural Everyday IP live stream episode.

When Hasbro introduced a hamster named “Harris Faulkner” to its “Littlest Pet Shop” line of animal character toys, it drew a multi-million dollar lawsuit from real-life television journalist Harris Faulkner. The complaint, filed in New Jersey, included claims for violation of the right of publicity under New Jersey common law and false advertising and false endorsement under the Lanham Act.

Name That Right

Ms. Faulkner does not hold a trademark on her name. As we have discussed before, no one can trademark the name of a living person without her consent. But barring someone from obtaining a trademark on a name is not the same as preventing them from using it. That’s where the right of publicity comes in.

The right of publicity is a key tool for the protection of personal intellectual property, like your name or your image. What the right of publicity consists of varies from state to state because it is a creature of state common law, not federal statute. In New Jersey, the right of publicity protects the use of someone’s name or likeness without her consent. Here, Ms. Faulkner argued that Hasbro used both her name and her likeness in its toy hamster.

Hasbro moved to dismiss the case, arguing that there was no similarity in likeness and that Ms. Faulkner could not maintain a case based on her name alone. Hasbro lost and the case quickly settled. The positions taken by the parties in the case highlight the shifting contours of rights over names in the digital age. And the case itself highlights the pitfalls of product naming decisions by business people and their in house counsel.

Join Kandis Koustenis and Jennifer Atkins as they discuss Harris Faulkner’s case against Hasbro, the value of the right of publicity, and practical pointers for product naming decisions for business owners and in-house counsel.

Photo Credit: Jen_rab used with permission and without modification under a creative commons license.