Re:Marks on Copyright and Trademark

Some of the latest news on copyright and trademark from around the web:

• Perfect 10 Sues Giganews for Copyright Infringement by Thomas Mennecke at Slyck.
• Charlie Sheen aiming to trademark 22 catchphrases by Kate Ward at Entertainment Weekly. #Winning?
• Trademarks for Sarah, Bristol Palin head to approval by Catalina Camia at USA Today.
• Apple drops attempts to trademark 'pod' by Ben Camm-Jones at Computerworld.
• Wegmans, Walgreens Settle Suit Over 'W' logos by Wall Street Journal (blog).
• More subpoenas on the way to identify John Doe BitTorrent users in copyright cases from Internet Cases by Evan Brown.
• Copyright Takedown Notice Isn't Actionable Unless There's an Actual Takedown. Amaretto Ranch Breedables, LLC v. Ozimals, Inc., 3:10-cv-05696-CRB (N.D. Cal. April 22, 2011). More from Eric Goldman here.
• Parisi v. Sinclair, 2011 WL 1206193 (D.C. D.C. March 31, 2011). Section 230 of the Communications Decency Act shields online book sellers from claims brought over promotion and sale of scandalous book about presidential candidates. The complaint. More source documents. Summary by Eric Goldman.
• Google's trademark win for "Android" is being appealed to the Seventh Circuit.
• The World Intellectual Property Organization (WIPO) announced that international trademark filings under the Madrid Protocol increased by 12.8% last year.  More statistics available in this report.
• Musgrove v. Helms, 2011 WL 1225672 (Ohio App. 2 Dist. April 1, 2011).  Notwithstanding any increased interest in the discoverability of social media evidence, the rules in place may serve to render the information discovered ultimately useless later in the litigation.  More at Internet Cases blog.
• ICANN approved .xxx. India has already announced it will block .xxx.  See our blog post about it here.
• Great piece on the evolution of Dutch P2P downloading by The IPKat.
• Ofer Tur-Sinai, The Endowment Effect in IP Transactions: The Case Against Debiasing.  Recommended reading by Rebecca Tushnet's 43(B)log.
• YouTube and Amici Briefs in the Viacom v. YouTube Appeal in a single post.
• Righthaven, LLC v. Jama, 2011 WL 1541613 (D. Nev. April 22, 2011). Posting a 33 paragraph Las Vegas Review-Journal story was fair use, and the court granted it on summary judgment. Steve Green's writeup of this opinion.
• Rebecca Tushnet, Running the Gamut from A to B: Federal Trademark and False Advertising Law, 159 U. Penn. L. Rev. 1305 (2011).
• USPTO study: "Trademark Litigation Tactics and Federal Government Services to Protect Trademarks and Prevent Counterfeiting."

Annnndddd we're back from a small hiatus.  Since the last IP Roundup, there have been a ton of great stories and analyses on Trademark and Copyright Law around the Internet.  

• Gripe Websites – still fair use: Sedgwick Claims Management Services v. Delsman, 09-16809 (9th Cir. March 21, 2011). Delsman is a blogging griper about Sedgwick. He made some griping material that included cut-and-pasted headshots of Sedgwick's managers. Delsman got a favorable ruling in the district court, including a fair use ruling on the headshots and an anti-SLAPP ruling on the other claims. Shockingly, rather than quietly licking their wounds, Sedgwick appealed the ruling to the Ninth Circuit, which was rebuffed. Read full post at Eric Goldman at Technology & Marketing Law Blog.
• Steve Baird of DuetsBlog recently moderated a seminar "Trademark Bullies" here.
• Has the original Coca-Cola recipe leaked out?
• Keurig, Inc. v. Strum Foods, Inc., --- F. Supp. 2d ----, 2011 WL 843932 (D. Del.) from Rebecca Tushnet's 43(B)log. Keurig makes single-serve coffee machines and a corresponding line of coffee-filled cartridges. Sturm makes cartridges for use in Keurig machines under the Grove Square brand name. Keurig alleged trademark infringement, trade dress infringement, dilution, and related state and federal claims. Strum Foods succeeds with argument that "“*For use by owners of Keurig® coffee makers" is nominative fair use. Read more here.
• Discussion of Netflix’s reported efforts of the company to become an acquirer of original content: Netflix and Distribution: The Unsung Story of Copyright Content from The IPKat by Neil Wilkof.
• Big, Big Loss For Righthaven: Reposting Full Article Found To Be Fair Use by TechDirt.
• If Parody is Exempt from Dilution, Why isn't It Exempt from Infringement? from Seattle Trademark Lawyer by Michael Atkins
• The first time that an SEO/Web Host or other Internet Intermediary was found liable for contributory infringement without having first received actual notification of the counterfeit sales from a third party: Roger Cleveland Golf Co. v. Prince, 2:09-cv-02119-MBS (D.S.C. jury verdict March 10, 2011 and judgment March 14, 2011).  Read more at Technology & Marketing Law Blog.
• Great presentation by Eric Goldman "Consumer Reviews of Doctors and Copyright Law" -- talk slides.
• AP announced that it has settled its copyright claims against Shepard Fairey by AdWeek.
• Subway seeks to trademark "footlong."
• The Music Industry, Post-Napster by the New York Times.
• Court says you don’t need a person’s permission to tag them in a Facebook photo
• from Internet Cases by Evan Brown (@internetcases): Lalonde v. Lalonde, — S.W.3d —, 2011 WL 832465 (Ky. App., February 25, 2011)
• USPTO Denies Twitter's Trademark Application for 'Tweet', Again
• The Supreme Court agreed to decide whether Congress may take works out of the public domain and grant them copyright status: In what ScotusBlog is calling "a major test of copyright power," the Supreme Court agreed to hear an appeal of the 10th Circuit decision in Golan v. Holder upholding the Uruguay Round Agreements Act, a law that brought the US into compliance with several international treaties and retroactively restores copyright in some expired foreign works.
• Keyword advertising injunction reversed from Rebecca Tushnet's 43(B)log.
• Buying keywords isn't deceptive; deceptive ads are deceptive from Rebecca Tushnet's 43(B)log. Federal Trade Commission v. Cantkier, 2011 WL 742647 (D.D.C)
• Charlie Sheen’s unusual phrases are spurring a race to the U.S. Trademark office by entrepreneurs hoping to cash in by ABA Journal.
• Network Automation, Inc. v. CBM-CW Advanced Systems Concepts, Inc. (9th Cir. Mar. 8, 2011). Also, a very good in-depth analysis by Eric Goldman here.
• Very useful table: State Cyberstalking, Cyberharassment and Cyberbullying Laws

Our team's weekly roundup of top stories on Copyright and Trademark from around the Internet:

• Google Suffers Surprising Preliminary Loss in Keyword Advertising Case: Jurin v. Google, 2011 WL 572300 (E.D Cal. Feb. 15, 2011) from Technology & Marketing Law Blog by Eric Goldman.
• They just mailed it to you. It’s yours. You can sell it. from LIKELIHOOD OF CONFUSION® by Ron Coleman: The Ninth Circuit has decided that if you get unsolicited CDs through the mail, you can turn around and sell them on eBay. It’s not copyright infringement, notwithstanding a label on the CD that says “Promotional Use Only—Not for Sale.” UMG Recordings Inc. v. Augusto, 9th Cir., No. 08-55998, 1/4/11).
• Great Presentation on "Domain Name and Keyword Regulation" at Comparative Domain Name and Keyword Regulation from Technology & Marketing Law Blog by Eric Goldman. 
• Righthaven Appeals Courtroom Defeat by Wendy Davis at MediaPost: Copyright enforcement outfit Righthaven suffered a defeat in court last year when one of its lawsuits against blogger Michael Nelson was tossed on fair use grounds. 
• Hasbro wins lawsuit over Play-Doh trademark by Associated Press: A British court says Play-Doh by any other name is a trademark infringement, -- even if it's spelled differently.
• What Can the Jeff Koons Lawsuit Teach Us About Copyright Law? By FREAKONOMICS: Kal Raustiala, a professor at UCLA Law School and the UCLA International Institute, and Chris Sprigman, a professor at the University of Virginia Law School, are experts in counterfeiting and intellectual property. They have been guest-blogging about copyright issues. This week, they write about a recent Jeff Koons controversy.

• Protecting Taxpayers, Promoting Innovation, Preseving Justice: An Agenda for the Senate Judiciary Committee (with responsibility for legislation on intellectual property) for in the 112th Congress, By Senator Patrick Leahy (D-Vt.).
• Microsoft opposes Apple trademark for 'App Store' by Steven Musil at CNet News.
• Kwan v. Schlein, 2d Cir., 09-5202-cv, Jan. 25, 2011: Copyright infringement claims are time-barred as a matter of law where theunderlying ownership claim is time-barred.
• Adobe Systems Inc. v. Kornrumpf, N.D. Cal., No. 10-cv-02769-CW, Jan. 19, 2011: To avail itself of the first sale doctrine, the Defendant must demonstrate that he owned the copies of the software it resold; it is irrelevant whether the Defendant owned the discs on which the copies were sold. “A copyright attaches to an original work of authorship, not the particular medium in which it was initially fixed.”
• Carolina RailHawks Trademark and Domain Name sold on eBay by NBC17.
• Zynga Threatens Blingville For Using 'ville' by TechDirt.
• 1st Circuit Asked To Nix Lower Copyright Damages In File-Sharing Suit by Law360.

Have questions or comments about Re:Marks on Copyright and Trademark?  Email us at remarks@dlapiper.com.