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.

red

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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Is the Cancellation of Redskins Trademark a Step towards Change?

untitledOn Wednesday, June 18, a United States Patent and Trademark Office tribunal cancelled the Washington Redskin’s trademarks. Because Native Americans groups are in the extreme minority in the United States, the removal of company and sports team trademarks that are disparaging to Native Americans has been a slow-moving process. This particular decision came after decades of outcry from Native American groups nationwide that argued maintaining the Redskins name and trademarks allowed the NFL to unfairly profit off of the denigration of Native American peoples.

Native American groups lobbied the USPTO for decades, arguing that the trademarked name “Redskins” and the Redskins’ Indian mascot are offensive racial slurs that also imply a false connection to Native Americans. See Kimberly A. Pace, The Washington Redskins Case and the Doctrine of Disparagement: How Politically Correct Must a Trademark Be?, 22 Pepp. L. Rev. 7, 13. The Washington Redskins is cited as one of most offensive professional sport team names because the trademark, unlike the marks of teams such as the Cleveland Indians or the Atlanta Braves, speaks more to a racial derogation of skin tone than a general reference to Native Americans. Continue reading

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Attack of the Clones

Dolly“The Sixth Day,” “Jurassic Park,” “Multiplicity,” and “The Island” are all popular movies that illustrate the real potential for cloning uses in our society. These movies were all released within the last twenty years and, at the time,  they were laughed at by many as being preposterous. After the recent scientific breakthroughs in the last few years, I assure you that less people are laughing now. Just as in “Jurassic Park,” where dinosaurs were brought back from extinction through reproductive cloning, in the not-too-distant future the main attraction at the zoo could be the once extinct wooly mammoth. In the future, a person in need of a liver, kidney, heart, or any other organ transplant could have spare body parts waiting for them, as in “The Island.” Maybe you just need six more of yourself to do the simple jobs in life like in “Multiplicity.” The potential for cloning is endless and scientists have only just begun to crack the surface. The possibilities stemming from cloning are limitless, but a giant roadblock may have recently been put in place when the United States Court of Appeals for the Federal Circuit ruled in  In re Roslin Institute genetic clones, such as Dolly, are ineligible for patent protection. 2014 WL 1814014 (Fed. Cir. 2014). The holding was based on the finding that the “claimed clones are exact genetic copies of patent ineligible subject matter.” Id.

The date was July 5, 1996 when Keith Henry Stockman Campbell and Ian Wilmut successfully developed the first ever cloned mammal, later known publicly as Dolly the Sheep. U.S. Patent No. 7,514,258 (the ’258 patent) for the somatic method of cloning mammals was granted to the Roslin Institute of Edinburgh in Scotland, but U.S. Patent Application No. 09/225,233 (the ’233 application), which claimed the products of the ‘258 patent, was rejected by the Patent Office under 35 U.S.C. § 101 for lack of patentable subject matter. The claims stated:

155. A live-born clone of a pre-existing, non- embryonic, donor mammal, wherein the mammal is selected from cattle, sheep, pigs, and goats.

164. The clone of any of claims 155-159, wherein the donor mammal is non-foetal.

Roslin appealed this decision to the Patent Trial and Appeal Board who affirmed the patent denial on Feb 7, 2013, but the decision was again appealed to the Federal Circuit. Roslin made a number of compelling arguments as this case was litigated. First, Roslin argued that the ‘233 application should be issued under Diamond v. Chakrabarty, where a patent for a genetically engineered bacterium was granted because it was not naturally occurring, was created under the sun, and was made by man. 100 S.Ct. 2204 (1980). Similarly, Dolly was not naturally occurring, instead being genetically created through the use of science and newly developed technology. The prevailing counterargument was that cloning a mammal constituted a natural phenomenon that did not possess markedly different characteristics from  the original organism it cloned. Therefore, the Court held that even if something can be said to be created by man, it is still not patentable the product is an exact copy of something that is naturally occurring. Roslin did not attempt to rebut this argument that the cloned products were not identical to the original organisms. Nothing is stated in the claims or specification that suggests the cloned products are distinct in anyway and the Court held that the ‘233 application failed under 35 U.S.C. § 101 because the claims were not patentable subject matter.

Although this landmark case was decided against allowing for the patents of cloned mammals, the overall purpose of a patent to “promote the Progress of Science and useful Arts” should not be hindered. U.S. Const. art. I, § 8, cl. 8. By still granting of patents on cloning methods, there will be many more breakthroughs in this ever-growing field and these discoveries will still be protected.

 

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Copyright Cowboy – The Scott Wickberg Story [Part 5]

SWickberg

Scott Wickberg

Editor’s Note: This is part five of a five-part interview with Scott Wickberg, the first individual to be targeted by the RIAA for copyright infringement for sharing MP3s online. Scott’s story started with an early interest in music, which unfortunately progressed into the events that Scott discusses with Beyond Clause 8 in this interview. Today, Scott operates the vinyl tracking website SlyVinyl and digital marketing firm Wick Creative.

Click here to return to parts one, two, three, or four.

To listen to the audio for this part of the interview, click here.  

Beyond Clause 8: So, the big question in my mind: did you ever get your stuff back?

Scott Wickberg: (laughs) I got . . . some of it.  Obviously none of my computer [equipment], because the Oklahoma State [University] IT Department had a great time with that.  I guess, if I would have come to work with them I could have maybe used it again.  But, no, that pretty much was all gone.  I did end up getting the textbooks back. Great, thank you, it’s not like I haven’t already bought other ones, four months later.  That was really useful to me, to get those textbooks back, after the semester was ending.  I did get the guitar tuner back.  They had left it on so the batteries were out.  Which, of course, somebody had to turn it on to make sure there were no MP3’s inside of it.

BC8: Of course. (laughs)

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Copyright Cowboy – The Scott Wickberg Story [Part 4]

SWickberg

Scott Wickberg

Editor’s Note: This is part four of a five-part interview with Scott Wickberg, the first individual to be targeted by the RIAA for copyright infringement for sharing MP3s online. Scott’s story started with an early interest in music, which unfortunately progressed into the events that Scott discusses with Beyond Clause 8 in this interview. Today, Scott operates the vinyl tracking website SlyVinyl and digital marketing firm Wick Creative.

Click here to return to parts one, two, or three.

To listen to the audio for this part of the interview, click here.  

Beyond Clause 8: So you’ve got the local police kicking down your door, you’ve got the [district attorney] calling you up and threatening you, you’ve got the hot chick on MTV calling your name, you’ve got your IT guy giving you jobs, what was your overall feeling? You said you were bitter and scared you might be going to jail for a long time, but were you angry that this had happened? Of course it all dawned on you and you figured out what they were accusing you of after a while, but were you angry, were you scared? What was going through your mind?

Scott Wickberg: I was mainly angry and I got really frustrated. It was exhausting. There was not one moment that I was free from it. There was no going down and getting something from the cafeteria. was no going to class; there was no going to parties. I was never free from it. Everyone always thought I was really cool, but to me, it wasn’t really cool. I wanted to go to school. I wanted to do what I came there to do. Not only did I feel like I was going to be let down, kill all my parent’s money, and go to jail for something that I had no idea I could even go to jail for, but that feeling was compounded by the fact that it never let me go. Continue reading

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The Hobbit: A Tale Of Terrible Torts

In a hole in the ground, there once lived a hobbit…who was the victim of some terrible torts. Sure, everyone is familiar with the epic tale of Mr. Bilbo Baggins and a company of dwarves who reclaimed the Lonely Mountain from Smaug the Dragon—but that is merely one side of the story. The other side is the part that Bilbo never got to tell because the wretched dwarves fled the jurisdiction of the Shire before he could file a lawsuit and provide them with service. This is Bilbo’s story: A Tale of Terrible Torts. Continue reading

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Copyright Cowboy – The Scott Wickberg Story [Part 3]

SWickberg

Scott Wickberg

Editor’s Note: This is part three of a five-part interview with Scott Wickberg, the first individual to be targeted by the RIAA for copyright infringement for sharing MP3s online. Scott’s story started with an early interest in music, which unfortunately progressed into the events that Scott discusses with Beyond Clause 8 in this interview. Today, Scott operates the vinyl tracking website SlyVinyl and digital marketing firm Wick Creative.

Click here to return to parts one or two.

To listen to the audio for this part of the interview, click here.  

Beyond Clause 8: After [your server] was operating a couple of months, walk me through what started to happen. I guess, give me little by little the blow-by-blow of what happened, whether it be by the RIAA or whoever ended up knocking on your door in your dorm room.

Scott Wickberg: It was me and my buddy Jason Thompson, and we were oddly and ironically enough sitting in my dorm room. We’re sitting in there recording music. We were actually writing and singing and playing music. The RIAA contacted the local police, the local police got a search warrant and just came and knocked on my door. I was actually right next to the RA, he was on the other side, so I thought he was like, “shut up, your music sucks,” which would have been a fair complaint.

BC8: (laughs).

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“Epic” TV Show Investigates Copyright Authorship

Everyone’s favorite teenage private eye is back! Fans have been aching for another hit of Veronica Mars ever since the CW cancelled the primetime Untitledprocedural in 2007. The television franchise has now graduated to the silver screen, and it looks like these fans have finally found some relief with the movie’s highly-anticipated release.

Even if you’re not a self-described marshmallow, and you remain completely indifferent to the charms of Veronica’s acerbic wit and sleuthing skills, it’s hard to ignore the impact of this project. Rob Thomas, the creator of the original television show, used Kickstarter, a popular online social fundraising platform, to reach out to fans and secure funding for his film. The Kickstarter campaign succeeded in raising $5.7M, which was double Thomas’ original fundraising goal, and made Veronica Mars one of the first studio films to be (nearly) 100% crowdfunded. Such a novel fundraising model has the potential to make us reevaluate how we view authorship within the context of copyright law and movies. Continue reading

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