Digital Media

Apple Inc. v. Superior Court of Los Angeles ex rel Krescent: California Struggles with the Digital Transition

Case Examines Applicability of Credit Card Act to Digital Transactions

In Apple v. Superior Court of Los Angeles ex rel Krescent, the Supreme Court of California examined whether online transactions fall within the scope of a 1971 credit card act that prevents retailers in California from requesting personal identification information. An important milestone in what is likely to be an extended wave of decisions in this area, the case explores the tension between consumer privacy concerns against measures to combat online transaction fraud within the framework of outdated legislation.
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DC Comics v. Towle: Batmobile Case Outlines “Objects as Characters”

Decision holds significant repercussions for licensed products, video games, 3D printing

In DC Comics v. Towle, 2013 WL 541430, __ F. Supp. 2d __ (C.D. Cal. Feb. 7, 2013) (“Towle”), the U.S. District Court for the Central District of California found that a vendor of car kits and customization accessories modeled after the famous Batmobile vehicle from the Batman comics, TV shows and movies infringed on DC Comics’ copyrights and trademarks. The decision, which holds that the Batmobile vehicle is a protectable character much like its fictional owner, has significant repercussions for copyright law as well as for several nascent business sectors within the entertainment, digital media and manufacturing industries. Continue reading

Trademark Law Basics, Part 4: How Do I Choose a Trademark?

This is part four of the CDAS Trademark Law Basics series. If you missed the previous installments, they are available at the following links: Part 1, Why Register a Trademark?, Part 2: Why Conduct a Trademark Search?, and Part 3: What to Expect During the Trademark Prosecution Process.

A trademark can be a word, logo, slogan, or design; it can even be a color, shape, sound or smell. However, it must be a “source identifier.” Under United States law, the exclusive right to use a trademark or service mark is granted solely to identify the source of goods and services. The ability of a mark to identify source is known as distinctiveness. Marks that are generic (like “Yellow Pages” for a business directory – or even former trademarks like “aspirin” and “escalator”) cannot be registered. Marks that are descriptive (like “Safari” for hats and jackets) cannot be registered on the Principal Register unless they have acquired a public association with the mark holder – in other words, they’ve acquired “secondary meaning” in the marketplace. Continue reading

Trademark Law Basics, Part 3: What To Expect During The Trademark Prosecution Process

This is part three of the CDAS Trademark Law Basics series. If you missed the previous installments, they are available at the following links: Part 1, Why Register a Trademark?, and Part 2: Why Conduct a Trademark Search?

The process of trademark prosecution involves you and your trademark attorney filing an application with the United States Patent and Trademark Office (PTO) and, if necessary, responding to challenges. It also includes maintaining your trademark registration for years to come. Continue reading

Amazon Defeats Apple’s False Advertising Claim in “App Store” Lawsuit

Name of Amazon’s Digital Storefront Found Not to be False Advertising

On January 2, 2013, the United States District Court for the Northern District of California rejected Apple, Inc.’s claim that, Inc.’s decision to name its marketplace for selling applications (“apps”) the “Amazon Appstore” was false advertising. The decision constituted a significant win for Amazon in its long-running dispute with Apple over Amazon’s right to use the term “app store.” Continue reading

Trademark Law Basics, Part 2: Why Conduct A Trademark Search?

This is part two of the CDAS Trademark Law Basics series. If you missed the previous installment, it is available here: Part 1, Why Register a Trademark?

Many small businesses apply to register without advice from an attorney. This is perfectly legal, but can be more costly than you think: the fees and costs associated with filing a PTO application can be wasted if your application is denied, opposed, or later challenged in court because of easily avoidable mistakes. With a little time and money up front, you can get off on the right foot. Before you decide to file, a trademark attorney reviewing a trademark search can assess whether your preferred mark appears likely to be available and to go unchallenged. Remember, if you can’t register the mark because someone else already has a registration for a similar mark (or for any other of the many reasons why a trademark might be rejected), you do not get your filing fee back! Continue reading

When Does Art Constitute Transformative Fair Use? It’s As Easy as “Red” and “White”

District Court for the Central District of California examines artist's uses of Sex Pistols photograph

The U.S. District Court for the Central District of California granted in part and denied in part a photographer’s Motion for Summary Judgment in Morris v. Young, a case that explored the requirements for establishing an issue of triable fact regarding fair use (and particularly transformative use) of photographs. Continue reading

Facebook Introduces Graph Search, Privacy Challenges Possible

Facebook recently unveiled “Graph Search,” an innovation designed to help users find and connect their friends by their interests, shared history, and past activity on the social networking platform. The new feature, which will begin beta testing soon, greatly expands the search capabilities of the Facebook platform in a move some commentators speculate may help it compete with Google in the search business area. The Wall Street Journal has a rundown of Graph Search’s functionality here. Continue reading

What 2013 May Ring In For New Copyright Legislation

2012 was a quiet year for any new copyright legislation that could affect those engaged in the creation, production and distribution of entertainment media. With the elections behind us, this could change in 2013. The Copyright Office has indicated that it is interested in tackling several issues that were identified as office priorities in a two-year plan under the new Register of Copyrights, Maria A. Pallante, filed in October 2011. As Co-Chair of the American Bar Association Committee on Copyright Legislation, I have been following these and other legislative issues and will continue to provide updates throughout the year. Continue reading

Small Screen, Bigger Picture

California Federal Judge Issues Circuit-Wide Injunction Against Broadcast Television Retransmitter; Rejects Aereokiller’s Reliance on Second Circuit Cablevision and Aereo Cases

On December 27, 2012, the U.S. District Court for the Central District of California issued a preliminary injunction against Aereokiller (formerly known as, a service founded by Alki David, someone not unfamiliar with television transmission and the law. Previously, in conjunction with rulings involving a similar technology at issue in WPIX v. ivi in New York, David’s prior television-over-the-Internet service known as FilmOn had been enjoined for making unauthorized public performances in violation of television networks’ copyright rights under Section 106(4) of the Copyright Act. This time around, David’s Aereokiller service was set up to create unique copies of broadcast television streams, one per user, so that the transmission of those streams would be a private – not public – performance to that particular user. Continue reading