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Week in Review

By Martha Nimmer

Legal Louboutins

The Second Circuit Court of Appeals has told shoe designer Christian Louboutin to back off. Late last week, the three judge panel ruled that the footwear demigod cannot interfere with the decision of the U.S. Patent and Trademark Office (USPTO) to limit the trademark protection for his coveted red-soled pumps.

The Louboutin legal drama began in 2011 after the shoe designer sued French fashion house Yves Saint Laurent (YSL) following his release of monochrome women's shoes, which included a red pair with red soles. Louboutin had been painting the soles of his shoes red since 1992, and trademarked the red sole in 2008. A federal judge in Manhattan ruled for YSL, holding that a single color cannot serve as a trademark in the fashion industry. Happily for Louboutin, the Second Circuit later concluded in September of last year that Louboutin's red sole "acquired limited 'secondary meaning' as a distinctive symbol that identifies the Louboutin brand." The clerk of the court then issued a mandate to the USPTO to "make appropriate entry upon that Office's records to reflect that U.S. Trademark Registration No. 3,361,597, held by Christian Louboutin and dated January 1, 2008, is limited to a red lacquered outsole on footwear that contrasts with the color of the adjoining ('upper') portion of the shoe." Unhappy with that directive, Louboutin filed a letter with the clerk of the court, requesting a modification of that mandate. Unswayed, the Second Circuit ruled last week to deny the motion for modification.

In denying Louboutin's motion, the court cited four factors underlying its decision not to recall the mandate: "[w]e have previously identified four factors to consider in determining whether to recall a mandate: (1) whether the governing law is unquestionably inconsistent with the earlier decision; (2) whether the movant brought to the Court's attention that a dispositive decision was pending in another court; (3) whether there was a substantial lapse in time between the issuing of the mandate and the motion to recall the mandate; and (4) whether the equities 'strongly favor' relief." The designer, according to the court, "made no showing that any of the factors favor recall and modification of the mandate. In short, this matter does not present the 'exceptional circumstances' required to grant such a request."

Read the decision here: http://www.entlawdigest.com/2013/03/13/ysl.pdf


Stopping Sexual Orientation Bias in the NFL

New York Attorney General Eric Schneiderman has asked the National Football League (NFL) to take steps to ensure that its teams do not discriminate against players or recruits based on their sexual orientation. Schneiderman stated that he sent a letter to NFL Commissioner Roger Goodell about the issue after three prospective players said that they had been asked questions relating to their sexual orientation. University of Colorado tight end Nick Kasa stated in a radio interview last month that several teams at an NFL scouting session asked him personal questions possibly aimed at determining his sexual orientation. University of Michigan quarterback Denard Robinson and Michigan State University running back Le'Veon Bell have alleged similar actions, writes ESPN.

The NFL, headquartered in midtown Manhattan, said in a statement last month that it planned to investigate one recruit's claims of sexual orientation bias, adding that teams are "expected to follow applicable federal, state and local employment laws." According to the Attorney General's letter, least 20 of the league's 32 teams are in jurisdictions that prohibit discrimination in hiring and employment based on sexual orientation. This, however, does not go far enough, according to Schneiderman, who wants the NFL "to issue a public statement and leaguewide [sic] policy that any form of discrimination or harassment on the basis of sexual orientation by teams against recruits or players 'constitutes a violation of state, local and, in some cases, contractual law, and will not be tolerated.'" Schneiderman has asked for a meeting with NFL officials to discuss the issue.


The Metropolitan Museum of Deceptive Practices?

Meanwhile, on the Upper East Side, the Metropolitan Museum of Art (the Met) has found itself in the middle of a legal battle over admission fees. A class action filed earlier this month in New York County Supreme Court alleges that the Met tricks visitors into paying admission fees to visit the museum, despite a 19th-century agreement with New York City that the museum would follow a no-fee policy, in exchange for a perpetual, rent-free lease of the building situated on Fifth Avenue. The agreement contained no mention of rent, according to the complaint, but required that the museum be open free of charge at least four days a week. Those terms were later expanded, but after the museum expressed concerns about costs, lawmakers set the free-admission schedule at five days a week, including Sunday afternoons, plus two evenings a week. According to the complaint, this agreement was meant to provide access to the arts for citizens "without regard to financial means."

Now, lead plaintiff Filip Saska claims that the museum has become "an expensive, fee-for-viewing, elite tourist attraction, where only those of financial means can afford to enter this publicly subsidized institution situated on prime city-owned land." The plaintiffs claim that the "unlawful and deceptive" fees paid by the class number in the tens of millions of dollars annually. The complaint also states that the museum violates state consumer protection law with signs and cashier stations that lead visitors to believe they must pay to enter.

Specifically, the complaint points to a $25 admission fee posted in a large, bold font at the main entrance of the Met, while the word "recommended" is in "tiny, unbold print." Cashiers, the plaintiffs allege, are trained "to pressure and embarrass" visitors into paying the stated admission fee. "Nowhere in the building is any visitor advised that admission to the museum exhibition halls is free for most days of each week," the complaint states. The class also claims the Met uses deceptive practices online, specifically on its website and websites of third-party vendors, where advance-purchase admission and package deals are advertised.

The class seeks an injunction, costs and actual damages, and an end to admission fees on free days and any activities that "insinuate that payment of any sum is required" on those days, such as signs, brochures and promotions." The plaintiffs also want the museum to promote its free days in New York's economically disadvantaged communities.


Read about an earlier suit here: http://artsbeat.blogs.nytimes.com/2012/11/15/met-museum-being-sued-over-admission-fees/

"Argo F Yourself"

Sorry, Ben Affleck, but it turns out that Iran isn't so keen on Argo. The film, which won the Oscar for Best Picture just a few weeks ago, depicts the harrowing escape of six American embassy staffers from Iran following the 1979 attack on the U.S. Embassy in Tehran. The six staffers were hidden by the Canadian ambassador to Iran, and escaped from the country by pretending to be part of a Canadian film crew scouting movie locations for a sci-fi flick. Unsurprisingly, Iranian officials have dismissed Argo as pro-CIA, anti-Iran propaganda.

The decision to file suit came after a group of Iranian cultural officials and film critics viewed the film in a private Tehran theater late Monday. Cultural officials dismissed the movie as a "violation of international cultural norms," although the statement did not specify which cultural norms. A statement issued after the screening also said that "awarding an anti-Iran movie is a propaganda attack against our nation and entire humanity." The press release did not specify how the movie was allegedly unrealistic, but Iranian officials have stated that the film depicts Iranians as "too violent." Luckily for fans of sanity and free speech, it remains unclear what specific claims Iran could raise against Argo's producers, and what court the country could turn to for relief. According to several media outlets, French lawyer Isabelle Coutant-Peyre is in Iran for talks with officials over how and where to file the lawsuit.


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This page contains a single entry from the blog posted on March 14, 2013 3:51 PM.

The previous post in this blog was SOFA Entertainment, Inc. v. Dodger Productions, Inc. .

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