Legal Geek No. 161: Celebrity Patents

Welcome back to Legal Geek. This week, while many are preening over the outfits and the awards given to celebrities at the Oscars, we take a look at some patents granted to celebrities which may surprise you.  Who knew some of these people were also inventors?

https://archive.org/details/LegalGeekEp161 

Good ideas can really come from anyone, and celebrities are no different. Let's look at a few granted U.S. patents and their well-known inventors famous for something entirely different.

Back in the 1980's when Jamie Lee Curtis was working on Halloween movies among other hits, she was also having children. One time when changing a diaper on her daughter, she discovered she left the wipes across the room, which made for a tough conundrum of leave the messy diaper open to go get the wipes, or try to deal with the mess without wipes. So she invented and patented the Dipe and Wipe, a diaper with a pouch to hold wipes on site at all times. This patent granted in 1988 and was never heavily marketed, but it is in the public domain now for all to use, if wanted.

Neil Young is better known for his music as a two-time Rock and Roll Hall of Fame inductee, but his passion on the side is model trains. He has a barn filled with model trains on his property. He actually held an ownership stake in the model train company Lionel for a while in the 1990s, and developed and patented several things for the company during that time. One patent covers a controller that sends signals to model train locomotives using an electromagnetic field rather than requiring actual contact with the metal track materials, which was developed to helped his son with cerebral palsy control and enjoy the trains. He also patented a model train horn system that better allowed an operator to simulate many of the locomotive noises a real train makes.

Before Bill Nye became "The Science Guy" on children's TV, he was a mechanical engineer who worked at Boeing Corporation. Just because he stopped being a full-time engineer doesn't mean he stopped inventing, and it's no surprise many of his inventions stem from the shows he produced. But one particular patent on ballet toe shoes stands out as way outside Bill Nye's normal field. When he interviewed Seattle ballet dancers who were appearing on an episode about bones and muscles, he realized the toe shoes ballet dancers use to dance en pointe could be improved to help avoid many of the injuries young women were experiencing from this dance form. His patented shoe from 2005 adds a tubular support sleeve and a particular polymer material for additional shock absorption. 

The Bottom Line is, the patent field is full of inventors from all walks of life, including these celebrities who we consider to have extraordinary skill in another art. Inspiration can come from everyday problems, and those same problems being solved is precisely the type of evidence patent offices in the U.S. and other countries find persuasive when deciding to grant patents. While many look forward to the next fashion statement on the red carpet from celebs, I look forward to being surprised by new inventions these same people can come up with.

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Legal Geek No. 160: Expiring Digital Copy = False Advertising?

Welcome back to Legal Geek. This week, we review a question sent in by a listener Justin regarding expiring digital copy codes on movies, and whether that can be deemed false advertising.

https://archive.org/details/LegalGeekEp160

Most of us have probably experienced this: you buy a movie from the sales or clearance rack at the store, take the disc home and log on to your computer to claim the included digital copy...and bam, code expired. No digital copy. Or perhaps you forgot to enter the code when you bought the movie and you discover this a couple years later, only to find that the digital copy code is no longer valid. In either case, it's highly frustrating, especially as many move away from print media and discs and store everything digitally or in the cloud.

Well that's roughly what happened to Justin, our listener with the question. He bought a movie with a "digital copy included" label on it, with no expiration date listed on the package, only to find out once he opened the movie that the code expired 5 days earlier. He cannot return the movie since it is open, but he did not get the deal he was hoping for. Does that create a false advertising claim under the law?

You'll be shocked to hear that it's a gray area, the lawyer's favorite playground. False advertising under the law requires advertisement of a product in a misleading way, to make the purchaser believe the product performs better than it actually does. Although many states have some false advertising laws, we will focus this segment on the two federal laws on point: the Federal Trade Commission Act and the Lanham Act, the latter of which establishes trademark law in the U.S.

The FTC Act defines false advertising as advertisements that make representations that the advertiser has no reasonable basis to believe, and only the FTC can enforce this act. We covered some FTC cases a couple months ago, but looking through their archives, it does not appear that expiring digital movie copies have led to a decision under this law as of yet. It seems unlikely that a movie seller would be liable because the representations made of a digital copy being available were likely reasonable and true when the movie disc was produced and sent to retailers. In other words, the only way a seller would have no reasonable basis for belief in advertising a digital copy was included would be if the code for the digital copy expired before the discs could hit shelves, or if the codes were never valid at all. This is a high burden to prove and so I don't expect the FTC to weigh in on such a case.

The Lanham Act defines false advertising as having the following 5 elements, each of which must be proven: (1) false statements of fact were made about the product; (2) the false advertisements deceived or had the capacity to deceive a substantial segment of consumers; (3) the deception was material; (4) the product was sold in interstate commerce; and (5) the party suing the advertiser was injured by the deception. 

There's a few potential holes in arguing these 5 factors in Justin's case. First, if the digital copy were valid for a long period of time before he chose to purchase the movie, then it's unclear whether the "digital copy included" label is really a false statement. Especially if the general consumer understands that the standard or common market practice is for digital copy codes to have an expiration date, then it may not be that such a label has a capacity to deceive a substantial segment of consumers. A movie seller could also argue against the materiality of the deception here, as the buyer still receives a copy of the movie they purchased, just on a disc, and if they purchased solely to obtain the digital copy, there were other ways to do that more directly than buy a disc. Particularly if the movie was bought on a sale or clearance rack, the consumer might be expected to understand that the lower price is available in part because the digital copy is no longer available, lowering the market value.

A claim could be made for false advertising, but under the available U.S. laws, it would be exceedingly difficult to prove. It would be best practice for movie sellers to include expiration dates on the outer packaging of a movie, and some do, but it may not be required under the law.

The Bottom Line is, false advertising is a unique branch of law that is honestly more focused on large-scale scams than individual grievances. That being said, some movie companies will still honor the digital copy and offer you a new (valid) code if you reach out to them with your complaint after buying in circumstances like Justin did. That's probably the easiest solution, given that no company wants to deal with bad customer P.R. or a lawsuit, even if such a lawsuit would likely be in their favor in the end. Thanks Justin for this great topic suggestion, and I hope you find some resolution to your digital copy conundrum!

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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy

Legal Geek No. 159: Nobody Outsponsors the Hut, and Cryptokemon!

Welcome back to Legal Geek. This week, we cover an interesting story that broke in the weeks leading up to the Super Bowl: a fight over the trademark for "The Official Pizza of Football."  We also look at another recent trademark opposition involving Blockchain and Pokémon.

https://archive.org/details/LegalGeekEp159 

Our first case comes when Genesco Sports Enterprises, a Dallas based company, filed to register a U.S. trademark for Official Pizza of Football.  One might immediately assume the NFL or NCAA would oppose such a registration to maintain their licensing rights, but you'd be wrong.  Instead, it's Pizza Hut that stepped up to oppose this registration.

Pizza Hut has submitted extensive evidence showing their official and exclusive pizza sponsorship deals with these sports organizations and the ESPN College Gameday show.  As a result, the company claims that Genesco's registration would mislead consumers to assume deals were made that are not actually in place.  The fun assertion here is that Pizza Hut is trying to prove who is the official pizza of football, a rare piece of levity in the opposition board proceedings.  But Pizza Hut spends a lot of money to do those sponsorships, so it makes sense they would spend a small amount of legal fees to protect their brand position.  I suspect Pizza Hut will successfully oppose this other registration based on the overlap of their slogan with this intended mark.

If nothing else, we can all agree pizza is one official food of football, across the board.  But you can do so much better for Super Bowl party food, and I hope you did, considering how lame the game and halftime show turned out to be.

In our second story about recent trademark oppositions, Nintendo is back in front of the board opposing another company trying to register a brand too close to Nintendo's IP.  In this case, the trademark is for Cryptokemon, from a company called S&C Digital Solutions.  The intent is to use Cryptokemon to be a blockchain-based digital collectible pets game.

Sound familiar?  Nintendo thinks it does, as the collectible pocket monsters games called Pokémon would attest.  Thus, Nintendo is claiming that this mark is too similar to Pokémon and would confuse consumers by creating an association between the game properties and companies that will not exist.  Nintendo is trying to snuff out this cute title for a blockchain-based game, and it seems like it will be a close call on whether they will succeed.  The names are similar at the end, but that may not be enough to prove consumer confusion.

The Bottom Line is, whether protecting brand position bought by sponsorships and licensing, or guarding against any competitors using a similar sounding name, big companies continuously monitor those trademark applications about to register and they often oppose such applications.  It can be very difficult for small companies and individuals to compete in expensive opposition procedures, and that's probably what Pizza Hut and Nintendo hope for here.  We will keep you informed if any interesting developments come out of these opposition cases.

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Do you have a question? Send it in!

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy