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Week in Review

By Martha Nimmer

Infringing Ice Cream

The arrival of warm weather signals the return of ice cream trucks, and this spring, the rising temperatures have brought with it a trademark lawsuit between popular ice cream truck company Mister Softee and newcomer Master Softee. The New Jersey-based company Mister Softee claims that Master Softee, based in Long Island City, is attempting to sell a "knock-off version" of the Mister Softee brand, which has been in business since 1956 and operates across 18 states. The suit also states that Master Softee owner Dimitrios Tsirkos used to oversee operations of Mister Softee trucks in Queens, and even owned 16 of the Mister Softee vehicles. Tsirkos ended up founding his own ice cream truck fleet in February, prompting Mister Softee company owner Jim Conway to file the instant trademark action. Employees of Master Softee contend, however, that the name of the company is not important, and that customers are attracted to the new company because of the employees: "Mister Softee does not make this business. It is the people -- and the people work hard," said one Master Softee driver.

The similarities between the two companies extend beyond just their names. Mister Softee's slogan, painted across the hoods of their trucks, is "The Very Best," and Master Softee's slogan, also painted across the truck hoods, is "The World's Best." Both companies' trucks also sport the same white paneling and blue trim, and both display photos of the ice cream treats for sale. It becomes even more confusing when you look at the companies' mascots: Mister Softee's is a scoop of vanilla ice cream served in a grinning cake (or plain) cone, dressed in a blue jacket and red bow tie. Master Softee's mascot is also a smiling vanilla ice cream cone wearing a blue jacket and red bow tie, but this scoop of ice cream has rainbow sprinkles on its head and is served in a waffle cone.

Judge Laura Swain is expected to decide this month whether the Master Softee trucks infringe the Mister Softee trademarks. The plaintiff is also seeking, according to New York Daily News, "a six-figure payout to cover unpaid licensing and marketing fees Tsirkos still owes."

Read more: http://www.nydailynews.com/new-york/queens/mister-softee-master-softee-article-1.1774733#ixzz319RtWv8f

Finding a New CEO for the Clippers

Following the announcement last week that LA Clippers owner Donald Sterling will be banned from the National Basketball Association (NBA) for life, the NBA said last week that it would appoint a new CEO to run the team. Mike Bass, the Executive Vice President of Communications for the NBA, remarked, "[t[he best way to ensure the stability of the team during this difficult situation is to move quickly and install a CEO to oversee the Clippers organization. The process of identifying that individual is underway." Shelly Sterling, co-owner of the team and the estranged wife of Donald Sterling, released a statement on Saturday before Game 7 of the Clippers' first-round playoff series against the Golden State Warriors. In the statement, Shelly Sterling voiced her support for the NBA's decision to appoint a new team CEO. "I spoke with Commissioner Adam Silver this week to tell him that I fully supported his recent swift and decisive action. We also agreed at that time that, as a next step, both the league and the team should work together to find some fresh, accomplished executive leadership for the Clippers. I welcome his active involvement in the search for a person of the utmost character, proven excellence and a commitment to promoting equality and inclusiveness." However, Shelly Sterling's statement did not mention the likely sale of the basketball team.



Killing the Cliffhanger

Gossip blog Gawker, no stranger to the courtroom, has settled a federal copyright lawsuit alleging that the website "spoiled ratings for Dr. Phil's program on the Manti Te'o hoax by posting unaired footage" of the television show. Last May, producer Peteski Productions sued Gakwer Media for copyright infringement, claiming that the website's unauthorized online postings "spoiled the cliffhanger to its two-part interview with admitted hoaxer Ronaiah Tuiasosopo." In the first episode of the interview, Phil McGraw--"Dr. Phil"--challenged Tuiasosopo to recreate the voice he used during the numerous phone calls to Te'o that convinced Te'o that he had a long-distance girlfriend. Tuiasosopo refused, but viewers were encouraged to "tune in" for the next day's episode because the hoaxer "might do the voice" the following day. The production company alleges, however, that Gawker subsidiary Deadspin posted the video of the second show to the Deadspin blog "not later than 9:30 a.m. Eastern Standard Time, hours before the Dr. Phil Show aired to over 98 percent of its viewers." Gawker and Deadspin also encouraged readers to "tune in!" to the second episode, which Peteski Productions avers, "apparently meant for viewers interested in the Tuiasosopo interview to 'tune in' to Deadspin instead of Dr. Phil." The plaintiff said that Gawker's "theft of the core of episode 2 caused the ratings to decline substantially because the result of the 'cliffhanger' was no longer in doubt."

Late last month, however, Gawker and Peteski Productions stipulated to dismissal of the case with prejudice. U.S. District Judge Michael Schneider approved the deal on Monday. Terms of the settlement have not been disclosed.



More good news for Gawker. On Wednesday, famed director Quentin Tarantino withdrew his copyright infringement lawsuit against the gossip blog, just one week after refiling the suit against the company for leaking his script for "The Hateful Eight". In a filing in U.S. District Court in Los Angeles, the director's attorneys said that Tarantino "voluntarily dismisses the above-captioned action, in its entirety, without prejudice." Tarantino is free, however, to sue Gawker again: "[t]his dismissal is made without prejudice, whereby Plaintiff may later advance an action and refile a complaint after further investigations to ascertain and plead the identities of additional infringers resulting from Gawker Media's contributory copyright infringement, by its promotion, aiding and abetting and materially contributing to the dissemination to third-parties of unauthorized copies of Plaintiff's copyrighted work," the filing read.

Tarantino's fight with Gawker began in January when the director sued the website over posting a story on its Defamer site, titled "Here Is the Leaked Quentin Tarantino Hateful Eight Script," with a link to a third-party website that displayed the 146-page script. U.S. District Court Judge John F. Walter dismissed Tarantino's suit against Gawker on April 22nd, ruling that attorneys for Tarantino had failed to plead facts "establishing direct infringement by a third party" or facts that showed that Gawker had either "caused, induced or materially contributed" to the alleged direct infringement. Judge Walter said that Tarantino could refile the suit by May 1st, however. Tarantino took up the judge's offer, and sued Gawker Media on May 1st for direct copyright infringement. Now, however, it appears that the "Kill Bill" and "Pulp Fiction" director is taking a break from the courtroom.


Snapchat Settles

The Federal Trade Commission (FTC) announced on Thursday that popular photo messaging app Snapchat had agreed to settle charges that the company had deceived users about its service. The commission says that the photo messages were, in the words of The New York Times, "significantly less private than the company had said."

In the age of selfies and disappearing digital privacy, the need for a photo messaging service that quickly deleted photos only seconds after a user received them was evident. Enter Snapchat, an app developed by two Stanford University students and first released in September 2011. With the app, users can take photos, record videos, add text and drawings, and then send their creations to a list of chosen contacts. The users designate a time limit for how long recipients can view the "snaps;" the current limit is 1 to 10 seconds. After that period, the snaps will be hidden from the recipient's device, deleted from Snapchat's servers, and thus "disappear forever," in the words of Snapchat.

The ephemeral nature of the snaps is what made Snapchat popular among users who wanted to share photos and videos freely, but without fear of the content coming back to haunt them later. According to the FTC complaint, however, Snapchat snaps may not, in fact, "disappear forever." The complaint states that snaps can actually be saved in several ways: "[t]he commission said that users can save a message by using a third-party app, for example, or employ simple workarounds that allow users to take a screenshot of messages without detection." The complaint also accused Snapchat of deceiving customers about the app's security measures. Despite Snapchat's earlier insistence that it did not collect user information, the FTC complaint revealed that the company transmitted user location information and saved users' address book contacts.

As part of the settlement, Snapchat may not misrepresent how it protects user information and privacy. The app must also implement a "wide-ranging privacy program that will be independently monitored for 20 years." Noncompliance with the settlement agreement could result in the imposition of fines against the company.

Remember: think before you snap.

Read the FTC press release here: http://www.nytimes.com/interactive/2014/03/14/technology/snapchat-ftc-settlement.html?_r=0


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This page contains a single entry from the blog posted on May 9, 2014 4:25 PM.

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