Because euphemisms for the female body and restaurants just go so well together.

[This is largely a comment to Alfred’s post below, but it’s long and I wanted to include some links so put it here as a separate post.  MC]

Perhaps the lawsuit Alfred discusses below could also be filed under “karma”… Last November, Twin Peaks filed a complaint here in the Northern District of Texas alleging that another restaurant, called Northern Exposure (yes, really) infringed upon its trademarks and trade dress.  The complaint alleges that the individual who opened the Northern Exposure restaurant in Fayetteville, Arkansas had been in negotiations with Twin Peaks to open a franchise, and then decided to open his own restaurant with the same trade dress but under a different name.  The parent company for Northern Exposure is Grand Tetons (I feel like I want to add a ‘yes, really’ after every sentence).

Alleged infringement included the Twin Peaks mark “EATS – DRINKS – SCENIC VIEWS,” and its trade dress – a mountain wilderness lodge theme, a name chosen to evoke a double entendre (the wilderness and physical attributes of the servers), and a logo that includes “two snow-capped mountains.”  Twin Peaks also claimed that Northern Exposure copied its servers’ outfits (uniforms? costumes?), which consist of plaid shirts tied at the center of the bust line and short shorts.  Northern Exposure, on the other hand, claimed that women in the snowy wilderness always wear plaid shirts tied at the center of the bust line and short shorts.  (Just kidding, as to that last point.)

A clerk at the District Court in Dallas told me that the case was dismissed with prejudice in April upon agreement of both parties.  According to Yelp and Urbanspoon reviews, the Northern Exposure restaurant was open as recently as August, so any settlement must not have included the closure of the Northern Exposure restaurant.  (My favorite review: “The food is good and the girls are hot. $1 drafts.”)

It is slightly disturbing to me that while there are a few franchises of Twin Peaks in other states, we in Texas can boast a total of twelve locations.  Of course, most of the Taco Cabana restaurants are also in Texas.  Judge us not by our culinary interests, I say, but by our appreciation of restaurant trade dress.

Alfred mentions the possibility of a dilution claim against Twin Peaks, an issue that certainly extends its relevance to the Twin Peaks v. Northern Exposure controversy.  I would like to have been a fly on the attorneys’ wall to hear the debate over whether to include “copying our use of the name of a quirky and popular TV show filmed partly in Snowqualmie, WA in the early 1990s” in the complaint.

Perhaps this is an issue that only trademark geeks and David Lynch might appreciate?

Another Way to Understand Twilight and Authors

Apparently Stephenie Meyer, the author of the Twilight series, started writing a version of the series from a different character’s (Edward’s) point of view and the early, incomplete draft was leaked onto the Internet. Jacqui Lipton’s post about Stephenie Meyer’s “reaction to the unauthorized release” of her partial draft reveals another way to think about what is going on here. I followed the link to Ms. Meyer’s post about the problem. I was quite surprised to see that Ms. Meyer has posted the draft on her web site while also expressing her view about reading the draft:

I’d rather my fans not read this version of Midnight Sun. It was only an incomplete draft; the writing is messy and flawed and full of mistakes. But how do I comment on this violation without driving more people to look for the illegal posting? It has taken me a while to decide how and if I could respond. But to end the confusion, I’ve decided to make the draft available here (at the end of this post). This way, my readers don’t have to feel they have to make a sacrifice to stay honest. I hope this fragment gives you further insight into Edward’s head and adds a new dimension to the Twilight story. That’s what inspired me to write it in the first place.

Why post the draft? One could simply ask readers not to read the draft floating around the Internet. Note that Ms. Meyer explicitly does not want to drive people to the unauthorized work. To me this move seems like a way to re-capture the attention that might have gone the sites with the download. In that sense, she may be using her reputation and attention power to undercut the benefits that may flow from unauthorized distribution. Of course there may be sales problems here as some may have been willing to pay even for the rough draft. But that idea probably does not cut off the usual claim that leaking will harm the final market. I would be surprised if those who read the early manuscript will not be more than happy to buy the final draft. In other words, the law often claims that the harm in such leaking or copying is that the unauthorized version is a substitute for the full work which I don’t think is the case.

To be clear, I think Ms. Meyer doesn’t want people to read the draft. But faced with the draft being out there, her response is simply a wise strategy. She tells her fans 1) Don’t read it 2) If you have to read it, read it from my site, 3) Reading from my site is a way to stay “honest” and not “sacrifice” (I am not sure what is being sacrificed but I think it is integrity or loyalty to the author) which means not fueling those who are taking value away from her.

There is an extra point here. When Ms. Meyer says she can’t continue with the book, she is giving honest information to her fans: certain acts (i.e., unauthorized copying and distribution of her work) upset her. In fact, they upset her enough that she will not finish the work in question. I don’t think this point is a threat. And, regardless of motivation, the move tells fans how she wants to interact with them. Insofar as there is relationship with her fans, Ms. Meyer has communicated what she expects. A Rebecca Tushnet pointed out in the comments to Jacqui’s post, there are already “over 100,000 Twilight stories–some of them from Edward’s perspective–available at fanfiction.net. How Ms. Meyer feels about those stories may differ from how she feels about her draft being distributed without permission. So as Jacqui points out this one is personal, but I think it may also be professionally wise.

P.S. Those interested in more on how reputation and attention will be a key asset in an online world may want to read my essay Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products Confuses the Intellectual Property System.

Tiny (Or Rather Shiny?) Bubbles: Apple Trademarks Dialogue Bubbles?

As Don Ho (and others) have sung:

Tiny bubbles
In the wine
Make me feel happy
Ah, they make me feel fine

Those tiny bubbles
Make me warm all over
With a feeling that I’m gonna
Love you till the end of time

The little charming talk bubbles all over the Internet communications have a similar warm effect. They remind me of comic strips and comic books and of adults droning “wa wawa waaa” in Peanuts cartoons on T.V. Ah no more. According to TechCrunch, when a developer wondered why his App had not been approved he was told “the bubbles in its chat rooms are too shiny, and Apple has trademarked that bubbly design.” Wow. Do comic strip and book folks know that Apple is that clever? The wondrous shiny dialogue bubble means Apple! Do the green bubbles qualify too? Yet again I am left wondering what’s a cubit and contemplating a drink with tiny, shiny bubbles.

So I leave you with Don Ho and Tiny Bubbles.

Tiny Bubbles – Don HO

A Terrible Towel Trademark Tale?

As the NFL season gets underway and the Pittsburgh Steelers set off in pursuit of a seventh Super Bowl title (Pittsburghers used to say “One for the thumb” and now, fans call the city “Sixburgh”; what slogan comes next?), the local press is searching for feel-good fan stories.  One feel-good fan story offers some questions for trademark cognoscenti.

Today’s Post-Gazette features a long story on the Terrible Towel, the internationally recognized symbol of Steelers Nation and sign of allegiance of Pittsburghers everywhere.  If you watch an NFL game featuring the Steelers, whether played in Pittsburgh or elsewhere, you will see thousands of Steelers fans in the stadium twirling yellow terrycloth towels painted with a black “terrible towel” logo, usually whenever something positive happens for the team, sometimes to help rally the team.  (You might also encounter twirling Terrible Towels in family rooms, dens, bars, restaurants, sidewalks, airplanes, shopping malls, the Himalayas, war zones, and symphony halls.)  That’s the Terrible Towel.  To Pittsburghers, the Terrible Towel is not only a signal of team allegiance; it’s become a symbol of the city itself, sort of like lobster rolls in Boston, styrofoam Statue of Liberty headgear in New York, and Rice-a-Roni in San Francisco.

The point of the Post-Gazette story is to remind Pittsburghers everywhere that there is a huge “awww” story here.  The Terrible Towel is a registered trademark.  Actually, there are now lots of TT marks, all of them featuring essentially identical logos, for different products.  Among the earlier registrations is No. 2123428 for a typed drawing, in connection with “towels.”  (The law firm that prosecuted the applications was Eckert Seamans, one of Pittsburgh’s largest and best known, and for many years one of its leading IP firms.)  About ten years ago, Myron Cope, the originator of the TT, assigned the mark to the Allegheny Valley School, a local residential facility serving the disabled.  Myron’s son Danny, who is severely disabled, lives at the AVS.  Royalties from the TT marks have generated millions of dollars for the school.  Each towel costs roughly $7 at retail, and it is something of a rule that Pittsburgh citizenship requires that each household own at least one of them.  My family owns several.

All together now:  Awww.

Here’s the trademark question:  Is the Terrible Towel mark invalid? Continue reading

A Trademark/Antitrust Intersection

Major League Baseball has signed a deal with Topps, the baseball card company now controlled by Michael Eisner, that will give Topps exclusive rights to produce trading cards using images of major league ballplayers and marks of MLB teams.

The deal may be questionable under antitrust law. Not unlawful, but questionable, given the American Needle case, now headed to the Supreme Court. The argument, a la American Needle, would go something like this: A group of competitors (the major league teams) are colluding to suppress competition in the sports memorbilia market. If the players really are competitors for relevant purposes, then the antitrust case against them is compelling, if not necessarily an automatic winner.

But.

Even if the deal doesn’t pass muster under antitrust law, is it justifiable — we might say, is it in the interest of consumers — from a trademark law perspective? Antitrust analysis would take account of IP interests here from the producer standpoint; as the American Needle opinions reflect, from an antitrust perspective the question would be whether market discipline is needed to limit the monopoly power of an IP rights holder. My question is different; trademark law asks about non-price aspects of consumer interest. That’s the trademark-based rationale that seems to be implicit in Eisner’s spin:

“This is redirecting the entire category toward kids,” said Eisner, who acquired the company in 2007. “Topps has been making cards for 60 years, the last 30 in a nonexclusive world that has caused confusion to the kid who walks into a Wal-Mart or a hobby store. It’s also been difficult to promote cards as unique and original.”

Eisner doesn’t explain “confusion as to what,” but what he seems to be saying is that the deal is needed not to avoid confusion in the present market, in which Topps competes with Upper Deck and which, I take it, includes healthy participation by (non-confused) adult collectors. Instead, the deal is needed to avoid some kind of future confusion in a potential market — which is, in a Back to the Future sort of way, a traditional market.

Suppose Topps and MLB could spin a factual tale to back up Eisner; there might be a pro-consumer argument from a trademark perspective that balances what American Needle might argue (and presumably will argue, in its own case) to be an anti-consumer argument from an antitrust perspective. Assume, in other words, that the two legal worlds collide. What result?