Taylor Swift’s Aggressive IP Management

It is undeniable that Taylor Swift is a force to be reckoned with, particularly with the staggering success of her 1989 world tour. Beyond all of the awards, endorsements, and incredible album sales, Swift has been aggressive in her pursuit of intellectual property rights. While, of course, Swift and her management team have copyright protections for her songs, it is her numerous trademark applications that have recently garnered much attention.

Phrases such as “This Sick Beat” and “Nice To Meet You. Where You Been?” join previously applied-for trademarks in Swift’s portfolio. Using the USPTO’s Trademark Electronic Search System, searching Swift as owner yields 117 trademarks that have Registeredeither been registered to her, or been applied for on behalf of Swift. Due to the category system used by the USPTO for trademarks, many of the applications are for the same mark in multiple categories. For example, “This Sick Beat” accounts for 16 of 117 trademark applications. Swift joins other musicians such as Beyoncé and Britney Spears in attempting to expand her brand using trademarks. Even Swift’s rumored adversary, Katy Perry, has taken advantage of the use of trademarks for the infamous Left Shark from her Super Bowl performance.

It is unclear at this point, as to why Swift has chosen to trademark these particular phrases, whether they are a part of a larger merchandising plan or simply the singer’s desire to protect what she believes is rightfully hers. Swift has previously expressed her views on the value of her albums saying that “music is art … [and] should not be free” in her op-ed in the Wall Street Journal. Months after, Swift pulled her music from the popular digital music service, Spotify, citing the service’s ad-supported free subscription that allows people listen to her music without paying as the reason. Swift is clearly dedicated to protecting her music’s value, which explains her aggressive trademarking.

The effects of Swift’s enthusiastic embrace of intellectual property protections are just beginning. The singer is well known for her close relationships with her fans, but with her increasing number of legal protections on her work, there are bound to be some collisions. Earlier this year, several Etsy shops were sent cease and desist letters for selling Taylor Swift products, which had some fans feeling at odds with the singer. It is unclear whetherTS these were isolated incidents, or a sign of future behavior from Swift’s legal team. Swift may be running the risk of offending her fans as she defends her work, but it is clear that she is steadfast in protecting the value of her work, which after all, is one of the main objectives of intellectual property law.

Swift also finds herself on the other side the situation, facing a lawsuit by Blue Sphere Inc., an Orange County clothing company, for trademark infringement. The suit alleges that Swift used the mark “Lucky 13”, which is registered to Blue Sphere, in a promotional sweepstakes and on T-shirts. The possible effects of the suit for Swift go beyond the possibility of paying monetary relief to Blue Sphere to include damaging a brand that has been carefully developed. Blue Sphere has been looking into Swift’s endorsement deals and investigating her trademark collection, which could cause such details be public record should the suit go to trial. Lifting the veil of secrecy about an endorsement deal could benefit competitors and be a way to incentivize a celebrity into a settlement agreement. A representative of Swift even claimed that Blue Sphere’s deposition subpoena was “to harass Taylor into a settlement” after a judge refused to limit the scope of questions during the deposition.

Swift, and other celebrities, such as Michael Jordan, are navigating the complex world of business and intellectual property law during a time when IP-intensive industries are major economic force. Like any thoughtful and discerning CEO, Swift is carefully watching over her intellectual property rights in order to protect her work and grow her brand. The outcome of the Lucky 13 infringement case should provide interesting insight into Swift’s business plans and her strategies in managing her intellectual property rights.



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Incentivizing Innovation in BioTech Industries Part I: The Importance of Incentivizing Innovation

Article I, section 8, clause 8 requires Congress to enact laws that “promote the progress of science and useful Arts.”[1] What has since been termed the Patent and Copyright Clause was subject to alPicture1most no debate during the infamous Constitutional Convention and there is little evidence of the Framers’ rational for drafting the clause and understanding of the drafted clause.[2] Resultantly, there are long-running debates surrounding how to properly interpret the immortalized clause. However, it is clear from the language of the text itself that Congress has the responsibility of enacting laws that promote progress. What needs to be promoted and how those areas should be promoted is debatable, but it is clear that there need be a system to incentivize progress, to incentivize innovation. Progress, innovation is pivotal and essential to the survival and sustenance of humanity. Progress is especially important in American society, where “intellectual property intensive[, intangible,] industries support at least 40 million jobs and contribute more than $5 trillion dollars to, or 34.8 percent of, U.S. gross domestic product.”[3] In sum, the contribution of intellectual property on the American economy exceeds the entire gross domestic product of every other country excluding only the combined European Union, China, and India.[4]

Since its conception, the patent system has served as a foundation of innovation.[5] The reward of designated intellectual property rights incentivizes innovation and creativity by “allowing inventors to reap the benefits of their labor.”[6] The patent system incentivizes innovation by providing a time-limited monopoly to the inventor(s), or investors in the instance of agreed assignments, in exchange for the details of the invention being made public. Predominantly, the time-limited monopoly rights resulting from ownership of a patent provide a means by which applicants can literally procure a return on their investments made during the course of the research and development of the claimed invention.[7] The applicant for the term of the patent has the exclusive right to exclude others from making, using, and selling the patented thing.[8] Tcarrot and stickhus, the applicant who obtains a patent has the ability to block competitors. For example, the infamous battles between technology powerhouses, Apple and Samsung, depict a situation where frenemies have been attempting to siphon direct competition for years using respectively obtained patents.[9]

Because intellectual property is such a dominant portion of our livelihood, the question becomes how should we incentivize innovation? Will the patent system continue to be sufficient, especially in light of recent questions about patentable subject matter? These questions and others will be considered in Incentivizing Innovation in BioTech Industries Part II: The Rise of Uncertainty.

[1] Emphasis added.

[2] Thomas B. Nachbar, Patent and Copyright Clause, The Heritage Guide to the Constitution, http://www.heritage.org/constitution#!/articles/1/essays/46/patent-and-copyright-clause (last visited Oct. 31, 2015).

[3] Intellectual Property and the U.S. Economy, USPTO, http://www.uspto.gov/learning-and-resources/ip-motion/intellectual-property-and-us-economy (last visited Nov. 1, 2015).

[4] The World Factbook, Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/rankorder/2001rank.html (last visited Nov. 1, 2015).

[5] John Wiens & Chris Jackson, How Intellectual Property Can Help or Hinder Innovation, Ewing Marion Kauffman Foundation (April 07, 2015), http://www.kauffman.org/what-we-do/resources/entrepreneurship-policy-digest/how-intellectual-property-can-help-or-hinder-innovation.

[6] Mark F. Grady & Jay I. Alexander, Patent Law and Rent Dissipation, 78 Va. L. Rev. 305, 306 (1992).

[7] See David Henderson, The Concise Encyclopedia of Economics: Patents, Library of Economics & Liberty, http://www.econlib.org/library/Enc1/Patents.html (last visited Oct. 27, 2015).

[8] See Bauer & Cie v. O’Donnell, 229 U.S. 1, 10 (1913). See also 35 U.S.C. § 271

[9] Geoff Duncan, Why are Apple and Samsung throwing down? A timeline of the biggest fight in tech, Digital Trends (April 4, 2014), http://www.digitaltrends.com/mobile/apple-vs-samsung-patent-war-timeline/.

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Let Me Fetch an Oatmeal Stout Lawsuit?


The craft beer phenomena has ushered in an era of variety in beer flavors and some unique beer names. Craft beer fans enjoy beers with names like Kentucky Breakfast Stout (Founders Brewing Company), Plead the 5th (Dark Horse Brewing), Dragon’s Milk (Holland Brewing Company), and LMFAO Stout (Pigeon Hill Brewing Company). Pigeon Hill’s LMFAO Stout was recently the subject of a possible trademark infringement issue with the band LMFAO. I caught up with Michael Brower, one of the three cofounders of Pigeon Hill Brewing Company, to find out more.

Pigeon Hill Brewing Company was founded in 2012 and the taproom opened in Muskegon in 2014. Brower comes from a family whose involvement in the liquor trade spans from the days of bootlegging into modern liquor law. Brower first became involved in craft beer brewing in college when, like most freshmen, he discovered the horrors of bad beer and the joys of flavorful craft brews. After law school, he learned how to brew beer, met his future business partner, and got to work on opening Pigeon Hill.

LMFAO Stout was the first official Pigeon Hill Brewing Company beer and was based on an original home-brew recipe. The name of the beer was chosen through a Facebook submission contest. The winning submission, “Let Me Fetch An Oatmeal Stout,” was announced January 25, 2013. LMFAO remains a popular choice at Pigeon Hill and is usually on tap in the taproom, Brower informed me.



As my interview was conducted while the situation involving was still pending, Brower could not comment further. In August, Pigeon Hill received a cease and desist letter from the band LMFAO demanding that Pigeon Hill discontinue using the name LMFAO. The letter sparked a public debate about whether Pigeon Hill would be forced to change the name of their ever-popular stout. The band’s letter claimed Pigeon Hill’s stout was an infringement on their trademark on “LMFAO” and Pigeon Hill’s continued use of the name LMFAO would cause a likelihood of confusion for customers.


A likelihood of confusion for trademarks is analyzed under eight factors: similarity of the two marks, similarities of the goods and services involved, strength of the plaintiff’ mark, evidence of actual confusion by consumers, intent of the defendant in adopting its mark, physical proximity of the goods in the retail marketplace, degree of care likely to be exercised by the consumer, and the likelihood of expansion of the product lines. Courts usually base a trademark infringement decision on the first two factors: whether the marks are similar and whether they represent similar goods or services. The first two factors are key in determining whether a likelihood of confusion seems possible and requires further analysis.

In the case of the band LMFAO and the Stout, the marks are similar at first glance. Both marks include the letters “LMFAO,” but the beer is known as LMFAO Stout. The marks are dissimilar in that they each stand for different phrases. LMFAO Stout stands for “Let Me Fetch an Oatmeal Sout” and describes the nature of the beer. The band’s name stands for “Laughing My Freaking A** Off,” a phrase that mirrors popular internet shorthand.

LMFAO and LMFAO Stout represent different goods and services. The band produces music and performs live at concerts and events. The beer is an alcoholic beverage. While alcohol is often consumed at concerts, the goods themselves represent two different markets. The band’s music and performances are not usually associated with the craft beer scene. The band attracts a younger crowd and is associated with partying and drinking to excess. Craft beer is generally associated with young professionals and is usually consumed with a meal and with the purpose of appreciating the taste. LMFAO Stout also has a limited availability that would not place a LMFAO concert attendee in the position of confusion over whether the beer was associated with the band.

LMFAO Stout likely does not present a likelihood of confusion for consumers and the source of the beer is clear: Pigeon Hill. Ultimately, LMFAO Stout does not appear to be an infringing mark on the band LMFAO’s trademark. The situation, however, as many craft beer fans may already know, has already been resolved by the parties and LMFAO Stout will retain its name:

LMFAO Pigeon Hill

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A New Troll In Town

Green, ugly creatures living under bridges that demand payment from anyone who passes: we have all heard the fairy tales about trolls. And I think we all imagine how terrible it would be to have to deal with such creatures. In the world of patent law, patent trolls are very real and just as difficult to defeat as those in fairy tales. A patent gives the inventor property rights over the invention for a certain period of time, essentially creating a limited monopoly. This monopoly allows the inventor to charge other parties for use of their invention, thus incentivizing the creation and sharing of new ideas.Troll copy

While a clear cut definition of patent trolls does not exist, many would agree patent trolls can be described as any person or entity that does not produce the patented product or method, but charges a licensing fee to other entities that are possibly infringing on the patent or patents. A simplified example of how a patent troll is as follows: Company A (the troll) owns a patent for a widget bud does not produce said widget. When Company Be starts producing the widget (or even an arguably similar widget), Company A would demand that Company B pay a licensing fee for the widget (or face more expensive litigation). In this way, Company B is paying a “toll” to produce the product.

It is common for patent trolls to have a portfolio of patents in which they enforce. The portfolio is created when the patent troll buys patents with the sole purpose of increasing their portfolio to widen their scope of enforcement (and therefore more licensing fees). The patent trolls enforce the portfolio by sending a demand letter or providing a threat of a lawsuit against the infringers, forcing the accused to pay the fees.

Many of these patent trolls use low quality patents to collect money from companies or people that can’t afford to defend themselves in court. Many times, just the threat of the cost of litigation forces the entity to pay the troll. This extortion-like practice should be an easy fix, right? Laws could be enacted that prohibit any party from enforcing a patent if they do not produce the product. However, a solution to this problem is not that easy.

The reason fixing this problem is complicated is due to the uncertainty of what constitutes a patent troll. The definition given above is very broad, and would include institutions such as universities. Universities are awarded many patents, as such institutions are a large hub for innovation in our society. Yet universities fail to produce products from the patents. Broad sweeping legislation would eliminate universities from enforcing patents, which may limit funding for future research or have other unproductive results.

While no solution exists, Congress is currently working on passing a bill that will balance the need to eliminate unwelcomed patent trolls against the societal gains by some organizations that participate in this practice. Patent troll legislation is currently in Congress. The legislation does not broadly eliminate patent trolls, but instead tries to curb the organizations that abuse the patent system. Some of the way the bill attacks patent trolls is by increasing the requirements to file a patent lawsuit. Also, the legislation may limit the amount of discovery, reducing the cost of litigation. Lastly, it is proposed that the losing side must pay attorney fees for the side that wins. Some people believe these measures will disincentivize patent trolls from bringing frivolous lawsuits and encourage smaller entities to defend themselves in litigation.

While no overarching rule against patent trolls is plausible, the proposed solutions discussed will perhaps reduce such behavior. I believe one of the easiest ways to dampen the effect of patent trolls is to eliminate forum shopping. Because patent lawsuits can be filed almost anywhere in the United States, patent trolls can select friendly courts. A glaring example is the “rocket docket” in East Texas. It would be relatively easy to remove forum shopping, thus creating a roadblock for patent trolls to obtain their goal. While I understand the elimination of forum shopping is not the end-all in patent trolls, it would be a quick, effective step in the right direction. And while it may be a little longer until laws go into effect, one thing is clear – patent trolls must be evicted from under the bridge.

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Happy Birthday to…Who? A Famous Tune’s Copyright Clash


For using the song “Happy Birthday” in a documentary about the song’s origins, Warner/Chappell Music Inc. (“Warner”) insisted that Good Morning to You Productions (“Good Morning”)  pay a $1,500 licensing fee.  If you think that having to pay to use the song “Happy Birthday” is odd, you’re not alone.  Rather than pay for the license, however, Good Morning decided to sue Warner on the basis that Warner has unlawfully collected millions of dollars in licensing fees for the distribution, performance, and reproduction of the song.  More specifically, Good Morning is seeking a declaratory judgment that “Happy Birthday to You” has been in the public domain since 1922.  They also want to prevent Warner from claiming copyrights or collecting licensing fees related to the song, and to return fees collected from 2009 onward. If Good Morning loses, the copyright will remain enforceable until it expires in 2030.

The history of the song dates back over a century.  The tune that would eventually evolve into “Happy Birthday” was originally titled “Good Morning to All,”  and later, “Good Morning to You.”  Written in 1893 by Mildred and Patty Hill, the song was originally used to greet Patty’s kindergarten students in Louisville, Kentucky.  In 1924, “Good Morning to You” was published in a songbook with “Happy Birthday to You” printed as an optional verse.  Assumed by many to be part of the public domain, the song appeared in Broadway shows and was Western Union’s first singing telegram in 1933.  In response to such widespread use, a third Hill sister established legal copyright to Mildred and Patty’s song in 1934.  The song was then published by the Clayton F. Summy Co. (“Summy”) as “Happy Birthday” in 1935.  Summy held the copyright until 1988, when Summy was purchased by Warner.  At the time, the copyright was valued at $5 million.

On June 13, 2013, Good Morning filed a class action on behalf of “Happy Birthday” licensees dating back to 2009. Several evidentiary battles took place prior to the filing of cross-motions for summary judgment.  No ruling was made on the cross-motions, and Judge King instead ordered both parties to submit evidence addressing the claim that Patty Hill abandoned her copyright.  Investigating this claim was fruitful for the plaintiffs–they filed an ex parte application to supplement the record with new “smoking-gun” evidence that had been “mistakenly” withheld during discovery.  They claim that this evidence indicates that any copyright which may have existed expired long ago, and that as a result, the song belongs in the public domain.

The key document that the plaintiffs uncovered was a 1927 publication of “Happy Birthday” that was expressly authorized by Summy.  However, Warner argued that the document does not necessarily prove that the song belongs to the public, and at most, creates an issue of fact.  Further, Warner argued that settled Ninth Circuit precedent requires a divestive publication, characterized by an “overt act of abandonment,” in order for “Happy Birthday” to enter the public domain.  The plaintiffs responded with several examples of Patty’s conduct which, taken cumulatively, indicated that she abandoned any claim to the song’s lyrics.  Warner argued in response that Patty’s sister, Mildred, was a co-author who never abandoned her rights to the song, and that any inaction on her part is insufficient to show abandonment.


The abandonment theory of copyright has, whether intentionally or not, permitted a single entity to profit from licensing a song that rightfully belongs in the public domain.  Art, music, dance, and other forms of expression are undoubtedly interwoven into the fabric of society, and as a society that appreciates their cultural value, we should facilitate their entry into the public domain.  Although the legal apparatus of copyright protects creators from misappropriation, if not outright theft, of their expressive capacity, there is point at which a particular art form’s meaning dissociates from the original creator, and becomes part of the public consciousness.  Such is the essence, for better or worse, of living in a society that embraces and promotes expression.  Is this not an effect for which the concept of “public domain” is designed to address?  Should we not maintain a vibrant public domain in order to prevent culturally significant art forms from being controlled, monopolized, and profited off of by a single entity?

The beauty of art is that it has the capacity to evolve from individual expression to collective appreciation.  Something as small and ordinary as a kindergarten tune can grow into a permanent fixture common and beloved by all mankind.  Rather than thinking of public domain works as “orphan works” that have been “abandoned,” we should consider them as a fundamental source of human expression.  What playwright can honestly say that he was uninfluenced by Shakespeare?  Where would modern science be without the inspiration of Jules Verne and H.G. Wells?

“Happy Birthday” has been considered “far and away” the most popular song of twentieth century.  It is one of the few remaining folk songs that is passed on from generation to generation with no diminished impact.  Performed publicly and privately on innumerable occasions, it has cemented itself as a permanent fixture in the one holiday we all have in common.  To allow such a foundational part of our lives to generate thousands of dollars in licensing fees for a single entity is unacceptable.  Warner should not be permitted to collect another fifteen years’ worth of royalties on a song that is as universal as “Happy Birthday.”  If something so pervasive doesn’t belong in the public domain, then I don’t know what does.

9/30/15 UPDATE: On September 22, 2015, Judge King ruled that Warner/Chappell’s copyright is invalid. See the METAfeed for more information.

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Beam Me Up, Your Honor?

teleportRecently, I came across an article on Lawyerist.com entitled “Is Digital Court the Wave of the Future?” The article takes the position that improvements to Internet speed will eventually enable judges, lawyers, and interested parties to seamlessly hold court via digital videoconferences, but I’m not sure that this is such a good thing.

Not only does the author conclude that digital court is possible, he also maintains that digital court is preferable to modern, in-person proceedings. The notion seems shocking to me, and since the article was written in 2010, I did some research to determine whether anyone else had considered this topic. Having found nothing, I will address the arguments made by the author and introduce my counterpoints in favor of keeping hearings and court in its current state.

The author’s first point is that federal courts already use an electronic filing system (you can look on PACER), and that electronic advocacy is the next logical step. He discusses the various advantages of e-filing, including the cost savings aspects as well as noting that some state courts are also considering e-filing. In a similar vein, the author also points out that some courts permit lawyers to appear by phone and that depositions may also be taken by phone or through video conferences.

Next, the author mentions that a number of non-dispositive motions typically involve only the presiding judge and the attorneys for the interested parties. He then asks his readers if there is really any need for the necessary parties to be in the same room since the judge would still be allowed to ask questions in a digital hearing, and the attorneys could still scrutinize one another to look for weaknesses.

The author’s final point concerns the financial benefits to converting the courtroom to a digital platform. In short, no travel means fewer expenses for lawyers and judges, and no physical presence means there would be no need for security or bailiffs, all of which would act to drive court costs down and increase the citizenry’s access to the justice system.

The author concedes that the upfront costs of purchasing super-fast Internet (when it becomes available), high definition cameras, and outfitting offices (and judges’ chambers) to be online conferencing-capable would be expensive, but he is adamant that firms and clients will save money in the long run. He also acknowledges that digital courtrooms could make adjudication less formal, which may lead to sloppy lawyering; and he similarly recognizes that converting the courtroom to a digital platform would prevent the sort of public access to hearings and trials that the public usually enjoys. Ultimately, the author concludes that the positives outweigh the negatives, and he asserts that digital court may be arriving sooner than later.

I agree that it is important for lawyers to mitigate costs, especially in the wake of the Great Recession. Folks deserve access to the legal system, and legal fees should not act as a barrier to legal services. However, I think the author’s position relies too heavily on cutting costs and places convenience above practicality.

Let us begin with costs. In the introduction to the article, the author says that Google has been working on a fiber optic network that would increase Internet speeds by a hundred fold. Now, the article was written four years ago, and since that time Google has gotten Google fiber up and running in a few cities. Only residential pricing appears to be available, but the price is significantly higher than AT&T, who currently offers high-speed Internet for $25 a month, and Comcast, who charges $40 a month for high-speed Internet.Admittedly, I am not an economist, and I do not know what formula, if any, is used to calculate the increase in price as Internet speeds rise, but I find it difficult to believe that an such a superior product will not fetch a premium price–not to mention that video-conferencing equipment is remarkably expensive. Perhaps large firms will benefit enough from reduced travel to offset these costs, but it seems unlikely that boutique firms and solo practitioners with fewer clients will realize such compensation. At the end of the day, any increase in costs for the attorney will lead to an increase in costs for the client.

I also take issue with author’s position that there is no difference between arguing in person and doing so via videoconference. I spent last summer working for a judge, and I am currently working for another. I have had the opportunity to observe several full-scale trials and countless hearings, and attorneys are on an island when they are in the courtroom. Even if an attorney has been to a particular court before and argued before a particular judge, the courtroom is the judge’s domain, and an attorney is on his own once the proceeding begins. The courtroom is a great equalizer in that every attorney must rely on his own preparation and wit to advocate for his client. Eliminating that level playing field may create too great an incentive for abuse and sloppy lawyering, which will lead to potential inefficiencies in the justice system and cause harm to clients.

My final criticism is predicated on a hypothetical, and that is what if videoconferences are permitted in lieu of actual trials? The accused is guaranteed the right to confront his accuser in court, which is an emotionally powerful encounter for both parties. Is the accused exercising his right to confront his accuser and the witnesses brought against him if he is never in the same room as those people? Such insulation for the accuser could even lead to an increase in false-accusations or false testimony from witnesses who do not have to cope with face-to-face interaction. Additionally, how would such a system work with jury trials? Must all the jurors report to a particular location to then sit together to essentially watch a television program-like proceeding? Too little of the real thing produces the risk that the proceeding does not feel real at all, which once again will harm clients.

I am part of the generation that grew up with the Internet. I use the Internet everyday for a variety of purposes, but I do not think that an Internet platform should replace the courtroom. I think that the risk of abuse, sloppy lawyering, and the deprivation of due process are significant enough that they outweigh any cost-savings argument. Technology will undoubtedly change the legal profession, but the courtroom should remain sacred.

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What is the Role of Intellectual Property?

President Obama originally released his Strategy for American Innovation: Driving Towards Sustainable Growth and Quality Jobs in 2009, and has since issued several updates. However, the core theory remains the same:

Capture“The key to our success – as it has always been – will be to compete by developing new products, by generating new industries, by maintaining our role as the world’s engine of scientific discovery and technological innovation. It’s absolutely essential to our future.”

The heart of Intellectual Property (IP) is the development of new products, the generation of new industries, scientific discovery, and evolving technological innovation. IP rights were created to serve as a base incentive for the development of new products, the generation of new industries, scientific discovery, and evolving technological innovation. So in light of the recent economic events, the question becomes how can IP rights be used to ensure the future growth and success that President Obama calls for? How can IP rights be used to combat the economic challenges now faced nationally and abroad? Does the role of IP in the future differ from its traditional role?

IP rights encourage companies and individuals to invest, time and money, in the development of new products, the generation of new industries, scientific discovery, and evolving technological innovation by providing time-limited monopoly rights. This transaction is an exchange-for-bargain. The public reaps the benefits of the new inventions, but pays in the form of a limitation upon the free exchange of ideas and information because the inventor gains the time limited ability to exclude others from using, making, and selling their invention. Thus, IP focused companies inherently spend more funds on research and development because it is the company’s IP rights that gives the company value and creates profit.



Dr. Nam Pham of NDP Consulting compared 27 IP focused American companies with 27 non-IP intensive American companies and found that the IP driven companies hire more employees, of all skills levels, while the non-IP companies were cutting jobs. Moreover, the average wage for employees working for IP driven companies is 60% higher than counter-parts at non-IP companies. As such, President Obama has rightfully brought new light to the powers of Intellectual Property.

As new light is shined on IP, the traditional rationales for IP rights will stay the same; however, it need be recognized that we are entering into a new era of globalization. For the President to be successful in fulfilling the goals he outlined in his 2009 strategy release, reforms need be made in light of ongoing globalization, the statutory reforms of the Leahy-Smith America Invents Act is evidence of such.

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Can Coca-Cola Trademark Coca-Cola Life Green?

Coca-Cola has recently begun selling Coca-Cola Life in the United States. Coca-Cola Life is a “mid-calorie”soda with a calorie count that falls between Diet Coke and regular Coke. Coca-Cola Life is sweetened with a mix of sugar and stevia leaf extract, resulting in a more natural soda that contains 60 calories per 20 oz bottle. The soda is sold in bottles with a bright green label. Solid green cans of Coca-Cola Life are currently available only in the United Kingdom. The green label is a significant departure from the Coke brand color scheme of Coca-Cola red and neutral colors of black and silver for its zero calorie sodas.

Coke life


Coca-Cola has a trademark on its signature Coke brand red color. According to Qualitex Co. Jacobson Products, a color can be trademarked if it constitutes a consumer’s recognition of a particular product. In the case of the Coca-Cola red color, a soft drink consumer would recognize a soda as Coke even if the only identifier was the signature red color.


Coca-Cola Life may help Coca-Cola increase its declining sales, but the green label may not receive the same protection as the red. Courts examine many factors in determining whether a trademark exists. Of these factors, whether or not the mark identifies the source of a product creates a baseline for a valid trademark. Coca-Cola has a strong trademark on the Coca-Cola red color and the two lower calorie Coke options, Diet Coke and Coke Zero, are marketed with neutral colors, silver and black. The average Coca-Cola customer will have no association with the green Life color and have not yet developed the same kind of immediate recognition that led to the USPTO registering Coca-Cola red as a trademark. The strength and consumer recognition associated with the color trademark of Coca-Cola red makes it unlikely that the green color of Coke Life will receive the same trademark protection.

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Homemade Copyright Infringement: Examining Etsy’s Copyright Policy

big_etsy_logo2Etsy, a website founded by iospace in 2005, serves primarily as an online marketplace for homemade, handmade goods. Anyone who makes goods at home can use Etsy to open a “shop” and sell those goods on the internet. A quick browse through Etsy reveals that nearly any article of clothing or home décor can be had for the right price. Scarves, shirts, shoes, signs, and stationary are all made available by hobbyists with the work ethic to create and market their own goods. Inherently, increased availability of handcrafted merchandise seems like a good thing, but what happens when these homemade goods are direct infringement on the established copyright of another manufacturer, author, or artist?

This is precisely what happened to artist Daniel Foster. Foster, the founder of PIXSY—a website designed to alert artists to copyright infringement—was using his software to scan the web when he located one of his copyrighted photographs being used on a “homemade” mousepad offered for sale on Etsy. When Foster’s attempts to contact the culprit failed due to the nondescript contact information in the seller’s shop, Foster contacted Etsy directly. Etsy’s response indicated that it could not reveal the private information of its sellers. Specifically, Etsy’s privacy policy for sellers provides that “Etsy will not sell or disclose your personal information to third parties without your explicit consent.” Thus, Foster had no way of identifying who was stealing his work.

The obvious first question one may have about Etsy’s privacy policy is how can it blatantly protect copyright infringement? That answer derives from the Digital Millennium Copyright Act (DMCA), which states that if a media distributor complies with the Act, the distributor cannot be sued for copyright infringement. Concisely, so long as Etsy responds to DMCA takedown requests from the artist and removes the protected material from its website, the artist cannot hold Etsy liable for copyright infringement. While that obviously stops the copyrighted material from being sold, it does not give the original artist recourse for the profits lost.

The second question is a bit more nuanced. Why would Etsy protect the sellers who are directly infringing on the copyrights of others? This answer is likely twofold. First, Etsy makes 3.5% on each item sold through its website. Thus, even though Etsy will comply with a DMCA takedown request, it can continue to profit off the sellers who are infringing the copyright of others but haven’t been caught yet. Second, because Etsy is profiting directly off of its sellers, it has a vested interest in protecting them from liability.

So what should copyright holders do to protect themselves from sellers on Etsy? Until the law is changed, it is probable that Etsy will be shielded by the DMCA. Intellectual property attorney and professional photographer Steve Schlackman suggests that artists should vigilantly enforce their rights by (1) consistently scanning the web for their copyrighted images and (2) making a proper DMCA takedown request. In addition to the aforementioned PIXSY, artists can use src-img bookmarking to keep track of their images across the web. Moreover, if a company like Etsy fails to comply with a DMCA takedown request, it fails to comply with the DMCA and opens itself to copyright liability. If this occurs, authors can seek a lawsuit or settlement against the company for copyright infringement.

Unfortunately, the DMCA allows companies like Etsy to profit from copyright infringing sellers while also protecting them from liability. While Etsy is a useful and valuable entity that allows hobbyists to showcase and benefit from their talents, it raises serious concerns about the scope of the DMCA and how that law continues to apply to “media distributors.” At this point, the law’s conflict with the interests of copyright holders is a policy decision. Do we value the access to handcrafted goods at the cost of copyright infringement? Or should we change the law to strongly protect copyrights while diminishing access to homemade merchandise? That’s a decision for the legislature, and a decision that you can influence.

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“If You Can Draw It, You Can Make It” — 3D Printing Under the Copyright Microscope

 Imagine a world where instead of buying your favorite pair of shoes or your favorite book or your favorite electronic product, you can just purchase a blueprint and print it over and over.

imagesWithin the past three decades, there have been at least three technological innovations that have radically transformed the way we perceive life and existence.  In the 1990s, the advent of the Internet revolutionized digital productivity in infinite ways.  The World Wide Web fundamentally altered every area of our professional, social, economic, and cultural fabric.  Similarly, in 2004, Facebook connected the world in an unprecedented manner and redefined social media.  Further, in 2007, the release of Apple’s first generation iPhone was a groundbreaking launch, revamping not only consumer electronic products, but also our social connectivity as a whole.

The question now is: what will be the next innovation to advance the future of technology? I have a cheeky feeling that it might be three-dimensional (“3D”) printing.

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