Monthly Archives: May 2013

May 31, 2013 · 9:46 pm

G®azin’ In the G®ass: Ex-Microsoft Exec. Plans to Brand Pot

“One toke over the line, Sweet Jesus, one toke over the line.  Sittin’ downtown at the railway station, one toke over the line.”  One Toke Over The Line, Brewer and Shipley

On a slow news day, word spread through the wire services that Jamen Shively, an ex-Microsofter, plans to launch a brand of marijuana in Colorado and Washington, the only two states that have legalized marijuana for recreational use.  He is looking for “seed money” for his new venture, and hopes to source his product from Mexico. Eighteen states and the District of Columbia have legalized marijuana for medicinal use. So Shively, who left Microsoft in 2009, sees a buoyant market for his brand, Diego Pellicer,  in both the recreational and medical markets.

Having brand names, logos, jingles, and slogans for marijuana products would represent quite a change from the current underground marketplace for pot.  Although marijuana reportedly accounts for billions of dollars in sales that are not subject to federal or state taxes, efforts to bring the industry out of the shadows and into the mainstream have consistently met strong opposition from a host of sources.  One can only speculate how the alchohol industry might feel about having to compete with marijuana for recreational drug dollars.  Yet. the fast food industry would presumably welcome a national presence for branded pot, which would keep business humming at late night drive through windows across the country.  Happy Meals indeed!

How would the USPTO feel about getting applications to register trademarks for pot?  The Lanham Act prohibits the registration of “immoral or scandalous” matter, such as vulgar double entendres. (Think: a Rooster-shaped lollipops with a brand that combines a barnyard name for the male chicken with the word “sucker”).   That restriction focuses on the mark, not necessarily the goods.  There is nothing immoral or scandalous about Shively’s proposed name, Diego Pellicer. But despite legalization and decriminalization of pot in pockets across the land, marijuana remains illegal under Federal law.  And a few years ago, the Trademark Office closed its doors to applications for marijuana marks after briefly flirting with the idea of allowing applications for medical marijuana brands. 

So what is an enterprising pot grower with a Microsoft background supposed to do to protect his fledgling brand?  He can look to the common law, which protects brands even when they haven’t received a federal registration.  With marijuana legal in Washington State, he might find a receptive (and relaxed) jury if called on to police his marijuana mark against an infringer. Think of it, a marijuana company “policing” something–only in the word of trademarks!

QUOTE OF THE DAY:  “‎Some of my finest hours have been spent on my back veranda, smoking hemp and observing as far as my eye can see.”  Thomas Jefferson.

 

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May 24, 2013 · 3:47 pm

Pullet Surprise: Chicken Called FreeBird

“If I leave here tomorrow, would you still remember me?”  Freebird by Lynyrd Skynyrd

Let me first go on record as saying, “I am not Lynyrd Skynyrd fan.”  But I have some things in common with those men from Alabama that defined Southern Fried Rock.  They claim to have named the band after their gym teacher, a man named Leonard Skinner.  I had a gym teacher in the early 70s named Leonard Wiester who we called Lynyrd. And despite the lyrics of their enduring radio hit “Sweet Home Alabama,” which vilifies Neil Young, the band’s late leader Ronnie Van Zandt apparently had deep affection and affinity for Mr. Young, as do I.  And of course, like most music fans who have been attending live performances for decades, I am fascinated by the cult of Freebird–the most-requested song in the history of music.  The song title that the most obnoxious or drunk audience member (usually the same thing) predictable shouts out during a concert’s  most poignant or pensive lull, hoping to elicit mild and perfunctory amusement from his (and it’s always a “him”)  fellow concert goers, if not the performers (who must absolutely hate the Freebird intrusion).  The Freebird moment has long grown stale, if not putrid, to the point where its begun to wane.  And despite decades of louts abusing the title, the song itself remains immune from any spill-over stigma. 

Freebird– it’s the quintessential Southern Rock anthem. It  begins as a meandering, sentimental ballad in which a commitment-phobic man voices his wanderlust against the thin and brittle strains of a slide guitar.  Then, with the singer plaintively chanting “Lord knows I can’t change,” the tempo builds, then gallops into an extended three-guitar jam-packed with more virtuosic pyrotechnics than a Fourth of July fireworks extravaganza.

With Freebird, Skynyrd struck a chord that’s been sustained over five decades.  It’s a bravura performance  that cannot be ignored, even if we’d rather dismiss it as cliché or mock it as little more than redneck pathos drenched in melodrama.  Simply put, Freebird rocks.

So when I recently grabbed lunch at a local salad production line (a place that minces lettuce and fixin’s nearly into a puree), I was struck to see that their organic, liberated chicken had a brand name–FreeBird chicken.  Had Skynyrd gone into the poultry business?  Unlikely, I thought.  But still, using Skynyrd’s signature song title as a trademark without even paying chicken feed seemed oddly like plagiarism.  And there is precedent for giving famous song titles quasi-trademark status.  Years ago, Jimmy Buffett scored a legal win against a restaurant that wanted to call itself Margaritaville. Buffet’s trump card in that dispute was his plan to open his own  chain of restaurants called Margaritaville.  That fact, along with the distinctiveness of the name and the strong association between that fictional place and the musician who created it, gave Buffet a legal basis for calling “Margaritaville” his own. 

Could Skynyrd marshall similar facts if it wanted to ruffle some feathers and start a legal faceoff with the FreeBird chicken folks?  Surely, Freebird is associated as much with Skynyrd as “Margaritaville” is with Jimmy Buffett.  But what about the restaurant angle?  A quick internet search gave me hope.  A news story announced that the band would have a stake in a Las Vegas restaurant to be called “Lynyrd Skynyrd BBQ and Beer.”  And in fact, the joint opened in late 2011, earning some critical praise for both its food and rock and roll atmosphere.  But Skynyrd’s box office cache did not translate to the highly competitive Las Vegas restaurant arena dotted with lavish establishments manned by Michelin Star chefs.  Lynyrd Skynyrd BBQ and Beer declared bankruptcy and closed less than a year after it opened. 

So today, you can dine on FreeBird chicken if you don’t mind it all chopped up in a melange of lettuce.  But you can no longer dine to the strains of “Freebird” while enjoying deep-smoked savory meats and cold refreshing brews.  Does it rankle the members of Lynyrd Skynyrd that there’s a brand of chicken called FreeBird? Do salad craving diners hum Skynyrd songs in their heads while they munch on arugula, kale, and romaine laced with shreds of FreeBird chicken?  These questions are as imponderable as “which came first, the chicken or the egg?”   Just as we’ll never know the answer to the enduring question posed in Freebird–“If I leave here tomorrow, would you still remember me?”

QUOTE OF THE DAY:  “No bird soars too high if he soars with his own wings.”  William Blake

 

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May 22, 2013 · 4:31 pm

The End: Death of a Door Likely Prevents Future Jams

“You and I travel  to the beat of a different drum.”  Different Drum, by Michael Nesmith

In a week dominated by devastation in the Nation’s tornado alley, it was easy to miss the news that Ray Manzarek, keyboardist for the Doors, had died.  While Jim Morrison defined the Doors’ image with his flamboyant stage presence and apocalyptic lyrics, Manzarek defined the band’s sound, lending baroque classical flourishes to the definitive Doors song Light My Fire and propulsive jazz inflected stylings to many other of the band’s hits. 

While Manzarek is best remembered for his music, his obituary also contains a Softrights-worthy footnote about a long simmering, and sometimes roiling,  trademark dispute over rights in the Doors name,  As reported in Billboard back in 2008, the four members of the Doors, Morrison, Manzarek, guitarist Robby Krieger, and drummer John Densmore, signed a pact in 1970 that gave each of them veto power over any business deal.  According to Billboard, the four Doors inked that agreement after a nasty battle about whether to let Buick use “Light My Fire” in a television commercial,

After Jim Morrison died in 1974, the remaining Doors remained largely, well, dormant.  But in 2002, Manzarek and Krieger itched to return to the stage. They tried coaxing Densmore to reunite the band.  Densmore declined. And though he took no issue with Ray and Robby performing the band’s music, using the Doors name was another story.  “You can’t call yourselves the Doors because you can’t have the Doors without Jim Morrison,” Densmore’s lawyer was quoted as saying.  And when lawyers are quoted, that means only one thing–a lawsuit.

Yes, despite Densmore’s protest, Manzarek and Krieger hit the road calling themselves the Doors of the 21st Century.  The tour reportedly earned them $3.2 million, none of which they shared with Densmore or Morrison’s estate.  So Densmore and Morrison’s representative sued and won, blocking further use of the Doors name and getting over $5 million in damages and costs. 

Manzarek and Krieger continued to perform together, calling themselves Riders On The Storm, and later, Manzarek and Krieger, with Densmore continuing to be the lone holdout to any commercial use of the Doors name or music (he reportedly vetoed a $15 million deal to use “Light My Fire” in a Cadillac commercial).  Shortly before Manzarek’s death, however, Densmore hinted publicly that the three surviving members might at last reunite.  But with the drummer finally singing a different tune, fate, not a court, has intervened to shut the Doors.

QUOTE OF THE DAY:  “There are things known and things unknown and in between are the doors.”  Jim Morrison

 

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May 14, 2013 · 10:22 pm

Owner With His Head In the Sand?: Redskins Name Controversy Returns

“Old enough now to change your name.  When so many love you is it the same?”  Cowgirl In The Sand by Neil Young

Dan Snyder, owner of the Washington Redskins, (the capital’s storied NFL franchise), is no trademark neophyte.  An entrepreneur since his college days, Snyder has lifted the Redskins franchise to become one of the most valuable teams in sports.  Snyder reaps a fortune selling jerseys and other merchandise emblazoned with the REDSKINS name and logo–a profile of a Native American man. 

So with these invaluable trademarks fueling the engine of his success, it’s no surprise that Snyder waited until  all of Washington’s trademark professionals  flocked to arch rival Dallas before opening the latest chapter in the ongoing controversy over the REDSKINS name.  While lawyers from private practice and the USPTO were convening convivially in the shadow of Jerry’s Jones’ opulent new Texas stadium, Snyder defiantly declared to USA TODAY–“We will NEVER change the Redskins name.” 

Long simmering charges that the name is racist and disparaging to Native Americans bounce off Snyder like raindrops beading off a freshly waxed car.   He insists that the name only refers to his football team, and has lost any disparaging or barbaric connotations it once may have had.  And public opinion polls are like the buffet table at the Club Level of Fed EX Field–there is something for everyone, with surveys supporting each sides’ take on the name.

So Snyder would rather fight than switch. 

And the fight over the federal trademark registration for REDSKINS, once thought to be over, has returned.  Back in 1992, Native American groups and individuals petitioned the USPTO to cancel the REDSKINS trademark, alleging that the name is disparaging.  The Lanham Act, the federal trademark statute, forbids registration for disparaging marks.  The petitioners won round one, but ultimately lost on a procedural issue; the reviewing courts ruled that they had waited too long to bring their challenges. The Supreme Court declined to take up the issue.  Now, however, there’s a fresh case. This time the petitioners are younger and claim that they could not have acted sooner. 

The new case is again pending before the Trademark Trial and Appeal Board (TTAB).  The TTAB, however, only has the power to cancel the REDSKINS federal trademark registration, not stop the team from using the name.  Losing the TTAB case would be a setback, and could affect the team’s rights in dealing with counterfeit merchandise, especially imports. But is wouldn’t be a mortal blow; it would not force the REDSKINS to change their name. 

For the petitioners and their supporter, the real issue goes beyond whether Snyder gets to keep his certificate of registration.  One can easily think of  several antiquated and pejorative  nicknames for ethnic or racial groups that would be offensive if used as the name of a sports franchise.  How is REDSKINS any different, opponents of the name ask?

Abe Pollin, the beloved civic leader and owner of city’s basketball franchise had no qualms about changing its name from the Bullets to the Wizards when he felt that naming a team after a lethal projective sent the wrong message in a city then plagued by gun violence.  And surely, measures could be taken to honor tradition and preserve the essence of the football team’s  brand while eliminating a term that some, perhaps even many, find offensive.   Who remembers that the KNICKS are really the Knickerbockers and the METS really the Metropolitans? What would be lost in the long run by similarly calling Snyder’s team simply the SKINS? 

Snyder, however, insists his conscience is clear and that the name will “NEVER” change.  It may be good business.  But whether it’s right is a question that trademark law can’t answer.

QUOTE OF THE DAY:  “People who work together will win, whether it be against complex football defenses, or the problems of modern society.”  Vince Lombardi

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May 7, 2013 · 6:12 pm

INTA The Great Wide Open

“Have you ever seen Dallas from a DC-9 at night?” Dallas by The Flatlanders

When you think of Dallas, many images snap to mind. The grainy, jarring frames of Abraham Zapruder’s home movie, Lee Harvey Oswald doubled over from the blast from Jack Ruby’s pistol, Tom Landry stalking the sidelines of the Cotton Bowl in his suit, tie, and hat, the portrait of Jock Ewing hanging over Miss Ellie’s mantle at Southfork, Tony Romo’s smirk, Larry Hagman’s devilish grin as JR Ewing over two generations of Dallas, the soap opera.

Trademarks, however, are not top of mind when you land at DFW or Love Field, not even as you make your way to the flagship Nieman Marcus in downtown Big D.

But here in Dallas this week in May, almost 10,000 trademark professionals–in-house corporate lawyers, outside counsel, Internet and domain name specialists, and flocks of experts and service providers–have descended on Dallas for the 135th International Trademark Association Annual Meeting.

Trademarks and Texas have come a long way since 1888 when the first annual meeting took place. Then, a “brand” in Texas literally meant a symbol seared into the hide of a cow. And justice was meted out by Judge Roy Bean, whose “Law West of the Pecos” entailed more hangings than injunctions for trademark infringement. (We shudder to think of how Judge Bean would have dealt with such devious hombres as counterfeiters and cyber squatters).

And those first INTA attendees back in 1888 would marvel at the range of topics swirling around INTA 2013–social media, fluid trademarks, gtdls, and the “food explosion” and other trendy subjects speak to the complexities and challenges of our brand-centric modern era.

Dallas has been hospitable and impressive. And steeped in history, from the life size sculpture of a long horn cattle drive that speaks to Texas’ Lonesome Dove days to the Texas Book Depository that reminds us of a dark day in November fifty years ago.

Having grown up in Lawrence NJ, I naturally gravitated to the Hotel Lawrence, a venerable establishment that makes up in friendly staff what it lacks in luxury. It’s just a block from Dealey Plaza, and sleeping in the vicinity of JFK’s final ride has conjured up some fitful dreams while rekindling interest in the “single bullet theory” and other conspiracies that seldom haunt my thoughts back home.

Yes, as those Texas troubadours The Flatlanders sing, Dallas is a beautiful sight, and a haunting one too.

QUOTE OF THE DAY: “Hang ’em first and try ’em later.” Judge Roy Bean.

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May 2, 2013 · 9:47 pm

A King Whose Reign Brewed An Industry

“I don’t lose no sleep at night ’cause things with you are going right/And I hardly ever sing beer drinking songs.”  “I Hardly Ever Sing Beer Drinking Songs” by Johnny Cash

Go into any bar or restaurant on DC’s trendy U Street Corridor or into any joint in new hot neighborhoods such as Bloomingdale or Logan Circle.  For every irony-drenched hipster sipping a PBR, you’ll find dozens of Congressional staffers, lobbyists, lawyers, NGO-sters, and interns pouring over copious beer lists brimming with exotic offerings from microbrews both local (like Northeast DC’s Chocolate City Brewery) to international, such a Belgian premium drafts that rival a good Bordeaux in price and drinking pleasure.   The beer selections at “hoppin'” places such as Birch and Barley are literally dizzying, especially with beers whose alcohol content approach 10%.

It’s easy to forget that just a generation ago, finding an India Pale Ale or English bitter was rarer than a blue moon.  Now of course, Blue Moon Brewery is one of the more ubiquitous standard bearers of the “craft beer” explosion.  And imports once prized for their scarcity and pedigrees, such as Stella Artois and Pilsner Urquel (not to be confused with Steve Urkel), have now gone mainstream, rubbing shoulders with Heineken, Corollas, and even Bud and Miller (apologies to Buddy Miller, the most soulful and compelling alt. country musician/producer/guitarist performing today.)

As chronicled in the Wall Street Journal,  http://online.wsj.com/article/SB10001424127887324482504578455131793135370.html, the father of this  beer revolution  was Henry King, a New Jersey native who came to Washington to shake up and wake up a stagnant beer industry.  He realized that the biggest impediment to harnessing the brewer’s art was a federal excise tax that imposed prohibitive costs on would-be small producers.  Leaning on industry, labor, and lawmakers alike, King shepherded legislation to slash the tax,  paving the way for the beer explosion we’re enjoying today.

Back in the day, your choices were Miller Time, Clydesdale Horses, or a Rocky Mountain high from Coors.  But thanks to Henry King, the true King of Beers, we now can enjoy flights of beers from microbreweries in every state of the union.  Full disclosure,  Henry King is the father of my dear friend Ottilie King Droggitis.  Ottilie has shared stories about her dad that certainly made him appear as a larger than life figure.  This story in the Wall Street Journal confirms all that, and more.

Next time you enjoy a cold one from a craft brewery, drink a toast to Henry King.

QUOTE OF THE DAY: “He was a wise man who invented beer.”  Plato

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May 1, 2013 · 10:19 pm

Another Fine Mess: Stanley Cup Kicks Off In Lockout’s Shadow

“Now ever since I was young its been my dream. That I might drive the Zamboni machine.”  The Zamboni Song by The Gear Daddies.

One of the most exciting and intensely played tournaments in all of sport—and the one with the oldest and most coveted trophy– kicked off last night as the NHL’s Stanley Cup Playoffs got underway.  The contest pits 16 teams who compete in best-of-seven elimination series, with the winners of each round moving on until only two teams remain to face off in the Stanley Cup Finals in June.  My team, the New York Rangers, clawed its way into the playoffs on the strength of shrewd trades, gritty play, clutch scoring, hot goaltending, and a few lucky caroms of the boards.  They will play the team from my adopted home, the Washington Capitals, with Game One scheduled for tomorrow night at Verizon Center.  That arena is  located in DC’s vibrant Penn Quarter, only a stone’s throw away from the city’s dwindling Chinatown.  (I’m still investigating rumors that some visiting players have ordered carry out for between-period noshing).  If past is prologue, it should be a riveting series.  Last season, the Rangers ousted the Caps in seven games.  But Washington scoring star Alex Ovechkin has been scorching opponents, and the Capitals seem destined to skate past the disappointment that has hounded these perennial under achievers like a dogged forechecker.

For a time, however, it seemed doubtful that NHL hockey would be played this season in the arenas of North America.  The contract between the league and its players had expired, and the owners had locked the players out.  No training camp, no pre-season, no games in October, November, December, and into January.  As talks between the factions grew evermore fractious, the league cancelled its mid-season outdoor showcase, The Winter Classic, and gloom descended on the hockey faithful everywhere–from the “Original Six” bastions of NHL tradition (Montreal, Toronto, Boston, New York, Detroit, and Chicago) to the glitzy, frozen showtime of L.A.’s Staple Center, home of the reigning champion Kings.  The issues separating owners and players echoed the tropes we’ve become accustomed to hearing whenever owners, players, and their respective minions drop the gloves and square off for a labor brawl.  Cries of poverty from billionaire owners collide with the players’ refusal to backslide on gains and perks won in years past.  

“We had all been here before”, as CSNY sing in Deja Vu.  And the flashback wasn’t pleasant.  Back in 2004-05, an entire season was lost due to labor strife.  And as the New Year’s ball descended on Times Square to welcome the infant 2013, the odds of salvaging the 2012-13 season seemed longer than Father Time’s beard.  Frtunately–for the owners, players, the fans, the broadcasters, and especially all the hardworking  folks whose livelihoods depend on the games being played–common sense prevailed and a new collective bargaining agreement was inked on January 9, 2013.

By that time,  the League had cancelled over 500 games and only enough time for a 48-game season remained.  The short season felt like a long time coming, but when it arrived, it was fast, furious, and fun.  Cramming 48 games into four months meant more games per week per team, and less rest for the players.  And once play started, it seemed that the turmoil from the lockout was soon forgotten.

But this blog is about IP rights, not sports, so let’s consider whether the casualties from the long labor dispute included more than  lost games and revenue.

Did the lockout hurt the NHL brand?  It appears that it may well have done more damage than forcing fans to fill their sporting void with episodes of Duck Dynasty or Jersey Shore.  According to a study released back in February,  the lockout not only left  hockey fans feeling slighted by the NHL, it also pulled down the League’s overall brand value. Consultancy firm Brand Finance, which tracks the clout of brand names in the real world, estimated that the NHL will lose nearly US$328.2 million in brand value in 2013 as fans spend less money on hockey in the coming year. 

Another study, from Toronto-based firm Charlton Strategic Research Inc.,  found that while the NHL’s image has improved since the lockout ended,  it has  not recovered fully.

In remains to be seen whether an exciting “second season” of playoff hockey will provide the antidote for the lockout’s hangover.  Perhaps if a marquee team from a major media hockey market like New York, Boston or Chicago hoists Lord Stanley’s Cup in June, the lingering effects of labor strife will melt away like ice really should on the verge of the vernal equinox.

QUOTE OF THE DAY:  “If any man tells you he loves America, yet hates labor, he is a liar. If any man tells you he trusts America, yet fears labor, he is a fool.”—Abraham Lincoln

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