An accident waiting to happen

Actually not an accident at all: perhaps a ticking time-bomb. Extensions of International trade marks to the US commonly run the risk of "overclaiming". The EU system is notorious for encouraging applicants to apply for registration for extremely wide ranges of goods and services, even including the kitchen sink, and the absolutists who would prefer trade marks to be more like copyright (a fortiori, registered designs) leap at the chance. The EU's use, or intent to use, requirements are pathetic. By contrast, the US has very demanding standards, and the problem that can arise when the two approaches collide is summed up neatly in this posting by my friend Marty Schwimmer - to which I don't need to add anything.

USA: Record labels explore what lies beyond takedown notices

Music Week reported a few days ago that a bunch of major record labels have filed in a US court for summary judgment in a long-standing claim against Vimeo, described by Digital Music News (which also has the court papers on its site) as "the cleaner cousin of YouTube that never played the copyright game as slickly."

Following last April's appeal judgment in Viacom v YouTube, which made clear that copyright owners are not hidebound by the notice and takedown procedure set out in the Digital Millennium Copyright Act, the labels claim that Vimeo knew, encouraged, and facilitated widespread infringement of musical copyright on a recurring basis. Capitol, which seems to be the lead label in this action, asserts in its filing that Vimeo failed a list safe harbor tests, and is not therefore eligible for immunity under the DMCA. Their statement goes on:

Confining the DMCA to a 'notice and takedown' statute places the burden entirely on the copyright owner and ignores the remaining safe harbor requirements. That is not what the statute says, nor is it the construct reiterated in Viacom. Congress made clear that copyright owners need never provide takedown notices, an often futile process.

Death of Copyright

An interesting article from Los Angeles Lawyer (back in November 2010), by Steven T Lowe of Lowe Law, describing how the Second and Ninth Circuits (which I think I am correct in describing, without intending to disparage the others, as the most important ones) have taken an approach to infringements by movie studios and broadcasters which makes it very difficult for creators. Killed it, indeed: he didn't even see a need for a question mark at the end of the title.

Judges have taken to disposing of such claims summarily, assuming responsibility for both the extrinsic and intrinsic analyses of the alleged infringement and therefore denying plaintiffs (as they are still called in those parts of the world where Lord Wolfe's dumbing-down exercise could not reach) their constitutional right to a jury trial (denied to copyright owners here rather earlier, I think). Worth a read: like so much American legal writing, the prose is clear and attractive, and the story is potentially relevant in our copyright system.

Where's the beef (again)?

Reposted from the Motor Law blog, because it's just too good not to share here too:


America is a difficult place to understand sometimes. Well, most of the time. An extraordinary degree of importance is attached to TV ads showing during the Super Bowl, and this year a General Motors ad has caused a furore. Bear with me - it does have a legal aspect.
The commercial plays on the Mayan calendar's prediction that the end of the world will come in 2012. According to the GM ad, surviving the end of the world (which, when you think about it, is a pretty pointless thing to do) depends on driving a Chevrolet Silverado.

Ford took exception, because the guy who didn't make it to the meeting place after the apocolypse drove the Ford competitor, the F-150.  The F-150? Isn't that the Formula One car? Or am I confusing it with the Ferrari pick-up? Either way, Ford seems to have suffered another corporate sense-of-humour failure: according to GM, the ad is an over-the-top spoof with "the devastation and destruction predicted to occur this year by the Mayan calendar [including] giant attack robots, meteors and frogs falling from the sky." GM's Global Chief Marketing Officer Joel Ewanick said:

We stand by our claims in the commercial, that the Silverado is the most dependable, longest-lasting full-size pickup on the road. The ad is a fun way of putting this claim in the context of the apocalypse.

The ad implies that the Silverado is more durable than the F-Series pickups, with Ford countering that there are more of its trucks on the road with at least 250,000 miles on them. Ford's lawyer has written to GM demanding that they "immediately cease and desist from making any unsubstantiated and disparaging claims regarding Ford's pickup trucks."
GM, still in the spirit of the ad, claim "we can wait until the world ends, and if we need to, we will apologize," continuing (probably not believing their good fortune at the additional publicity being generated by their rival):

In the meantime, people who are really worried about the Mayan calendar coming true should buy a Silverado right away.

Now (to pick up the legal theme in this story again), different countries have different approaches to comparative advertising. It almost invariably involves the use of a competitor's trade mark: in the Silverado ad, the F-word is used - and I don't mean Ferrari's parent ... So there is a prima facie trade mark infringement, except that most laws allow you to use your rival's trade mark to indicate its products. In the UK, it would have to be in accordance with honest practices in industrial and commercial matters and not take unfair advantage or be otherwise detrimental - broadly speaking it would have to be fair. You don't have to study American advertising practice for long to spot that they are rather more liberal over there: which makes it even odder that Ford should have reached for its lawyers over something like this - giving GM the oxygen of publicity even though it seems they had no intention of going further.
In a rational world, Ford's remedy would be to take the corresponding advertising slot next year and come up with something as amusing and memorable. If, that is, there is a next year.