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Viacom files suit against Owner of “Krusty Krab”Resturant for Trademark Infringment

q-gJi5ouiNRlWho lives in a pineapple under the sea? Most kids hear this first line and they will quickly scream–SpongeBob Square Pants! The iconic cartoon is known all over the world for their notable characters and locations in the show. A Texas company is attempting to capture this love for the show in their creation of a “Krusty Krab” restaurant, but Viacom is filing suit to halt the creation.

The “Krusty Krab” is the restaurant that employs SpongeBob and makes the best burger in Bikini Bottom. The recipe to the “Krabby Patty” is secret and the main villain, Plankton, plots to steal and use it to make his rival restaurant, the “Chum Bucket”, popular. Other than being insanely cheap, Mr. Krabs keeps his recipe tucked away in a safe. SpongeBob is the fry cook for the restaurant and whips up the the best burger in  Bikini Bottom.

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IJR Capital Investments, a Texas corporation, filed the trademark for the name “The Krusty Krab” to use for restaurant services. The application current status is still being reviewed. There has been an extension of time to file a Statement of Use.

On January 26, Viacom filed suit in Texas against IJR Capital Investments The Viacom conglomerate has used the “Krusty Krab” location outside the TV show in toys, games, apparel, and motion pictures. Though, Viacom has never turned the fictional restaurant into a real-life version of itself. Viacom is arguing the use of the mark is identical in appearance and sound to theirs and this can create confusion.

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The Krusty Krab in Costa Rica

This is not the first time that restaurant from Bikini Bottom was the motivation for a real life counterpart. There was one built in Palestinian city of Ramallah by Salta Burgers and resembles the cartoon eatery in painstaking detail. Even down the flags placed on the roof and the boat-shaped doors. There was another restaurant with the name in Costa Rica, but it closed down after being open for one year.

Here is a gallery of the Krusty Krab in Palestine

Sources:

http://www.hollywoodreporter.com/thr-esq/viacom-sues-owner-krusty-krab-860480

https://www.washingtonpost.com/news/morning-mix/wp/2014/07/22/spongebobs-krusty-krab-is-opening-in-palestine/

http://www.hollywoodreporter.com/live-feed/photos-krusty-krab-restaurant-open-719889

Krusty Krab Restaurant Opens: ‘Spongebob’ Fans Want To Go ‘ASAP’

http://www.eater.com/2016/1/30/10876928/viacom-lawsuit-against-krusty-krab-restaurant-houston-ijr-capital-investments

http://www.tripadvisor.com/Restaurant_Review-g644053-d3242927-Reviews-The_Krusty_Krab-Santa_Elena_Monteverde_Province_of_Puntarenas.html

http://tsdr.uspto.gov/#caseNumber=86470477&caseType=SERIAL_NO&searchType=statusSearch

 

Give Me A Break: Nestlé loses Trademark battle for the ‘four fingered’ shape

kitkat4.4_2Many consumers have come to know Kit Kat bars for their unbelievable crunch and design of the four bars with breakable ridges that let you enjoy each piece separately or to share with a friend. The ‘four fingered’ candy bar design has been deployed since 1935 when it was sold in Britain by Rowntree & Co. At that time, the bar was called Chocolate Crisp. Since, Nestlé has turned the design into a recognizable shape that is known by many people, both old and young. Nestlé purchased Rowntree & Co in 1998.

In 2010 Nestlé filed for the trademark of the four-fingered design but met opposition from rival chocolatier and candy maker Cadbury who opposed the trademark in fear of Nestle having a monopoly. The two chocolate makers have had previous battles in the past as Nestlé prevented Cadbury for using a particular shade of purple used in the packaging of Dairy Milk. Nestlé’s application was initially granted, however, Cadbury challenged and the case was removed to the High Court and the CJEU in Britain where the ‘four fingered’ shape was put through further scrutiny.

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Nestle has had success in the past with trademarking shapes of their chocolate. They have successfully trademarked the shape of their Walnut Whip. However, this time they were not as fortunate as the trademark for the ‘four fingered’ shape was denied. The European court of justice ruled that the KitKat’s shape was not distinctive enough for consumers to associate it with the chocolate covered wafer.

In Mr. Justice Arnold’s written opinion he ruled that consumers relied on the name of KitKat and the pictorial marks used in relation to the goods. He said, “they associate the shape with KitKat (and therefore with Nestlé), but no more than that.” He went on to rule that Nestlé had not demonstrated that consumers have come to rely on the shape mark in order to distinguish the trade source of the goods at issues.

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Sharon Daboul, a trademark attorney at law firm EIP who was not involved in the case, said “The question is whether a consumer would look at the four-finger chocolate bar and straight away know it was a KitKat, without the logo or wrapper. Consumers will tend to be influenced by a brand name and the outer packaging of a product rather than its shape alone, so the threshold for registering shapes as trademarks is high.”

Nestlé is appealing the decision.

Sources:

http://money.cnn.com/2016/01/20/news/kit-kat-trademark-nestle-cadbury/

http://www.theguardian.com/business/2016/jan/20/kitkat-nestle-loses-high-court-bid-trademark-shape

http://www.ipwatchdog.com/2015/09/19/european-court-denies-nestle-four-fingered-kitkat-trademark-after-cadbury-objection/id=61694/

The Talking Dead: Former “Walking Dead” Director, Writer, and Producer Calls Out Exec’s In Released Deposition

Rick Grimes (Andrew Lincoln) - The Walking Dead - Season 4 _ Gallery - Photo Credit: Frank Ockenfels 3/AMC

Frank Darabont, former director, writer, and executive producer of AMC’s hit TV series the “Walking Dead” is claiming that the channel was cutting the budget of the show, pocketing tax credits, and only coming to the set for short stints of time before “going back to their air conditioned New York Offices.” In the recently released deposition Darabont held nothing back as he continued to slam the network for not receiving his “fully vested” stake in the profits from AMC’s mega-hit.

Darabont and his CAA agents have been in litigation for years with AMC as Darabont has been seeking portions of the shows profits as well as profits of the TWD spin-off “Fear the Walking Dead.” Darabont’s original claims where also for breach of contract and wrongful termination. AMC claims that Darabont has been rightfully compensated for his participation in the 1st and 2nd seasons of the show.

Over the course of the litigation the battle has gotten messy at certain points, even bringing in other AMC hit shows into the fold. The plaintiffs were successful in their discovery motions to look into other licensing agreements from other AMC hit shows Mad Men and Breaking Bad as the plaintiffs claim that AMC treats shows from 3rd party studios more favorably when it comes to licensing and distributing. Of the three shows TWD is created by AMC studios. The plaintiffs claim that AMC engaged in “self-dealing” to foster artificially low license fees for TWD to get out of contractually obligated profit payments.

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(Frank Darabont: Ex-Director, Writer, and Executive Producer of the Walking Dead TV Series)

The litigation has seen amended complaints and now the unreleased deposition is a new headline in this heated battle between ex-director and the network. Darabont, a writer on The Shawshank Redemption, was canned from TWD after its first season and during production of the second season. Darabont was an integral part in bringing the adapted comic from the pages to the small screen. TWD has been AMC’s flagship show after it received the highest debut of any network show in history and continues to be a leader in ratings in its time slot and overall out of any show not only currently on tv, but in the history of tv. Other claims from Darabont in the deposition include mistreatment of the staff and crew as they work hard in the sticky Atlanta (where the show is filmed) weather as the execs pocket the tax rights from filming in Georgia.

For now it seems like the lengthy litigation will continue to commence. The Walking Dead is now in its sixth season While ratings have dipped somewhat, it has still held firm to its core fanbase and remains to be a hit on tv, pop culture, and the comic following. TWD has also expanded into a successful franchise as it has also birthed a series of successful episodic video games that have been critically acclaimed.

http://www.hollywoodreporter.com/thr-esq/walking-dead-creator-frank-darabonts-852491

‘Walking Dead’ Lawsuit: Frank Darabont & CAA Bite AMC Back Over Contract Claims

http://www.hollywoodreporter.com/thr-esq/frank-darabonts-walking-dead-lawsuit-718276

 

Supreme Court Revokes Bieber Usher Song Copyright

On June 18th, 2015 the Fourth Circuit revived a previously dismissed copyright infringement action against recording artists Justin Bieber and Usher Raymond IV. In a 3 – 0 decision, the court found in favor of plaintiff-appellants on grounds that a reasonable jury could have found plaintiff’s and defendants’ songs intrinsically similar.

The subject of the case is a song titled “Somebody to Love”. Written and performed by Virginia R&B artist Devin Copeland and Mareio Overton in 2008. Copeland subsequently registered a copyright for this song under the album title “My Story II”.

In late 2009, Copeland entered into discussions with Sangreels Media regarding promotion of the My Story II album. Among Snagreels’ clients that sampled Copeland’s song was Usher Raymond IV. Usher recorded samples based on Copeland’s “Somebody to love”. He never commercially released these samples. Instead, he forwarded Copeland’s song to his protégé, Justin Bieber. Based on Usher’s sample, Bieber recorded his own version of “Somebody to Love” and released it in his debut album, My World 2.0, in spring of 2010. Beiber’s “Somebody to Love” peaked at number 15 on the U.S. Billboard Hot 100 Chart.

In an infringement suit, the copyright plaintiff bears the burden of proving two forms of similarity: Extrinsic and intrinsic. Extrinsic similarity denotes an “objective match between the copyright-protectable elements of an original work and a purported copy”. Intrinsic similarity is a subjective judgment on essential aesthetic of the works, which asks whether the intended audience of two works would experience them as “similar in overall effect”. Failure to establish either warrants dismissal of plaintiff’s complaint.

Based on these standards, the district court dismissed Copeland’s complaint. Despite the songs share some similarity, the “mood, tone, and subject matter” of the songs differ “significantly”.  This is to say, the two songs are of different genres and this fact alone is distinct enough to dissolve intrinsic similarity. This is also the core issue, whether Copeland, Usher and Bieber’s songs are intrinsically similar.

To assess intrinsic similarity, the court first identified the intended audience. Intended audience’s impressions of a work is important because it effects a recording artist’s decision during a commercial release of a song. As such, the “intended audience” may not necessarily be the initial buyer or recipient of the original song.  The court instead, “may rely on the impressions of third parties”. The Fourth Circuit found that in this case, the target audience is the general public because it is their impression that recording artists must keep in mind when releasing songs commercially.

The question then becomes whether Copeland’s, Usher’s and Bieber’s songs are intrinsically similar from general public’s view. The Fourth Circuit first grouped Usher’s demo with Bieber’s album release. Between the two songs, with exception of the higher pitch sang in Usher’s samples, the two are identical. The two share the same beats, melody, chorus, and style. Accordingly, the court condensed these two versions as if they were one.

Grouping the two songs together, the Fourth circuit then compared them collectively with Copeland’s song. Where the Fourth Circuit differed with the district court is that the former did not find difference in overall “aesthetic appeal” a dispositive factor in determining intrinsic similarity. Instead, the Fourth Circuit argued that although difference in genre accounts for some difference, it is the choruses of songs that are most important.  The court reasoned that if genre alone is dispositive under copyright law, then “nothing would prevent someone form translating, say, the Beatles’ songbook into a different genre, and then profiting from an unlicensed reggae or heavy metal version of ‘Hey Jude’ on the ground that it is different in ‘concept and feel’ than the original”. Specifically, the court found repetition of “somebody to love” and identical melodic rhythms between Copeland’s and Usher/Bieber versions of the song.

The court then disposed the notion that substantial intrinsic similarity is purely quantitative. Copeland’s song has different vocal melodies and beats as well as different lyrical content with the Usher/Bieber versions. While the Copeland verses weep of the end of a relationship, the Usher/Bieber verses convey optimism of the start of a relationship. Quantitatively, “points of dissimilarity may well exceed the points of similarity”. Instead, the court cites to precedent case law that states: “substantial similarity can be found where the works share some especially significant sequence of notes or lyrics”.

The chorus is important because it is usually the “hook” that keeps a listener coming back to the song. The same hook that listeners recognize or hear in their minds when a song title is mentioned. The court compared the Copeland and Usher/Bieber songs and concluded that the melodies in the two are the same. The most obvious, the court observed, is the shared chorus mirrored in the songs’ titles: “I need somebody to love”. Accordingly, the similarities in chorus here are sufficient for a finding of intrinsic similarity. This case is remanded to district court for further proceeding.

  • Kai Y. Gao

Sources

http://www.law360.com/ip/articles/669842?nl_pk=dc884a53-bf76-4d1c-8e8a-27d3498ed71c&utm_source=newsletter&utm_medium=email&utm_campaign=ip

http://www.reuters.com/article/2015/06/18/us-bieber-usher-copyright-lawsuit-idUSKBN0OY2E120150618

Copeland v Bieber No. 14-1427 United States Court of Appeals for the Fourth Circuit.

Supreme Court Ruled in Favor for Same-Sex Marriage Nationwide

In a 5-4 ruling, the Supreme Court on July 26th ruled that same-sex couples can now marry nationwide. Justice Anthony Kennedy wrote for the majority while the four conservative justices wrote the dissent.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than they once were,” Kennedy wrote.

The U.S. is now the 21st country to legalize same-sex marriage nationwide. Married same-sex couples will now have the same legal rights and benefits as married heterosexual couples. Thousands of same-sex marriage supporters have been celebrating just moments after the ruling.

Sources:

http://www.cnn.com/2015/06/26/politics/supreme-court-same-sex-marriage-ruling/

Obamacare Upheld By Supreme Court Ruling For a Second Time

In a 6-3 decision the US Supreme Court upheld a key portion of President Barack Obama’s healthcare law. The court ruled that the law made subsidies available for people in all 50 states and found that it did not apply just to those who bought insurance through a state exchange.

The income-based subsidies are crucial and allow health insurance to be more affordable thus reducing the number of uninsured Americans

The Affordable Care Act, often known as Obamacare, set up a federally run insurance exchange which enabled Americans who were not covered by their employers or other governmental agencies to buy health insurance.

If the law was overturned, 6.4 million Americans would have been risk of losing aid.

Sources:

http://www.bbc.com/news/world-us-canada-33269991

Judge Rules Uber Driver Is Considered An Employee

The California Labor Commission ruled that Uber driver, Barbara Ann Berwick, is an employee as opposed to a contractor. If this ruling is applied to all Uber drivers this could potentially mean higher costs for the app-based taxi service, including extra costs such as social security and unemployment insurance. Ms. Berwick will be awarded more than $4,000 of expenses. The award includes reimbursable business expenses such as tolls, parking citations, mileage, legal fees and interest.

Uber states that the ruling only applied to this one driver and will not affect other Uber drivers. Five other US states have ruled Uber drivers as contractors. Uber is appealing against this ruling for Ms. Berwick.

Uber drivers have complete flexibility and control. They have the ability to earn their living from multiple sources including other ride sharing companies. The drivers also pay for their own cars, insurance, gas, tolls and general costs of operating and are paid 80% of each fare.

Uber is currently operating in more than 50 countries and is worth an estimated $50 billion making it one of the world’s most valuable start-up companies.

sources: http://www.bbc.com/news/world-us-canada-33171508