Archive for the ‘trademark’ tag

Give Me A Break [From Litigation]

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Litigation and trademark registration decisions throughout the world are now struggling with an important question: should Nestlé be permitted to have a trademark in their Kit Kat candy bar shape? It seems that the answer varies by country.

Recently, Nestlé has become embroiled in litigation in South Africa over its trademarked chocolate Kit Kat bars. IFFCO, a United Arab Emirates company created and sold candy bars in the same shape under its Quanta Break and Tiffany Break names. Nestlé claimed that these delicious candy bars are “virtually identical” to their Kit Kat candy bars. IFFCO then sought to annul Nestlé’s Kit Kat trademarks in South Africa. [1]

In November 2013, the South African Court determined that, although the Kit Kat finger-shaped candy bar is a well-known and fully valid trademark, IFFCO was not seeking to pass their candy bars off as Kit Kat bars. Nestlé, upon appeal, seeks to argue that their use of essentially identical chocolate finger shapes amounted to trademark infringement and dilution. [2]

Furthermore, despite receiving European-wide protection last year for the candy bar, Nestlé may not receive trademark protection for the Kit Kat in the United Kingdom either. Their attempt to trademark the shape of their Kit Kat bar was opposed by Cadbury, likely as a response to Nestlé’s earlier opposition to Cadbury’s registration of their purple wrapper color. [3] This case was recently referred to the European Union Court of Justice for additional guidance .[4]

Surely, the shape of the Kit Kat bar is distinctive; but the distinctive packaging, in addition to the Kit Kat imprint upon each chocolate wafer, should be enough to prevent consumer confusion. Is it appropriate for trademark law to give Nestlé an effective monopoly on a particular candy shape? Clearly the South African Court did not think so and it will be interesting to see how this plays out in the United Kingdom.

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March 8th, 2014 at 5:35 pm

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I.Am.Other or I.Am.Same

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What at first appears to be a comical lawsuit may raise a credible point when it comes to trademark infringement analysis. This particular situation began with the famous Pharrell Williams (aka Pharrell) seeking to register the trademark, “I Am Other,” with the Patent and Trademark Office for use in connection with a variety of goods and services to the chagrin of recording artist, After receiving a cease-and-desist letter from’s legal counsel, Pharrell initiated a lawsuit against and his company, I.Am.Symbolic. seeking declaratory judgment that the pending I Am Other trademark was non-infringing and subsequently counterclaimed for trademark infringement.[i] While the famous names involved in this lawsuit are enough to make it newsworthy, it is’s attempt to use Pharrell’s history of quasi-infringing trademark registrations as evidence of his current infringement that makes this particular action legally noteworthy.

When determining the likelihood of confusion for a registered trademark, courts look to the Polaroid factors, which are a non-exhaustive list of variables that may be considered when determining whether the consuming public would likely be confused by this infringing mark.[ii] These factors include considerations such as the strength of the original mark, the proximity of the mark and any evidence of actual confusion.[iii] Additionally, courts in the past have considered a defendant’s attempt to capitalize upon the popularity of the name chosen.[iv] However, this attempt by’s counsel to point to Pharrell’s past possible infringement of unrelated, third parties is not an element courts tend to examine in trademark infringement suits.

But this practice does appear to be a significant consideration in analysis under the Anti-Cybersquatting Consumer Protection Act (ACPA).[v] Under the ACPA, a person’s registration or acquisition of multiple domain names that the person knows are identical or confusingly similar to trademarks at the time of the domain name’s registration can signal bad faith intent in registration. Therefore, a defendant’s past behavior is relevant despite being unconnected to the current domain name and trademark at issue.

Perhaps a history of infringing behavior involving other parties does indicate a registrant’s intent when seeking to register their mark and should be a variable considered when a court decides upon an infringement action. While’s counsel raises an intriguing point, he may want to avoid allowing subsequent trademark owners from raising this point as he has been accused of doing the very same thing. Will this become a new element when deciding trademark infringement? not sure.

[i] I Am Other Entm’t v. Adams, No. 13-CV-4547, 2013 WL 3297482 (S.D.N.Y. July 1, 2013).

[ii] Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961).

[iii] Id. at 495.

[iv] See Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967).

[v] Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) (1999).


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October 21st, 2013 at 11:45 am

Will Jeremy Lin’s Success On The Basketball Court Lead To Troubles In Another Court?

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Jeremy Lin’s battles have been well documented.  He led his high school to a state title his senior year, and yet he received no athletic scholarship offers out of high school.  After going undrafted from Harvard, Lin bounced around a few NBA teams before finding himself a spot in the starting lineup of the ailing Knicks.  And from there, a sensation was born, the birth of “Linsanity”!

Jeremy Lin’s recent successes on the basketball court may ultimately lead him into a battle in another court.  On February 13, 2012, Lin filed a trademark application for the term “Linsanity” with the U.S. Patent and Trademark Office.  The problem is that Lin’s filing came six days after Yenchin Chang, a 35-year-old California resident with no ties to Lin,  became the first to apply for a “Linsanity” trademark.  Chang said that he filed his application because, like many others, he “wanted to be part of the excitement.”  A second filing was also made on February 9 by Andrew Slayton, who coached at Lin’s high school.  Both applications for “Linsanity” have proceeded  quickly through the trademark examination process, as the Trademark Office’s database shows that both applications have already been assigned to an examining attorney.

The fight for the “Linsanity” trademark is fierce, as many attempt to jump on the bandwagon to capitalize on Lin’s remarkable story.  In fact, Lin’s emergence has translated into huge sales thus far.  ESPN is reporting that Lin’s No. 17 Jersey has been the number one selling jersey since February 4th, according to the NBA.  In addition, Yahoo! Sports recently announced that Jeremy Lin is the world’s fastest-growing athlete brand worth approximately $14 million.  So far, only Slayton’s application  is based on use of the “Linsanity” trademark in commerce, as Mr. Slayton, who owns the domain names and, has already begun selling Lin merchandise.  The remaining applications, including both Chang’s and Lin’s, are only based on a bona fide intent-to-use the mark in commerce.

Lin’s predicament is reminiscent of the rush to trademark catchphrases coined by Charlie Sheen last year, including by Sheen himself.  The law firm of Mintz Levin recently did a comparison of Lin’s situation with that of Sheen’s from last year.  The firm noted that when faced with trademark applications from Sheen and others for phrases such as “WINNING”, the Trademark Office refused registration based on Section 2(a) of the Lanham Act.  Under Section 2(a), registration of a mark may be barred if the mark is the same as, or a close approximation of, the name or identity of another person (that is not the applicant) and points uniquely and unmistakably to that person.  In Sheen’s case, the Trademark Office refused registration on the grounds that the applied-for mark “consists or includes matter which may falsely suggest a connection with the actor Charlie Sheen.”  In Lin’s case, Mintz Levin noted that given Lin’s recent explosion, his fame is such that consumers may presume that Chang’s and Slayton’s “Linsanity”  mark and associated goods are connected with Lin.  Similarly, the Trademark Office may refuse registration under Section 2(c), which is a bar to registration of a designation that identifies a particular living individual absent written consent.  Section 1052(c) of Article 15 the U.S. Code, which protects individuals’ privacy and publicity rights, also specifically prohibits the registration of a trademark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.”  Given the fact that Lin is unlikely to provide the required consent, the pending applications may ultimately be doomed.

Checking on the  status of Sheen’s trademark applications,  more than half of them have subsequently been abandoned.  As for Lin’s case, it remains to be seen whether trademark applications for “Linsanity” will suffer the same fate, or whether the “Linsanity” phenomenon truly has staying power.  What is clear, for the reasons articulated above, is that Lin appears well positioned to protect his trademark rights.

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March 12th, 2012 at 1:13 pm

The Battle Between Facebook and Timelines

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Back in September last year, Facebook was sued by for allegedly infringing the latter’s trademark right over the word “Timeline” in introducing the Facebook Timeline feature. is a website that allows users to record and share events, personal, public or historical. claimed that such infringement would eliminate its business due to consumer confusion. Today, the two companies laid out a schedule of due dates for preliminary legal proceedings, signaling the forthcoming trial or settlement in the near future.

Following the filing of the suit, Facebook fought back by claiming that not only is Facebook not infringing on any trademark, but that the Timeline trademark owned by is invalid because it’s too generic. Facebook argued that “Timeline” is a commonly used work, and granting trademark rights to the use of such word is unreasonable. requested a temporary restraining order stopping Facebook from incorporating its Timeline feature. The court denied the motion partly because the trademark is “descriptive”, the lowest level of distinctiveness aside from “generic”, which warrants very little or no protection.

Descriptive terms ordinarily are not protectable as trademarks under the Lanham Act.  They may, however, become valid marks by acquiring a secondary meaning in the minds of the consuming public. To succeed in maintaining the validity of the trademark, would have to demonstrate such secondary meaning.  However, it is highly unlikely that will be able to produce enough evidence to show that when consumers think of timelines on the internet, they think of Although has significant number of monthly visits, for those millions of people out there who are not users, the word “Timeline” simply means timeline that is not associated with any particular commercial entity. is most certainly aware of the weakness of their claims, and is very likely to settle with Facebook prior to the trial.

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January 25th, 2012 at 1:35 pm

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Cybersquatting: Lady Gaga and the UDRP

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In August, Stefani Joanne Angelina Germanotta – professionally known as Lady Gaga – looked toward the National Arbitration Forum (NAF) to obtain control of the domain name <>.  The domain name had been registered in June 2008 by “oranges arecool XD”, owner of over 2,000 domain names including <> and <even>.  While Ms. Germanotta not only has common law rights to the mark, but also owns three federal LADY GAGA trademarks, the Panel concluded that Ms. Germanotta was not entitled to the <> domain.

You might find this decision shocking, but it is not particularly surprising – at least to those familiar with current cybersquatting policies.  For those unfamiliar with the term, cybersquatting refers to the registration of a domain name, with bad faith, to profit from the goodwill of another’s trademark.  A cybersquatter registers a domain name with the intent of either (1) collecting income by placing advertisements on the website linked to that domain name or (2) selling that domain at an inflated place to the actual owner of the trademark contained within that domain name.  Cybersquatting may take one of a number of different forms.  In typosquatting, for example, cybersquatters rely on typographical errors made by Internet users when inputting a website address into a web browser.  This may include a common misspelling of the intended site (i.e. <> instead of <>), a differently phrased domain name (i.e. <>), or as in the case of Germanotta v. oranges arecool XD, a different top-level domain (i.e. <>).

A victim of cybersquatting has two primary recourses: the victim can sue under the provisions of the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. §1125(d)(1), or turn towards the Uniform Dispute Resolution Policy (UDRP), a policy promulgated by the Internet Corporation for Assigned Names and Numbers (ICANN).  Ms. Germanotta brought her case under the latter of the two – the UDRP – likely because this resolution process is a much faster and less-expensive system of arbitration.  Nevertheless, she proved unsuccessful because she failed to prove the following three elements required under paragraph 4(a) of the Policy: (1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.  While the Panel concluded that the first element was met, the Panel also found that oranges arecool XD’s use of the disputed domain name in conjunction with a fan website was a legitimate noncommercial or fair use of the policy.  It thus did not even consider whether Respondent registered and used the disputed domain name in bad faith and concluded that relief should be denied.

Because the avoidance of confusion is such a fundamental tenet of trademark law, I fail to understand why a finding of fair use in this instance should trump a finding of likelihood of confusion.  By all means, I am a strong proponent of fair use and thoroughly appreciate its constitutional foundation, and I certainly wouldn’t hesitate to say that oranges arecool XD should be free to own a domain name such as <>.  Nevertheless, I have no doubt that a fan would consider Lady Gaga the owner and licensor of the domain name <> and thus that the Respondent’s ownership of the domain name would deceive the public and serve as a source of confusion.  Although oranges arecool XD does title the website “Lady Gaga’s (Unofficial) Fansite,” its inclusion of the term “unofficial” is hardly noticeable and fails to clearly disclaim that the website is in no way affiliated with Ms. Germanotta herself.  For these reasons, the Panel’s decision seems particularly unsatisfying.  Had the Panel instead weighed the UDRP’s three elements, I believe a much more appropriate outcome would have been reached.

I find the Panel’s decision all the more troubling in light of ICANN’s forthcoming introduction of new generic top-level domains (gTLDs) (.com, .net, .org etc.).  As more top-level domains open up, Lady Gaga and other trademark holders will have to litigate additional domain names in the Internet sphere that are likewise confusing.  With the endless possibility of new top-level domains, they will certainly have their work cut out for them.  But as the UDRP stands, I see a lot of failure in their futures.  What do you think?  Do you agree with the Panel’s ruling? Do you think that the three elements should be weighed under the UDRP?

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November 17th, 2011 at 9:56 pm

CLE for Patent Attorneys and Agents

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Most states and territories in the United States require attorneys to meet continuing legal education (CLE) requirements in order to practice law before their courts.  Only Maryland, Connecticut, Massachusetts, South Dakota, Washington D.C., and Michigan do not require continuing education requirements.  Despite the fact that the United States Patent and Trademark Office (USPTO) requires lawyers and agents to pass the patent bar prior to practicing before the Office (in addition to the state bar attorneys must pass in order to practice within their respective state), the USPTO does not require CLEs.

The United States Patent and Trademark Office should require agents and attorneys who have passed the USPTO bar exam to attend continuing legal education in order to practice before the USPTO.  CLE requirements exist to keep lawyers up to date with a changing legal landscape and to improve the public’s perception of lawyers.  The USPTO should hold its practitioners to the same standard.

Continuing education in the practice of patent law benefits not only the practitioner, but also the client.  The up-to-date practitioner is able to provide clients with the best possible outcome with few procedural impediments along the way.  Simultaneously, the educated practitioner is also more likely to avoid liability that could result from failure to monitor recent legal reforms.

The need for continuing education with respect to patent bar registration is highlighted in the wake of the recently passed America Invents Act, which substantively changes patent law and practice.  As part of this legislation, the United States will now conform to the first-to-file system for awarding patents, as opposed to the previous first-to-invent system.  While this change may have made headlines in the news sufficient to inform most practitioners, other substantive, but less publicized changes have also occurred as a result of this legislation.  These changes include a broadened timeframe for pre-issuance submissions by third parties and the establishment of post-grant review proceedings.

Since continuing education is not currently required to maintain patent bar registration, there is no guarantee that practitioners will be equipped to handle these changes when they become effective.  Mandatory continuing education would aid in solving this problem.



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September 17th, 2011 at 10:52 pm

Court Dismisses AT&T’s Trademark Claim Against Verizon

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When AT&T sued Verizon Wireless for its “There’s A Map for That” advertising campaign,

AT&T could have brought a dilution claim against Verizon’s use of the slogan, “There’s a map for that,” which is very similar to AT&T’s slogan, “There’s an app for that,” featured in its own iPhone commercials.

In bringing a dilution claim, AT&T could have argued that Verizon’s use of “There’s a map for that” weakened the effect of AT&T’s slogan because consumers would no longer think exclusively of AT&T when hearing the phrase. It seems like AT&T would have had a good argument for dilution, but instead, it sued Verizon for false advertisement under the Lanham Act, federal trademark law.

The ads themselves feature two maps comparing AT&T’s 3G network coverage area to Verizon’s superior 3G coverage area. AT&T asked the court to stop Verizon from running the ads because they could mislead customers into thinking AT&T doesn’t offer any coverage in areas where its 3G network isn’t available. (In reality, customers can still make calls and access the Internet using AT&T’s slower EDGE or GPR networks, even where there isn’t 3G network coverage.) Verizon, on the other hand, argued that the ads simply point out that AT&T hasn’t invested enough in upgrading its network to handle new smartphone activity from the popular Apple iPhone.

In its response to AT&T’s complaint, Verizon wrote: “AT&T did not file this lawsuit because Verizon’s ‘There’s a Map for That’ advertisements are untrue; AT&T sued because Verizon’s ads are true and the truth hurts.” Verizon also pointed out that the Lanham Act requires AT&T to show actual proof that the ads are misleading consumers because First Amendment free speech is at stake in the suit. Verizon continues:

As to four of the five challenged ads, AT&T has presented no evidence of consumer deception. This alone is a sufficient basis to deny AT&T’s motion as to these ads. As to the one ad . . . AT&T commissioned a consumer survey . . . . But this survey is riddled with errors.

Apparently the court agreed. Judge Timothy C. Batton, a federal judge in Atlanta, declined to grant AT&T a preliminary inunction that would temporarily stop Verizon from running the ads. He stated that he didn’t believe AT&T would succeed in its claim based on the evidence submitted. The judge said:

I think that a person with a skeptical bent of mind might call Verizon’s ads sneaky . . . . I think a more sanguine view is that they are simply clever. Either way, however, they are literally true. And the Court holds that AT&T has failed to carry its burden of showing that they are nevertheless misleading.

Immediately following the court’s ruling, AT&T indicated that it would continue with the suit despite the initial loss, but it has since decided to drop the claim.

Perhaps AT&T realized that after its own expansive advertising campaign touting its network as the “fastest 3G network” (implicitly comparing it to Verizon’s coverage and other secondary competitors’ — such as Sprint and T-Mobile), it isn’t likely to garner much sympathy in its claims against Verizon. The bottom line is that Verizon’s maps of AT&T’s 3G network are accurate. If AT&T wants to say its 3G network is faster than Verizon’s, why shouldn’t Verizon be able to say its own coverage is more expansive than AT&T’s? Maybe AT&T realized that it should stop sinking its money into law suits and instead use it to fill those gaps in its coverage. Federal trademark law is meant to protect against false advertising, but this should promote fair competition, not hinder it. Therefore, Verizon’s ads, if accurate, should encourage AT&T to improve its service. This type of competition, in a free market, will hopefully produce the best quality products at the lowest prices for consumers.

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December 31st, 2009 at 4:07 pm

Jackson Browne v. John McCain: Copyright Lawsuit Settled, Case Dismissed

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The lawsuit between rock artist Jackson Browne and Senator John McCain and the Republican Party was recently settled, and ordered dismissed on August 4, 2009, almost a year after the suit was filed by Browne.

Browne filed a lawsuit against McCain, the Republican National Committee, and the Ohio Republican Party over the unauthorized usage of Browne’s signature song “Running on Empty” in a commercial criticizing the energy policy of then-Democratic Presidential candidate Barack Obama.  The commercial, which aired on television and, featured parts of the sound recording of “Running on Empty” throughout.

The causes of action listed in Browne’s complaint, filed in U.S. District Court in California, included copyright infringement, trademark infringement, and violation of the California common law right of publicity.  The defendants’ motion to dismiss, relied, amongst other things, on a fair use defense against Browne’s copyright claims and a political speech exemption against the trademark claim.  The motion to dismiss was ultimately denied.

The lawsuit brought to light the clash between intellectual property rights and fair use as well as the First Amendment in the context of political speech, as political campaigns turn more and more to popular culture references in the media to reach out to voters.  McCain was also opposed by artists for his campaign’s use of popular music from the Foo Fighters, Heart, and John Mellencamp.  Even Obama ran into trouble during his campaign, when soul legend Sam Moore (of “Soul Man” fame) asked Obama to stop using one of his songs.

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August 7th, 2009 at 11:02 am

Tiffany v. eBay – Transnational Trademark Problems?

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by Jeff Liu , MTTLR Associate Editor

Last summer, a federal district court ruled, in Tiffany v. Ebay, that online marketplace eBay was not liable under trademark and unfair competition law for facilitating the sale of counterfeit items on its website. The court noted that it is a “Trademark owner’s burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring.” Some U.S.-based commentators praised the decision; others were somewhat more critical. Few, however, commented on the way this decision has the potential to the put the U.S. directly at odds with several key European Union countries on contributory liability for trademark violations.

While this decision represents a victory for eBay and other online marketplaces in the United States, courts in other countries have shown less sympathy for eBay. Especially in European jurisdictions decisions have tilted in support of trademark holders rather than the operator(s) of online marketplaces. Several judicial decisions handed down by countries in the European are opposite to the decision handed down in Tiffany Inc. Two important decisions highlight the conflict at hand. On June 30, 2008, a French court ordered eBay to pay 61 million dollars in compensation to LVHM for allowing the sale of fake merchandise on its website. Just a month earlier, another French court had ordered eBay to pay Hermes a compensation of 20,000 Euros for the sale of counterfeit merchandise on its website. And both of these decisions come in light of decision by a German appeals court in April, 2008 against eBay on the same issue. The German appeals court ruled eBay had to take preventive measures against the sale of fake Rolexes on its website. Both the French and German courts seem to have taken the position that eBay has a responsibility to prevent the sale of counterfeit goods on its website, but the U.S. court has taken the opposite position, that the burden falls onto the holder of the trademark. In an increasingly global marketplace, this conflict will have to be resolved.

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February 12th, 2009 at 9:13 pm

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DIY Campaign

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by: Nancy Sims, MTTLR Blog Editor

The McCain campaign’s visual themes (i.e. the Optimum typeface, his simple star logo) have drawn positive comments for the strength and military experience they convey. But many commentators agree that the Obama “O” logo is a radical political innovation: “probably the only political campaign logo to have a visual theme in it”, “[a] true logo, one that is recognizable apart from the candidate’s name” and “the first sophisticated corporate-style identity to emerge from presidential politics”, “signals by design that Obama has a different message”, “perhaps one of the few conceptual logos in the history of presidential elections”, “[c]learly not the old standards of years past.”A few have pointed out that the Bush 2004 campaign’s “W” logo was similarly identifiable, but it did not convey the same level of conceptual information.

The “O” logo has been criticized as derivative of other logos, (although the same criticism has been leveled with similar plausibility at the McCain logo.) For any number of possible reasons (its innovation, its visual impact, its simplicity, basic political demographics) the “O” logo has become a favorite new theme of makers, hackers, crafters and other habitues of the DIY/maker/remix culture. (In an attempt to keep this post politically neutral, I searched extensively for McCain remixes. The closest match I found were these commercially available McCain logo cookies.) Despite plausible copyright and trademark claims to the art and product-identifying use of the logo, unauthorized reinterpretations have rapidly proliferated.

(For all of the following examples, click the thumbnail to see the image in its original context.)

It’s popular in food (particularly cookies):

CC-licensed by-nc-sa

CC-licensed by-nc-sa

CC-licensed by-nc

Knitters and other textile and fabric crafters have also interpreted the logo:

CC-licensed by-nc-nd

Several artisans have made their own “O” products:

CC-licensed by-nc-nd

Finally, a few of the reinterpreted “O” logos defy categorization. They include:

The Penn State S-Zone is transformed into the O-Zone:
CC-licensed by
A bicycle wheel is transformed into a glowing “O”: A pregnant supporter displays her own “O” logo:

Additionally, the logo seems clearly a motivating factor for the Barack O-Lanterns of non-campaign-affiliated Yes We Carve and other Obama O’Lanterns.

It is interesting to note all the different claims people are making as to “ownership” of their logo-derivatives. A number of images are Creative Commons licensed, but with varying levels of control asserted (from the very loose “attribution” license, to the more restrictive “attribution-noncommercial-noderivatives” license.) Several of the images on Flickr also display the traditional “all rights reserved” language, but since this is the Flickr default, it doesn’t necessarily mean a great deal. The creators of both the necklace and the earrings have their derivative images for sale on craft website Etsy – almost certainly a commercial use, although the necklace maker claims to be donating to the Obama campaign with every sale.

In the midst of an intense political campaign, the Obama camp’s interests may, in many ways, be opposite from those of most trademark and copyright owners. It is in the campaign’s interest for the mark to be distributed widely. Although using the language of trademarks – the Obama website refers to the “‘O’ Logomark” – this distinctive image does not appear to have been registered with the PTO (a TESS search for “obama” yielded 38 results, none of which appeared to be for this image.) In fact, they make the image freely downloadable in a variety of formats from the campaign website.

Given the limited utility of the mark once the election is over, there is little incentive for the campaign to police others’ uses of the mark, be they positive or negative. Without anyone having directly dedicated the “O” mark to the public domain, it appears to have become de facto public property.

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October 20th, 2008 at 8:43 am

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