(no subject)

[heidi]

Comments on the case I mentioned here.

1. This goes into the 2 Live Crew bin for "most unexpected terminology in a Supreme Court case (right next to Souter's "bass riffs"):

novelty action clocks, patches, temporary tattoos, stuffed animals, coffee mugs, leather biker wallets, zippo lighters, diet formula, diet supplements, jigsaw puzzles, whyss, handcufs [sic], hosiery bubble machines, greeting cards, calendars, incense burners, car air fresh-eners, sunglasses, ball caps, jewelry, candles, lava lamps, blacklights, fiber optic lights, rock and roll prints, lingerie, pagers, candy, adult video tapes, adult novelties, t-shirts, etc.

Do any of *you* know what a novelty action clock is? What about a whyss? A hosiery bubble machine?

I'm waiting...

2. Am I right in reading this case as being very, very, very good for authors NC-17 fanfic, and authors of slash fanfic, and, to be honest, any fanfic that the author of the original work thinks casts tarnishment on the original work and/or merchandise?

Here's at least one reason why:

The record in this case establishes that an army officer who saw the advertisement of the opening of a store named “Victor’s Secret” did make the mental association with “Victoria’s Secret,” but it also shows that he did not therefore form any different impression of the store that his wife and daughter had patronized.

3. Oh yay, oh joy, they mentioned that durned "Greatest Snow on Earth" case. I was actually usually working on the ringling domain name cases and spent some time with The Greatest Bar on Earth (which is, of course, no more) but, hell, was that case the bane of many of my Saturdays in 1997-1998.
(more to come...)

Rebecca, can I talk a little bit about trademarks in our Nimbus-presentation? Please?

Comments

[owlman.livejournal.com]

whatever they are do not attempt to make them the next products to be sold in the shoppe

I Know At Least One

[wendywoowho.livejournal.com]

Hosiery bubble machines are the little vending machines -- like gumball machines and usually displayed with same -- that dispense trinkets in a little plastic container, with lid. They're like the way a certain hosiery company used to package its hose...except, they used a more ovoid shape. (Dig me not using any trademarked terms in that comment!)

Novelty action clocks...perhaps like the Gar...I mean, like the orange striped cat from the comic strips, presented in clock form, whose eyes move back and forth, and who calls out for an Italian noodle-and-cheese casserole whenever the hour strikes?

[praetorianguard.livejournal.com]

A google search for 'whyss' turned up this though. Talk about random association.

[ali-wildgoose.livejournal.com]

A novelty action clock is an alarm clock that has moving parts that go off at specified times, like flapping wings or a moving mouth. ;}

[mortari.livejournal.com]

Aww, and I was just about to suggest that. I would certinaly go for Guns n' Handcuffs handcuffs, or a Draco car air freshener. And I would like to buy a whyss too, though I have to confess to not having a clue what it is.

[owlman.livejournal.com]

I nver objected to hte handcuffd. Just the stuff mentioned in this line 'Do any of *you* know what a novelty action clock is? What about a whyss? A hosiery bubble machine?'

[ivyblossom.livejournal.com]

I want a novelty action clock. I love clocks.

[rachet.livejournal.com]

Isn't a hosiery thingamajig just the vending machines that spew little egg shaped thingies with toys and such inside?

[rachet.livejournal.com]

Aaaand if I would have read the other comments before I commented...I would have seen that not only was I right but someone had already pointed that out (without using the words "thingamajig" and "thingies", to boot!)

My bad.

[steve-dallas.livejournal.com]

I don't think it has any implication to fanfic. The court held that people seeing "Victor's Little Secret" would not associate the store with "Victoria's Secret."

People reading fanfic about Harry Potter will assocatiate it with... Harry Potter.

[heidi8.livejournal.com]

Hmmm. Not sure I agree with your take on the "association" issue, especially because of this:
There is a complete absence of evidence of any lessening of the capacity of the VICTORIA’S SECRET mark to identify and distinguish goods or services sold in Victoria’s Secret stores or adver-tised in its catalogs. The officer was offended by the ad, but it did not change his conception of Victoria’s Secret.
That, along with what I quoted above, make me think that any argument that the trademark holder could make that the fanfic makes one think of the original books or the associated merchadise, is somewhat eviscerated because the fact of the mental association has no bearning, according to the court, on the question of the ability of the mark to serve as a source identifier.

[rachet.livejournal.com]

You know, it's very interesting to hear about the Victoria Secret case. It's a Columbus based company (all of Wexner's little empire is from this area) so I'm sure it'll be all over the evening news.

[rivkat.livejournal.com]

Sure, go ahead and talk about trademark.

Dilution's never going to be an issue for fanfic, regardless, because fanfic isn't a commercial use in commerce as required by the FTDA. Even if you sold it as a 'zine, it wouldn't qualify under the recent Mattel case, because the use of HP would reflect the content (unauthorized stories in the HP universe) and thus is protected by the First Amendment against a dilution claim; I expect most courts will follow that court's reasoning. The principle is pretty sound, and known in regular trademark confusion law too, albeit under the more limited doctrine of nominative fair use. Dilution applies to the use of marks as marks, rather than the use of the products represented by the marks as topics of discussion. It's true that the Second Circuit made no mention of that in the Spam/Spa'am case, but I expect it would be sympathetic to that claim.

Interetsing Timing

[debellatrix.livejournal.com]

The universe seems to be conspiring even further to make Nimbus a very timely event. I think it's a great topic for discussion.
VP

Speaking of Trademark law

[pegkerr.livejournal.com]

I'm assuming you know about this blawg website, don't you, Heidi?

P.