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Week In Review

By Martha Nimmer

Slugger Suspended

Another MVP has been SWP (suspended without pay). Last Monday, Major League Baseball Announced that New York Yankees third basemen Alex Rodriguez would be suspended without pay for 211 games, based on his alleged violation of league rules that ban the use of performance-enhancing drugs (PEDs). Rodriguez's suspension comes just two weeks after MLB suspended Milwaukee Brewers player Ryan Braun for 65 games.

Rodriguez's suspension began last Thursday, and covers the remainder of the 2013 and the entire 2014 regular season. The 38-year old Yankee announced his intention, however, to appeal his suspension. Pursuant to baseball's collective-bargaining agreement, A-Rod is permitted to play and be paid during that appeals process, which may take a few months to complete. If an independent arbitrator upholds the 211 game suspension, the punishment would be the longest non-lifetime ban in MLB history, costing Rodriguez more than $31 million in lost salary. It is unlikely that the arbitrator will weigh in on Rodriguez's appeal before November, "meaning the suspension, if upheld in its entirety, would not take effect until 2014 and then would cover part of the 2015 season, when Mr. Rodriguez will be turning 40 years old."

The MLB has also accused A-Rod of attempting to obstruct a League investigation into banned drugs. This allegation explains why the former 2003 American League MVP received a much harsher punishment than the other 12 baseball players who were also punished on Monday. The suspended players include Jhonny Peralta of the Detroit Tigers, Everth Cabrera of the San Diego Padres, Antonio Bastardo of the Philadelphia Phillies and Francisco Cervelli, another New York Yankee. Each of these 12 players must sit out 50 games, roughly the remainder of the regular MLB season. All suspended players, according to The Wall Street Journal, are connected to Biogenesis, a now closed Florida clinic that MLB alleges distributed PEDs to athletes.

http://online.wsj.com/article/SB10001424127887324809004578637683563569160.html?mod=e2fb

A Jumpstart for Crowdfunding

Beginning on September 23rd, start up companies will be able to advertise investment opportunities on television, via Facebook, Twitter, and at crowdfunding sites, such as Indiegogo. This change, signed into law in April 2012 by President Obama, comes courtesy of the Jumpstart Our Business Startups Act (JOBS). One of the goals of JOBS is to do away with "some Depression-era restrictions on how fledgling businesses raise money could boost the economy."

Currently, startups are "required to pitch investment opportunities to individuals rather than broadcast them to the masses." Under the new law, filmmakers could gain "access to $300 billion from regular Joes with net worth over $1 million who can own part of the movies they fund." Under the new law, potential investors must be "accredited," meaning an individual (or married couple) with a net worth of $1 million--excluding his/her/their primary residence(s)--or an income exceeding $200,000 in the two most recent years ($300,000 for a couple). About nine million Americans fit those parameters, the effect of which is to open "up access to a lot of capital for filmmakers," according Jason Best, co-founder of Crowdfund Capital Advisors. "There's a lot of people who are passionate about film but can't make one themselves, but they want to be a part of one. Soon, they can."

People who do not qualify as "accredited" can also participate in the new investment scheme: individuals with a net worth or annual income of $100,000 can invest 10% of their income, and individuals with a net worth or incomes less than $100,000 may invest up to 5% of their incomes, or $2,000, whichever is greater. This part of the law will go into effect in 2014. A limitation on the use of unaccredited investors is that a filmmaker may raise only up to $1 million a year per film from these investors.

The new law does have its detractors, however. Critics worry about unsophisticated investors losing money, "especially considering Hollywood's notoriously opaque accounting practices." Supporters of the new investment strategy remain optimistic, crossing their fingers that equity crowdsfunding will be a boon to the still struggling economy. Jason Best estimates that the equity crowdfunding market could reach $4 billion in four years, "with a nice chunk of that going to filmmakers." The new investment measure also has the potential to empower moviegoers and involve them in the filmmaking process: "in the future, predicts EarlyShares chairman Stephen Temes, 'The audience will see a trailer and not only say, Wow, that looks great. I'd like to see it, but also, That looks like such a great movie, I want to invest my hard-earned money into it.'"

http://www.hollywoodreporter.com/news/forget-kickstarter-how-obamas-new-600233

Nava-no

Urban Outfitters is unlikely to win an award for cultural sensitivity. Merchandise sold in Urban Outfitters stores has managed to offend African-Americans, Mexicans, Jews, Democrats, Republicans and eating-disorder awareness groups, among others. Native Americans have also joined the list. The Navajo Nation sued the hipster retailer in March of last year for the company's use of the trademark "Navajo" in connection with the sale of underwear and a flask wrapped in what was described as "Navajo Print Fabric." Other items mentioned in the lawsuit included an "Unknown Techno Navajo Quilt Oversized Crop Tee" and a "Truly Madly Deeply Navajo Print Tunic," according to court papers. Now, Urban Outfitters and the Navajo Nation have announced that mediation efforts ordered by a federal court in New Mexico have failed.

Last September, the Philadelphia-based retailer attempted to have the trademark lawsuit moved from New Mexico to Pennsylvania. Urban Outfitters argued that the New Mexico court was inconvenient for the parties, including the Navajo Nation, headquartered in Arizona. The retailer also argued that the Philadelphia court was "particularly well-versed in intellectual property matters," and that the case would, consequently, be decided more quickly. Unconvinced, U.S. District Judge C. LeRoy Hansen rejected Urban Outfitters' arguments, saying the transfer would inconvenience the plaintiff. Judge Hansen also took issue with the retailer's argument that the Philadelphia court was more experienced in handling IP disputes, adding "all federal courts are presumed to be equally competent" in federal-question cases.

The court eventually sent the dispute to mediation, which took place on July 17th. The mediation, however, proved unsuccessful. Consequently, "pretrial events are scheduled throughout 2014, with the trial set for some time after May 1 2015, according to an Aug. 2 joint filing."

http://about.bloomberglaw.com/legal-news/gsk-urban-outfitters-craigslist-intellectual-property/

Peace, Love & Trademarks

The U.S. Patent and Trademark Office (U.S.P.T.O.) has rejected Craigslist's bid to register the peace sign as a trademark. The San Francisco-based company filed three applications in March 2010 to register the peace sign for use in the company's ad services, online computer databases and interactive online bulletin boards. According to Bloomberg Law, the peace sign "was created in 1958 by British designer Gerald Holtom, for use by the Campaign for Nuclear Disarmament." The symbol is "based on the semaphore symbols for the letters N and D, standing for nuclear disarmament." Since 1958, the symbol has been used in everything from jewelry, anti-war protest signs, bellbottoms and recently, a McDonald's print ad in Finland (http://www.huffingtonpost.com/2011/05/27/mcdonalds-ad-cow-udder_n_868046.html).

The U.S.P.T.O. rejected the first registration, later issuing a second rejection after Craigslist "tried to limit its application to cover only purple-colored representations of the peace sign." This limitation, however, did not change the minds of the trademark examiners. In an opinion, the board said that adding the color purple did "nothing" to render the mark distinctive and hence eligible for trademark protection. "We find that the purple color claim is not sufficiently distinctive to transform the universal peace symbol into an inherently distinctive mark, even as to the applicant's specific services," wrote the board. The board ultimately concluded that the peace sign is a "universal symbol that retains its message in all context. As a result, it "fails to function as a mark."

Peace out, Craigslist.

http://about.bloomberglaw.com/legal-news/gsk-urban-outfitters-craigslist-intellectual-property/

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This page contains a single entry from the blog posted on August 12, 2013 7:50 AM.

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