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Weekly Issues in the News

By Geisa Balla

Louis Vuitton v. Warner Brothers

S.D.N.Y. Judge Andrew Carter dismissed Louis Vuitton's suit against Warner Brothers for the use of Vuitton's mark in the movie "The Hangover Part II." In the movie, Zach Galifianakis' character Alan arrives at the airport with a baggage cart full of luggage bearing the Louis Vuitton toile mark, as well as a matching satchel. When Ed Helms' character tries to move Alan's satchel, Alan snaps, "Careful, that is a Louis Vuitton." (except he mispronounces Louis as Lewis.) Louis Vuitton took offense to the depiction in the movie because the satchel was a knockoff by Diophy, which sells Louis Vuitton fakes throughout the United States.

Vuitton filed the lawsuit against Warner Brothers, claiming that the movie diluted its mark and violated the Lanham Act by misleading customers. Judge Carter dismissed the lawsuit, holding that Warner Brothers was protected by the First Amendment. Carter relied on the 2nd Circuit Court of Appeals decision Rogers v. Grimaldi, which established the standard for weighing trademark claims in the context of artistic expression. Under Rogers v. Grimaldi, artistic works are protected under the First Amendment, unless there is a "particularly compelling likelihood" that consumers will be misled. Carter reasoned that Vuitton's two theories--that movie viewers would believe Alan's bag as genuine, or that they would think Vuitton had approved the appearance of the knockoff supplier's product--did not overcome the Rogers v. Grimaldi standard. "First, it is highly unlikely that an appreciable number of people watching the film would even notice that Alan's bag is a knock-off," he wrote. "Furthermore, Louis Vuitton's position assumes that viewers of the film would take seriously enough Alan's statements about designer handbags (even about those he does not correctly pronounce) that they would attribute his views to the company that produced the film. This assumption is hardly conceivable, and it does not cross the line into the realm of plausibility." Carter also emphasized the humor that Alan is supposed to convey, stating that his reference to his bag "comes across as funny because he mispronounces the French 'Louis' like the English 'Lewis,' and ironic because he cannot correctly pronounce the brand name of one of his expensive possessions, adding to the image of Alan as a socially inept and comically misinformed character."


FCC Ruling

The Supreme Court of the United States ruled on June 21, 2012 that the Federal Communications commission (FCC) cannot enforce its current policies against fleeting expletives and nudity on over-the-air programs, both live and scripted. The case stemmed from 2002 and 2003 awards shows on News Corp.'s Fox Television network, when singer Cher blurted out an expletive and Nicole Richie used two expletives. The FCC had said that the network violated its indecency rules. The case also involved a seven-second nudity shot on a 2003 "NYPD Blue" episode on Walt Disney Co.'s ABC network. Writing a unanimous decision, Justice Kennedy based the decision on the Constitutional Due Process requirement, saying that the broadcasters had to be given fair notice of the policy and the restrictions. "A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required," he wrote in the 18-page opinion. Under the FCC's policy from 2001 and amended in 2004, broadcasters could be fined for airing a single profanity blurted out on a live show or for brief nudity. The decision holds that the FCC's standards were vague as applied to the broadcasts at issue in the case, but did not decide the larger question of whether the indecency policy violated constitutional free-speech rights.


Kevin Durant

Guitarist Mark Durante, known as "Durantula", filed a trademark infringement suit on June 20th against Oklahoma City Thunder star Kevin Durant and Nike. Durantula has performed under his stage name since the 1980s, and he trademarked his name in 2010. The lawsuit alleges that Durant, Nike and one of Durant's sponsors, the memorabilia company Panini America, are infringing on Mark Durante's trademark DURANTULA by using that nickname on items like basketballs and photographs and in shoe campaigns. The complaint alleges that Durante is a long-time Chicago musician. He released an album under the name Durantula and has maintained the website durantula.com for more than 10 years. Durante has asserted rights to a "common law mark" on Durantula in connection with music, recordings, apparel, T-shirts and related merchandise, as well as a "registered mark" on music, ringtones, sound recordings and the like. Intellectual Property litigator Joseph Gioconda states that Durante's lawsuit could be problematic, as it might be difficult to show that consumers will confuse a 23-year old basketball player with a middle-aged rocker. Gioconda believes that Durante will most likely rely on the theory of reverse confusion, claiming that people will believe that Durante ripped off Durant.


Dinosaur Skeleton from Mongolia

Manhattan U.S. Attorney Preet Bharara filed a lawsuit on June 18th, seeking to return to Mongolia a 70 million year old skeleton of a Tyrannosaurus Bataar, a smaller cousin of the Tyrannosaurus Rex. The dinosaur skeleton was discovered in 1946 during a joint Soviet-Mongolian expedition to the Gobi Desert. Since 1924, Mongolia has enacted laws declaring dinosaur fossils to be the property of the government, and criminalized their export. The lawsuit seeks the forfeiture of the skeleton from Heritage Auctions of Texas, the auction company that sold it for more than $1 million last month to an undisclosed buyer. In a statement Bharara said: "A piece of the country's natural history was stolen with it, and we look forward to returning it to its rightful place." Last month the Heritage Auctions of Texas agreed to help the Mongolian government investigate the ownership of the skeleton, and a state district judge in Dallas granted the Mongolian government a temporary restraining order to prevent the transfer of ownership until it was determined whether it was illegally obtained from Mongolia.


A copyright infringement lawsuit was filed on June 13, 2012 against Jay-Z in Los Angeles. Patrick White alleges that Jay-Z's portions of his 2010 book "Decoded," which is a collection of lyrics and the story behind their meanings, were lifted from White's writing. "In 2009, my personal computer was compromised, resulting in my personal work to be used in Jay-Z's book 'Decoded' which was released in 2010," White alleged in the handwritten lawsuit. "The book contains various expressions/colors/phrases which correlates to my work," he continued. "After contacting or attempting to contact the co-author, I got no reply." Author Dream Hampton and Random House Publishing are also listed as defendants in the lawsuit.


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This page contains a single entry from the blog posted on June 22, 2012 9:31 AM.

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