The Twelve Res of Christmas: Yule-Themed IP Matters in 2015

The Twelve Res of Christmas: Yule-Themed IP Matters in 2015

It’s frequently stated Christmas is sneaking ever-backwards, every year striving to start its domination in our collective awareness and consumer dollars in an earlier date. Within the arena of litigation, Christmas creep manifests itself partly within the Yule-themed disputes that may occur at any season, especially in the regions of ip and freedom of expression. To get the Trademark and Copyright Law Blog in to the holiday spirit, we’ve put together twelve Christmas-themed legal matters (“res” in Latin) that led to an itemized opinion over the past twelve several weeks. Merry Christmas!

The Allegedly Stolen Reindeer

Cody Promote, a Nebraska Corporation, were built with a contract to provide Urban Outfitters with Christmas ornaments along with other doodads. However in 2013, artist Lisa Congdon came forward and accused Cody Promote of stealing her designs. Urban Outfitters searched for assurances that Cody Foster’s designs have been individually produced, and requested to determine the merchandise development documentation. However, what Cody Promote presented as a result of this request was “lacking and alarming,” based on Urban Outfitters, which ended the parties’ agreement and declined to simply accept additional merchandise. Cody Promote sued inside a Nebraska condition court, alleging breach of contract, and also the matter was removed towards the District of Nebraska. In September, the parties’ mix-motions for summary judgment were both granted partly and denied partly. Instead of examine the rest of the challenges before a jury, the parties moved in November. Cody Promote & Co., Corporation. v. Urban Outfitters, Corporation., Situation No. 8:14-cv-00080 (D. Neb. Sept. 25, 2015).

Father Christmas is due Town

In 2004, the heirs of composer J. Fred Coots searched for to terminate the copyright grant from the song Father Christmas is Comin’ to Town. When Coots made the first grant in 1934 towards the predecessors of EMI Records, the 1909 Copyright Act is at effect, therefore the grant was for that first 28-year copyright term, set to run out in 1962. In 1951, Coots granted EMI his renewal term too, another 28years, which resulted in the job would enter public domain in 1990. However things got complicated. Within the Copyright Act of 1976, and again within the 1998 Sonny Bono Copyright Term Extension Act, Congress extended the relevant copyright term from 56 many years to 75 years, after which to 95 years, and in addition it added non-intuitive rules regarding an heir’s termination legal rights. Further complicating things for that parties were multiple contracts and many termination notices of disputed effectiveness, including one out of 1981 the parties agreed could be – however for unknown reasons wasn’t – recorded within the Copyright Office. The District Court waded through this mess and determined the parties’ legal rights remained as controlled by the 1951 agreement, and then the grant to EMI would last the entire 95 years, until 2029. However, the 2nd Circuit reversed, holding that the 1981 agreement was the operative document. Which means that the copyright will revert to the heirs in 2016. Baldwin v. EMI Feist Catalog, Corporation., 2015 U.S. Application. LEXIS 17632 (2d Cir. 2015).

The Switch Tree

Balsam Brands introduced patent, trademark and false advertising claims against Frontgate Marketing for selling artificial Christmas trees that allegedly infringed Balsam’s “Flip Tree” and it is patented “pivot joint.” Balsam’s request a TRO was rejected since it unsuccessful to supply sufficient evidence it had become the dog owner or even the exclusive licensee from the patent-in-suit. A Legal Court also was skeptical the defendant’s “slotted hinge” mechanism was an violation from the plaintiff’s “pivot joint.” Furthermore, a legal court found no evidence that Frontgate’s marketing, which incorporated the admittedly false declare that its trees featured “patented” technology (actually, the slotted hinge wasn’t yet patented), caused the any irreparable injury to Balsam. Balsam Brands Corporation. v. Cinmar, LLC, 2015 U.S. Dist. LEXIS 154075 (N.D. Cal. November. 12, 2015).

Christmas Wishes from Mr. Foamer

New Wave Innovations, a business which makes equipment for vehicle washes, claimed priority use of the MR. FOAMER trademark, and introduced suit to enjoin using the name with a vehicle wash in Florida. However, New Wave’s assertion of priority took it’s origin from a 2011 Christmas card delivered to its customers, which portrayed a childrens favourite saying “Christmas Wishes from Mr. Foamer.” The eleventh Circuit affirmed denial from the injunction, holding that, since the Christmas card wasn’t announcing that Mr. Foamer was their new name or something new, it wasn’t a use within commerce however a mere de minimis utilization of a childrens favourite design. A Legal Court also rejected New Wave’s argument, in line with the Trademark Manual of Analyzing Procedure § 901.02, the card qualified like a “seasonal” commercial use. New Wave Innovations, Corporation. v. McClimond, 589 Given. Appx. 527 (eleventh Cir. Fla. 2015).

The Legend from the Chocolate Cane

In December 2013, an initial grader at Merced Elementary in West Covina, California, attempted to hands out chocolate canes to his classmates other family members . of faculty before Christmas vacation, throughout a time put aside for that exchange of gifts. Each cane was supported through the “Legend from the Chocolate Cane,” a spiritual message linking the chocolate towards the story of Jesus, i.e., the “J” shape for “Jesus,” the red stripes symbolizing the bloodstream shed around the mix, etc. The college walked in and avoided the distribution from the chocolate canes (a student alleged that his teacher told him that “Jesus isn’t permitted in school” the teacher flatly denies this). The child’s family complained the chocolate canes were singled-out for exclusion and pointed with other periodic messages – both secular and non secular – which had made their distance to the classroom throughout the exchange of gifts. In reaction, the college made the decision to level the arena and announced that, the coming year (2014) at holiday period, the distribution of such messages could be allowed after or before school, or during recess, although not at school. That wasn’t adequate for that child’s parents, who moved to have an injunction in front of the 2014 holidays and contended their child still could be designated. A Legal Court leaped right to the point of irreparable harm and denied the motion, holding the parents had unsuccessful to supply proof of any likely harm because the new policy hadn’t even been implemented yet. The problem moved in 2015. I.M. v. West Covina Unified School District, 2014 U.S. Dist. LEXIS 171875 (C.D. Cal. 12 ,. 11, 2014).

Sleep in Heavenly Peace

The Inn at Christmas Place is really a resort in Pigeon Forge, Tennessee where one can celebrate “Christmas every single day of the season,Inches “Sleep in Heavenly Peace” on their own branded mattresses during the night, and visit Dollywood for fun on saturday. Just like the Inn was announcing its grand opening in the year 2006, a homeowner of Vietnam registered the domain, possibly coincidentally and possibly not. Following the Inn caught wind from the registration, that was resolving to some website filled with pay-per-click links to the competitors, it filed a complaint using the National Arbitration Forum pursuant towards the Uniform Website Name Resolution Policy. The registrant didn’t react to the complaint and also the panel discovered that the website name was registered and utilized in bad belief, therefore the domain was transferred. Christmas Place, Corporation., v. Pham Dinh Nhut, 2015 NAFDD LEXIS 143 (NAF February. 16, 2015).

Merry Christmas, Ya Filthy Animal

DT Fashions of Columbus, Ohio owns the registered mark YA FILTHY ANIMAL and will a brisk business selling t-shirts along with other gear bearing the saying “Merry Christmas, Ya Filthy Animal” on Etsy. This October, another company known as The Dark Monkey filed a credit card applicatoin using the USPTO to join up MERRY CHRISTMAS YA FILTHY ANIMAL for clothing. The Dark Monkey then convinced Etsy to deactivate DT’s merchandise listings, allegedly claiming to possess an authorized mark within the phrase which, obviously, wasn’t true since the application had been filed. DT Fashions sued and searched for a purchase enjoining The Dark Monkey from making further such claims. The Dark Monkey didn’t appear, and also the Court granted the relief requested. Movie buffs may observe that the saying itself doesn’t result from either company, but instead is really a line at home Alone 2. DT Fashions v. Cline, 2015 U.S. Dist. LEXIS 158894 (S.D. Ohio November. 24, 2015).

Reyes Judicata

ACEMLA, a music performance legal rights organization, filed a copyright violation suit against Banco Popular de Puerto Rico, claiming the bank’s annual television Christmas specials (for example Queridos Reyes Magos) have used ACEMLA’s copyrighted compositions without permission for 2 decades. The 3-year limitations period had already run with regards to the older specials dating back 1995, but ACEMLA contended the claims weren’t time-barred because DVDs of individuals specials remained as on purchase at local branch offices from the bank. However, a legal court wasn’t astounded by ACEMLA’s proof of this factual assertion, which consisted of merely one unsigned affidavit, and granted summary judgment regarding these claims. The claims related up to the more recent specials, while not time-barred, were also ignored on collateral estoppel grounds apparently , a couple of other Courts had already determined that ACEMLA holds merely a non-exclusive license towards the songs under consideration, and for that reason doesn’t have standing to file a lawsuit. ACEMLA de P.R., Corporation. v. Banco Popular de P.R., Situation No. 3:13-cv-01822 (D.P.R. March. 30, 2015).

Ewe and Me, Charlie Brown

Complaintant Barbara McDonald introduced copyright claims from the Pavilion Gift Company, a wholesale manufacturer of Christmas ornaments along with other interior design. The parties had an agreement whereby McDonald presented Pavilion with Christmas-themed gift designs, and she or he would get a commission around the ones Pavilion made the decision to fabricate. She claims Pavilion breached the agreement and infringed her copyrights by utilizing a few of the designs without having to pay her. A Legal Court designed a alongside comparison from the parties’ particular works and determined that any similarities were insubstantial and restricted to “basic ideas” not paid by copyright law, for example “a Father Christmas estimate a red suit,” a cherub having a lamb (known as “Ewe & Me”), along with a “Charlie Brown-style Christmas Tree.” The Court’s opinion, which granted summary judgment for Pavilion, includes a fascinating chart with specific factual findings regarding each one of the 62 designs at issue. McDonald vKay-2 Industries, 2015 U.S. Dist. LEXIS 75205 (W.D.N.Y. June 10, 2015).

Holiday Color Altering Glitterdome Figurines Sculpture

Hua-Chen Pan, a Taiwanese designer, sued against Kohl’s Shops within the Southern District of Ohio, alleging that Kohl’s was selling knockoffs of his copyrighted work, Holiday Color Altering Glitterdome Figurines Sculpture (a Father Christmas figure having a snow globe for any belly). In regards to a year after fact discovery ended, a legal court permitted Pan to consider two additional depositions, where Pan found that Kohl’s employees received annual training on how to avoid copyright violation. Kohl’s declined to create working out materials, and Pan gone to live in compel, quarrelling that such materials could have been attentive to its prior document demands. However, once the Court requested which document request, Pan equivocated and didn’t provide any more detail apart from point vaguely to his entire group of 28 numbered document demands. The motion to compel was denied, and also the defendant’s motion for summary judgment is pending. Pan v. Kohl’s Shops, Corporation., 2015 U.S. Dist. LEXIS 92001 (S.D. Ohio This summer 15, 2015).

Christmas Tree Alarm

Marc Rasschaert invented a trunk-mounted Christmas tree alarm that measures water level and alerts you once the tree gets too dry. A Patent Examiner rejected the majority of Rasschaert’s claims, discovering that the important thing aspects of the unit were already disclosed in 2 prior patents for similar devices, including one water security alarm disguised like a Christmas ornament. The Patent Trial and Appeal Board affirmed with one exception, that exception because the mounting straps for that device weren’t disclosed within the prior art’s utilization of VELCRO? brand fasteners. Ex Parte Marc Rasschaert, 2015 Pat. Application. LEXIS 9229 (Patent Trial & Application. Bd. Sept. 11, 2015).

A Pox On Mangers

Because the 1950’s, several Santa Monica residents continues to be setting up a existence-sized multiple-scene nativity display in Palisades Park throughout the Christmas season. This group was incorporated in 1983 because the nonprofit Santa Monica Nativity Scenes Committee. In 2003, the town of Santa Monica made the decision to spread out in the chance to make use of the park for Christmas-time displays to anybody, not only the Committee, but because an operating matter nobody was interested. This Year, however, that disinterest altered when numerous (allegedly organized) atheists put on set up their very own displays. Hidden in applications, its staff folded up their sleeves and set together a lottery system to allocate the accessible space, which led to unanticipated expenses for that City as well as an atheist domination from the park that year. This Year, both Committee and also the atheists vowed to game the machine by flooding the lottery with much more applications, therefore the City declared a pox on mangers and banned these kinds of displays in the park. The Committee sued and contended that, by disallowing the Christmas display, the town was basically endorsing an anti-Christian view, therefore violating the Establishment clause from the First Amendment. The Central District of California could not agree and denied the Committee’s request an injunction. The Ninth Circuit affirmed, holding the ban was content neutral and narrowly tailored for everyone a substantial governmental interest, within this situation the eye of staying away from the cost and energy of administering the lottery each year. Santa Monica Nativity Scenes Committee v. Town of Santa Monica, 784 F.3d 1286 (ninth Cir. 2015).



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