Legal Geek No. 165: Medieval Beer Ads headed to Court

Welcome back to Legal Geek. This week, we cover the latest developments in how the Bud Light medieval ad campaign and it's very strange turn as of the Super Bowl this year has led the biggest beer makers in the U.S. to a court battle with one another over corn syrup, of all things.

https://archive.org/details/LegalGeekEp165 

During the Super Bowl, Anheuser Busch launched a new campaign with a 60-second ad showing their medieval king marching casks of corn syrup to the castles of competitors Coors Light and Miller Lite.  This ad and the many that have followed in the weeks since continually make the point that Bud Light is not made or brewed with corn syrup.  Who knew we consumers cared one iota about what was in our mass market beer?

Regardless, MillerCoors, which brews and sells both those other varieties of beer, has sued Anheuser for allegedly violating federal false advertising laws.  But here's the fascinating part of the case: everything in the Bud Light ads is technically true.

It is true that MillerCoors uses corn syrup as a fermentation aid during brewing, but this corn syrup is consumed by the yeast in the process and thus is not present anymore in the final product.  MillerCoors does not dispute this fact.  So how could there be false advertising claims?  Well, the federal law is more complicated than just dealing with the truth.

Insert "You can't handle the truth!"

The Lanham Act, which governs false advertising, has been interpreted by courts in prior decisions to prohibit false statements as well as "literally true" statements that nonetheless mislead or confuse consumers.  Courts have also ruled that indirect statements can be proven false by necessary implications drawn from the broader context of the ad.  So according to MillerCoors, even though Anheuser has been careful not to say that the final beer products Miller Lite and Coors Light contain corn syrup, the implication is that this sweetener is in the final product.  Or even worse, that the much-maligned high fructose corn syrup is in these beers when bottled and sold on store shelves.

Proving false advertisement under such theories is complicated and relies heavily on actual evidence from consumers about being misled or confused.  Given the technical sophistication of your average mass market beer drinker consumer, it may be possible for MillerCoors to produce such evidence.  But this is no slam dunk, and it could be a long and costly court battle between these brewing giants.

What will happen much sooner is a judge ruling on MillerCoors' request for a preliminary injunction on the corn syrup ad campaign.  When dealing with negative claims about competitors in ads, federal judges often defer to the potential harm that can be done and that makes it more likely an injunction will be granted.  Which will pull those Bud Light ads off the air until the case is resolved.  Perhaps corn syrup will finally be the end of the Dilly dilly ad chain stemming back years.

The Bottom Line is, false advertising under federal U.S. law is more complicated than one might think because just like branding laws generally, the goal is to avoid consumer confusion and misleading in any manner.  So while Anheuser has taken great pains to avoid false statements in these corn syrup ads, they still may fall afoul of the law, which would be enough to make all the mountains turn blue.  Dilly dilly indeed.

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Legal Geek No. 164: Space, the Final Frontier...of Intellectual Property?

Welcome back to Legal Geek. This week, we review an interesting question about intellectual property rights as they apply in space.  Is (INSERT Kirk - "Space...The Final Frontier") of IP rights?

https://archive.org/details/LegalGeekEp164 

Patent systems are designed to reward advances in the scientific fields by granting a limited-term monopoly in exchange for full disclosure of your invention and how to practice it.  After the 15 or 20 year term expires, an invention then goes into the public domain for others to freely use, thereby advancing the arts and sciences over time.

It makes sense that these incentives for securing patents are particularly valuable in fields with huge upfront costs of development, like biopharmaceuticals.  In other fields like software, it can be much easier to innovate or design around, and as such, those fields do not find patents to be as much of an incentive.  But one field with huge upfront costs of development does not fit into this mold, and that is space-related tech.  The reason for this may not be immediately apparent, but let's explain why this is the case here.

Patents are granted on a national or regional basis, meaning the monopoly rights you get are limited to the territories where you apply for and obtain the patent.  Although plenty of laws apply to outer space, there are massive loopholes thanks to the territorialism of patent systems that could potentially allow infringers to successfully avoid any patent infringement claims on space tech that is patented in one or more countries on Earth.

Interestingly, the U.S. has been on the cutting edge of trying to make sure whatever patent rights it grants are enforceable as broadly as possible, including in space.  To this end, since a 1972 Supreme Court decision that restricted infringement claims against exporters of components that are assembled overseas into an infringing product, Congress and the Supreme Court have made and interpreted many laws in such a manner to expand the reach of potential infringement claims to actions in other countries.  One of these is 35 U.S. Code Section 105(a), which states that U.S. patents extend coverage to any space object or component thereof under the jurisdiction or control of the U.S.

However, one huge loophole to this is that U.S. law cannot apply to any space object that is carried on the registry of a foreign state.  This is the same as maritime law that applies to ships at sea, depending on what country they are registered in.  Thus, a potential infringing U.S. company could make a device that infringes a U.S. patent if they do so in a spacecraft registered under another country.  Indeed, even launching such a spacecraft from the U.S. may not lead to liability for patent infringement if the infringing item is merely temporarily passing through the country on the way to space.

Considering that a lot of development of space tech occurs in shared spaces like the International Space Station, it seems silly that different sets of patent rules would apply depending on whether you are in the U.S. module, or the Russian module, or the European module of the ISS.  This international cooperation and shared space is not likely to go away anytime soon, leaving the patent reach into space unclear at best.

The Bottom Line is, space tech is one of the types of technology most ripe for the benefits of patent protection.  But unless international laws and treaties are formed that clarify how the territorial patent systems work in space, there will be tons of loopholes and exceptions that make it impossible to really enforce your patents rights in space.  For patents to viably reach the final frontier, they will have to boldly go where no patent law has successfully gone before.  It's an interesting conundrum for the future as we continue to spread beyond the realm of Earth.

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Legal Geek No. 163: Monopoly and Cards Against Humanity fight against Knockoffs

Welcome back to Legal Geek. This week, we review a couple more recent branding battles regarding well-known tabletop games, with reviews of ongoing cases and issues involving Monopoly and Cards Against Humanity.

https://archive.org/details/LegalGeekEp163 

We covered Hasbro last week in their copyright win over The Game of Life, and this week the gaming giant filed a trademark opposition to try and protect perhaps the most iconic brand of gaming, Monopoly.  A Croatian company is trying to register Drinkopoly as a U.S. trademark, and it has been allowed by the U.S. trademark office.  But as we've covered before, allowed applications publish for a few weeks to give the public and other rights holders a chance to object before a trademark finalizes into a registration.  That's what Hasbro did here, consistent with similar challenges filed in the last 2 years against other applications like Monopoly Movement, Monopoly Enterprises, Slotopoly, among others.

Hasbro is relying on its dominant market position to claim that despite the differences in the name, the Drinkopoly brand would lead to consumer confusion about the source of goods for that game.  Hasbro can throw some amazing stats up there, like 220 million sets of the game being sold since 1934, and the marks generating over $3 billion dollars in sales of products in the last decade.  Makes sense why they would spend a little cash being proactive to try and keep others out of the "opoly" brand field.  Hasbro has a good success rate in these trademark oppositions, but we'll keep our eyes on this challenge to see where it goes.

Our second subject this week is the party game Cards Against Humanity, whose owners have become much more willing to challenge other competitors in court or at the trademark office in recent years.  One such challenge wrapped up this week when the Appeal Board at the Trademark Office decided that Cards Against Humanity had a legitimate claim to oppose and stop the registration of a game expansion called Crabs Adjust Humidity.  

The Crabs expansion pack was released by Vampire Squid Cards three years after CAH came on the market, and the name and stylings were chosen as an absurdist rhyme of the original Cards Against Humanity.  Vampire Squid was extremely careful to try and avoid IP infringement here, and indeed, Cards Against Humanity initially sent e-mails granting some level of approval for Vampire Squid to sell the Crabs pack.  However, these agreements began to break when CAH objected to Vampire Squid selling the Crabs expansion pack at Target in 2015, and then this opposition to a trademark application filed the same year.  

The appeal judge ruled that while the two game names have very different literal connotations, the similarities in appearance, pronunciation, and overall commercial impression was too much to allow Crabs Adjust Humidity to co-exist over Cards Against Humanity objections.  Furthermore, although you can lose the right to object to another trademark by acquiescing to it in the field, the court interesting ruled that the early-stage agreements to let Crabs Adjust Humidity be used in some markets was not an effective legal acquiescence to registering the same trademark.  This case may set a precedent that gets cited in many other contexts where some initial approval of a competitor happens before a pull back occurs, so Crabs for everyone in future trademark cases!

So Cards Against Humanity wins again, just like they did when pulling another competitor Humanity Hates Trump off the Kickstarter fundraising platform.  Speaking of Kickstarter challengers to CAH, another knockoff-type adult card game called The Offensive Adult Party Game from a company called The Dragon's Tomb launched this week on the platform.  The game appears to use the same font and black and white card styles as CAH, which may be a bridge too far for a fair use defense.  I'd expect another Kickstarter takedown from Cards Against Humanity here, and if it does happen, it will be interesting to see if CAH gets sued by the company they take down once again, claiming such actions are improper.

The Bottom Line is, the most popular tabletop games are always at risk of competitors carving out places in the market with similar sound names or trade dress.  It is important for brand owners of valuable brands to protect and defend their turf, and that's why these gaming giants Hasbro and Cards Against Humanity will continue to fill this segment's coffers with interesting news stories to cover.  Until next time, enjoy the gaming!

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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. 162: Copyright News on The Dark Tower and The Game of Life

Welcome back to Legal Geek. This week, we check in on a couple recent copyright cases that touch on some of our favorite subjects: fantasy novels and tabletop games.

https://archive.org/details/LegalGeekEp162 

In January, a Rhode Island federal court ruled that the heirs of some people involved with the creation of the tabletop board game The Game of Life could not control the board game's intellectual property, at least from a copyright standpoint.  This was a huge win for Hasbro, who stood otherwise to potentially lose the rights to print the still-popular classic of the tabletop industry.

In the 1950s, the physical prototype for Life was made by employees of Bill Markham.  However, a fellow toy developer named Reuben Kramer developed the idea into a product at his own expense, which made him the sole rights controller when it came to copyrights.  Under separate agreements, Kramer has been paying Markham and his estate more than 30% of royalties received from the license with Hasbro, but the court judged that this does not mean they also share control of the copyright.

This is important because in recent years, more copyright owners have taken advantage of a right known as the termination right.  For licenses and assignments of copyright that occurred on or after 1978, the original author or their heirs can terminate the license or assignment 35 or 40 years after those rights are granted.  This has come into play starting in the last 3-5 years, and it generally allows authors to re-negotiate successful licenses or assignments to extract more money from a publisher.

Markham's estate and company were claiming control of the copyright based on their involvement of making the game prototype, which would have allowed them to exercise the termination right and go directly for more money from Hasbro or some other game publisher.  But the court held that this was a work made for hire under the law, therefore controlled only by the financial backer Kramer, who can choose for himself whether to terminate the copyright license and renegotiate his terms.  It's obviously easier for Hasbro to negotiate if necessary with one owner instead of many, so that's why this is a big win for Hasbro in their game of life.

Our second story comes from the past week, when a Florida federal court dismissed a copyright infringement lawsuit against Stephen King based on The Dark Tower series.  A nephew of a now-deceased comic writer William DuBay claimed that DuBay's 1977 horror comic book The Rook had been ripped off by King when he created the wildly-successful Dark Tower series of novels.  With this series now spawning a movie and a TV series, a finding of copyright infringement could lead to massive damages for DuBay's heirs.

But the Florida court dismissed this claim because while there is some overlap between the time-traveling cowboy lead characters of these two works, this was only a surface level similarity and the differences or dissimilarities go much deeper for these characters and works.  Even if Stephen King had been inspired by The Rook, which seems uncontested, he created his own universe and copied only typical tropes and well-known story elements in these fiction genres, according to the court.  So just like Hasbro, King can sleep a little better knowing his IP has been defended against a financial and legal attack.

The Bottom Line is, these are but two of many examples of how successful creators or publishers can fall into legal battles when big money is involved for copyrighted works.  The music industry is rife with such copyright claims and lawsuits, for example.  With copyright terminations now becoming a viable option, expect even more big stories and products containing creative authorship works in the future.  We'll keep our eyes on future cases of nerdy interest, but if you ever need help navigating these choppy waters of copyrights and IP, just reach out to the Legal Geek or another local counsel.

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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