Not for copyright, mind you, but trademark, because Wild released a comic book called Carnival of Souls in 2006. Wild is claiming that the publisher is intentionally trying to cause confusion between a new fantasy novel and a comic book released six years ago. Click here and read the full story at techdirct.com from the holy-crazy dept!
...now browsing by category
Journalists, documentary producers, writers of non-fiction, and bloggers must make absolutely sure that if they are going to publish something, they should have the complete work so they understand the whole meaning of what is being said. Otherwise, they are likely to wind up putting words into someone’s mouth that can result in a lawsuit.
Take, for example, ABC’s news magazine show 20/20, which aired a clip of Dr. Frederick Price, an evangelical minister, delivering a sermon in which he said, “I live in a 25-room mansion. I have my own $6 million yacht. I have my own private jet, and I have my own private helicopter, and I have seven luxury automobiles.” ABC was suggesting that Price was bragging about his personal wealth.
Unfortunately for ABC, the clip had been taken from one of the minister’s sermons in which he was preaching about a hypothetical person who had material possessions beyond his needs, but whose spiritual foundation was absent. When ABC was made aware of its mistake, it broadcast a retraction, but Dr. Price had still filed a complaint against the broadcasting company and reporter John Stossel.
On August 25, 2010, Ninth Circuit Judge Mary M. Schroder reversed a lower court’s dismissal of the complaint and said: “Journalists and publishers risk a defamation action when they put words in a public figure’s mouth. The issue in this case is whether there are similar risks when a network television program broadcasts a statement actually made by a public figure, but presents the statement in a misleading context, thereby changing the viewer’s understanding of the speaker’s words.”
It is unclear whether Dr. Price will eventually prevail as this is still in the very early stages of litigation and he is apparently very wealthy.
In a recent blog post, Context is Everything: A Critical Less in Journalistic Responsibility, I examined the problems resulting from publishing a statement made by Department of Agriculture official that was edited so that the meaning became the opposite of what was intended. In the case of Dr. Price, it was not how the clip was edited that was the problem, but what was said about it on the show that gave his statement a very different meaning.
Don’t forget that statements made by a reporter or in documentary “voiceover” leading up to or coming out of a clip or quote can color the speaker’s words in the wrong way and paint a very different picture than what he or she intended. Make sure that any statements made about the clip or quote accurately describe the context of what is being said.
What is important here is what was emphasized by the Court: “[W]hen dealing with material that is portrayed as quotation, we are to compare the quotation with the words the speaker actually said…. When the published quotation contains a material alteration of the meaning conveyed by the speaker, the published quotation is false. Here the context in which Price’s words were presented materially changed the words’ meaning.”
Once a statement is deemed to be false, it can then fit within the definition of defamation, which is generally: A false statement of fact about another that is published with the requisite degree of fault and causes injury to a person’s reputation.
Truth is an absolute defense to a claim for defamation, but in the Dr. Price case, the comments and the context within which they were presented transformed a harmless true statement into an actionable false one.
Victoria’s Secret sold or gave away a hot pink tank top with the word “Delicious” written across it without first considering whether or not it might have been a trademark infringement.
The top was included in a gift package of “Beauty Rush” lip-gloss to help promote Victoria’s Secret’s new line of personal care products under the “Beauty Rush” trademark. In much smaller lettering on the back of the shirt was the word “yum” and the phrase “beauty rush.” Much to their surprise, “Delicious” turned out to be a registered trademark of Fortune Dynamic, Inc., which used the mark on footwear for women and children that the company began selling in 1997. They had registered “Delicious” in 1999.
Fortune Dynamic filed suit, but the District Court granted summary judgment in favor of Victoria’s Secret. In an opinion by Justice Jay S. Bybee, the Ninth Circuit reversed. Justice Bybee discussed the eight Sleekcraft factors that can be used to determine whether a likelihood of confusion may exist and the similarities of the mark; he decided that there were enough factual issues in the case that a Summary Judgment was not appropriate and sent it back for trial. He concluded:
“Furthermore, in light of evidence suggesting that Victoria’s Secret used the term “Delicious” as a trademark and suggestively rather than descriptively, together with Victoria’s Secret’s failure to investigate the possibility that “Delicious” was already being used as a trademark, there remains a genuine issue of material fact as to whether Victoria’s Secret used “Delicious” unfairly.” Fortune Dynamic v. Victoria’s Secret Case No 08-56291 (9th Cir, August 19, 2010)
As part of its defense, Victoria’s Secret had asserted that the word “Delicious” accurately described the taste of the “Beauty Rush” lip-gloss and the smell of “Beauty Rush” body care products. In addition, they felt that the word was a “playful self-descriptor” in that a woman wearing the top was saying “I’m Delicious.” No search had been done to determine whether “Delicious” was actually a trademark. A previous promotion had “Very Sexy” written on a tank top, but that phrase was already a registered trademark of Victoria’s Secret.
From my perspective, as someone who is often a part of the process of developing a trademark, one of the most interesting issues is what the executives who put this promotion together actually understood. Did they realize that the manner in which they used the word “Delicious” was potentially a trademark use? Giving them the benefit of the doubt, I presume the answer was no. If they had, they would have gotten the legal department to do a search, although whether or not Fortune Dynamic’s mark would have appeared as an obvious conflict is another question. A quick general search of the word “delicious” in the USPTO records turns up nearly a thousand entries of related marks.
It is relatively easy to do a trademark search, but first, someone must identify the need. If the question is never asked, a good-tasting answer cannot be found.