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Week in Review

By Martha Nimmer

More Time in the Penalty Box for Hockey Fans?

Much to the dismay of hockey fans across North America, the National Hockey League (NHL) has cancelled another round of games, this time nixing regular season games through December 14th, as well as the All Star Game scheduled for January 27, 2013. Fans fear, however, that the entire season may be the next thing on the NHL's chopping block, as was the case with the 2004-05 hockey season. This fear comes on the heels of continued disagreement between the NHL and the NHL Players' Association (NHLPA), the union for professional hockey players in the NHL. The NHLPA, according to its website, is charged with enforcing fair terms and conditions of employment for NHL members.

This latest NHL lockout stems from NHL owners' desire to reduce the players' union total hockey-related revenue percentage from 57 to 46%. The League's initial plan would also eliminate signing bonuses and would require that yearly salaries be the same for every year of a player's contract. Additionally, the proposed deal would also eliminate salary arbitration, according to reports from The New York Post.

On Wednesday, the players' union submitted its own proposal, which was subsequently rejected, leaving the owners and players at odds once again. Gary Bettman, commissioner for the NHL, commented that the two sides still remain "far apart." In this most recent proposal, the NHLPA offered to "link the players' share to revenue in the league's preferred percentage-based system," a move that some onlookers considered a substantial concession to the NHL. The lockout, however, continued.

Although the NHL and the NHLPA have yet to reach an agreement, most parties can easily agree that the latest rounds of game cancellations have resulted in millions of dollars of lost revenue. Commissioner Bettman said last week that the "damage incurred from the lockout has resulted in the league losing between $18 to $20 million by the day."

For more up to date information on this story, visit: http://espn.go.com/nhl/story/_/id/8665720/nhl-cancels-games-dec-14-plus-all-star-weekend

Fancy (and Fake?) Footwork

Earlier this month, shoe designer Charles Philip Shanghai filed suit against the Gap in federal court in Los Angeles, alleging trademark infringement and dilution. Charles Philip Shanghai, referred to simply as "Charles Philip" on the insoles of his designer slippers and moccasins, is seeking damages from Gap and is demanding that the California-based apparel company cease manufacturing and selling the copied footwear.

The Charles Philip loafers have been spotted on the feet of celebrities such as Jessica Alba, Rihanna, and other well-heeled stars, and retail for $135 to $160. In contrast, the Gap loafers cost less than $50. A notable feature of the Charles Philip shoes is the blue and white striped lining on the inside of the walls of the shoe. Previously, the Gap loafers in question sported a similar blue and white striped lining, and were referred to on the Gap website as the "Phillip Moccasin Slipper" and the "Phillip Slipper." (One wonders whether the addition of the second L in Gap's "Phillip Slippers" was intentional or a mere coincidence.) The loafers and slippers currently for sale from Gap, however, no longer have the striped lining and are not marketed under the name "Phillip."

For trademark law practitioners and fashionistas, this case should bring to mind the more than year-long legal battle wherein celebrity shoe designer and footwear demigod Christian Louboutin sued Yves Saint Laurent (YSL) over its use of red soles on the bottoms of its red high-heeled pumps. In that case, concluded in September, a federal appeals court held that Louboutin had a valid and enforceable trademark for the use of red outsoles, but only when the rest of the shoe was painted in a different color, thereby preserving YSL's right to create monochromatic red footwear.

http://www.huffingtonpost.com/2012/11/14/gap-lawsuit-charles-philip-shoes-flats_n_2130343.html?ncid=edlinkusaolp00000003#slide=1417597

Katt Williams' Onstage Meltdown

Katt Williams is no stranger to legal woes, and is now facing new legal troubles following a bizarre and disturbing onstage meltdown earlier this month in Oakland, California. When audience members arrived to the comedian's performance on November 16th at the Oracle Arena, they expected about an hour of stand-up comedy from the celebrity perhaps best known for his roles in the movie Friday After Next and the television show Wild 'N Out. Instead, Williams took off his clothes, confronted audience hecklers and attempted to fight three audience members before (mercifully) ending the show after just 10 minutes. Williams' own security team actually had to remove him from the stage. Attendees, who paid between $33 to $94 for tickets were, unsurprisingly, not happy. Luckily for audience members, Brian Herline, one of the attendees, has brought suit against Williams and promoter Live Nation Worldwide, Inc. for "failing to perform." The suit, filed on November 21st in Alameda County Superior Court, alleges breach of contract, unjust enrichment and violation of California's unfair competition law. The plaintiff, who is filing for class action status, seeks punitive damages and a refund of the ticket price paid for the November 16th performance.

Read the full complaint here: http://www.tidrick.com/Complaint-KattWilliams.pdf

http://www.huffingtonpost.com/2012/11/26/katt-williams-sued-for-non-performance_n_2191209.html

50 Shades of Copyright Infringement

Given the content of E.L. James' bestseller, 50 Shades of Grey, it was only a matter of time until someone decided to make a pornographic version of the book (although some may contend that the book itself already borders on the pornographic). Nevertheless, that did not prevent Smash Pictures, Inc. from going forward with an adult adaptation of the novel. Smash Pictures executive Stuart Wall explained the "artistic reasoning" behind his company's decision to go forward with the porn version: ""Since they are going to make a mainstream [film] of the books, too, dabbling in the adult world we're choosing to go with a XXX adaption which will stay very true to the book and its S&M-themed romance."

The Fifty Shades trilogy traces the erotic relationship of Anastasia Steele, referred to as a "naive college graduate", and Christian Grey, "a wealthy but tormented entrepreneur." The first book in the trilogy was released in the United States in April 2012, and has met with dramatic commercial success. According to the plaintiffs' complaint, worldwide sales of the books have exceeds more than 40 million copies, and all three books have been on the New York Times Paperback Trade Fiction Bestseller list. Given the books' acclaim, Universal Studios, which shelled out $5 million this year to acquire the movie rights to the series, is not pleased that Smash Pictures has made a XXX version of the book. In fact, Universal Studios and the publisher of Fifty Shades of Grey, Fifty Shades Limited, have joined in a suit to stop the "willful attempt to capitalize on the reputation of the book." Filed on Tuesday in the Central District of California, the plaintiffs allege that Smash and other defendants lifted "exact dialogue, characters, events, story and style" from the 50 Shades series. In fact, Universal and Fifty Shades Ltd. aver that the XXX adaption "is not a parody, and it does not comment on, criticize, or ridicule the originals. It is a rip-off, plain and simple." To wit, the plaintiffs' complaint contains pages and pages of side-by-side comparison of dialogue from the book and dialogue of the opening scene of the XXX adaptation. In addition to a claim of copyright infringement, the plaintiffs also raise trademark dilution, false designation of origin, false advertising and unfair competition claims, in addition to causes of action arising under California law.

Read the full complaint here: http://www.scribd.com/doc/114947086/Complaint-Fifty-Shades-Limited-v-Smash-Pictures

http://www.hollywoodreporter.com/thr-esq/fifty-shades-grey-porn-adaptation-395478#

It's A Pirate's Life For Me

And now, for something completely different: Richard O'Dwyer, 24 year old British student and founder of TVShack, has avoided extradition to the United States, at least for now. In January of this year, a judge in the United Kingdom ordered O'Dwyer's extradition to the United States to face legal action here for online piracy, specifically, profiting from links he provided on his personal website to free movies and television programs. In response to the extradition order, Wikipedia founder Jimmy Wales launched a campaign to stop O'Dwyer's extradition. If extradited, O'Dwyer faced 10 years in prison in the United States. Luckily for O'Dwyer, however, he will only have to pay a nominal fine and travel to the U.S. to execute the agreed to deferred prosecution agreement.

http://www.hollywoodreporter.com/thr-esq/richard-odwyer-piracy-suspect-wont-395165

A Case of the Cyber Mondays

Every Monday after Thanksgiving, still in a tryptophan-induced haze, millions of Americans log onto their computers to find online deals on countless products, from iPods to Coach handbags to DVDs of Homeland. A darker side to this flood of e-commerce is the growing number of companies and individuals selling counterfeit merchandise online. Luckily for consumers, however, Immigration and Customs Enforcement is on the case. In connection with cyber Monday, customs officials seized over 130 domain names allegedly selling counterfeit merchandise, such as NFL jerseys and Adobe software. According to an ICE official, "among the domain names seized was a site selling DVDs of 100 Years of Disney," despite the fact that studio was founded 89 years ago. Other seized sites include chapdvdwholesale.com, dvdhood.com, dvdboxsetwholesale.com, dvdsetshop.com and tvdvdset.com, as well as obamasell.com.

According to U.S. officials, 2012 "marks the third year that ICE has timed domain name seizures to Cyber Monday." This year, ICE officials also coordinated seizure efforts with authorities in Belgium, the United Kingdom, Denmark, France and Romania. The focus of customs officials was on seizing "sites selling pirated trademarked goods as opposed to those trafficking in streaming movies and file sharing."

http://www.variety.com/article/VR1118062618?refCatId=18

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This page contains a single entry from the blog posted on November 30, 2012 10:52 AM.

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