Tuesday, December 30, 2008

Deceptive Hot Dogs: Food Trademarks

Found in a complaint in a recently filed trademark case:
    "The hot dog, synonymously identified over the years by a host of names including frankfurter, sausage, frank, wiener, dog and others, has a rich and long history in the United States."


Ok, I confess, I have no reason for posting this other than the fact that it amuses me that the attorney who wrote this sat down to write out synonyms for hot dogs. Some other synonyms include:


Wednesday, December 17, 2008

Barbie v. Bratz: Scope of employment and tainted copyrights

Think that idea that you put together in your free time is free for you to use? Think again. While not binding in any court here in Minnesota, the legal battles between Barbara Millicent Roberts (Yes, that's her full name) and Cloe, Sasha, Yasmin, and Jade recently took a turn for the worse for Bratz manufacturer MGA Entertainment Inc. and are a good example of why creative professionals need to understand what their employers view as their work responsibilities, and why companies hiring creatives need to make sure they know the origins of those great ideas coming from new employees.

After a large number of Mattel employees, including Bratz designer Carter Bryant, defected and came to work at MGA and MGA launched its Bratz line, Mattel filed suit claiming the Bratz dolls were designed on their dime and therefore they held the copyright for their design. After a jury trial that resulted in a jury finding that the original four Bratz dolls where the property of Mattel, District court Judge Stephen Larson ordered MGA to stop producing MOST of its dolls and accessories and to stop selling them in February 2009 (with remaining stock to be recalled and destroyed). Additionally, Judge Larson (who earlier this year wrote a decision involving the heirs of Superman co-creator Jerry Siegel) ordered that early drawing produced by Carter Bryant that were created while he was employed at Mattel be turned over to Mattel.

This case illustrates two interesting issues in copyright law. (1) if you are an employee, work performed in the course of your employment is the property of your employer; and (2) ownership of a copyright includes the right to make derivative works.

Scope of Employment
Under U.S. Law, works created in the scope of your employment are considered to be the property of your employer. Seems fairly cut and dried, but for Carter Bryant the issue was a little more convoluted. Mr. Bryant's design responsibilities at Mattel were limited to hair and fashion design. After leaving Mattel in 1998 for a stint in retail sales, Bryant claims to have conceived the dolls, he then returned to Mattel in 1999, only to defect with other Mattel employees in 2000. While eventually coming to the conclusion that the original Bratz were developed during Bryant's employment with Mattel, it is interesting to note that the jury felt that these designs fell into the scope of his employment of hair and makeup design.

Derivative Works
In his ruling, Judge Larson said "Mattel has established its exclusive rights to the Bratz drawings, and the court has found that hundreds of the MGA parties' products, including all the currently available core female fashion dolls Mattel was able to locate in the marketplace, infringe those rights," Even though only four dolls were found by the jury to be the original property of Mattel, the fact that hundreds of subsequent derivative products were created based on those products means that ownership in the copyrights belong to Mattel.

This result of this case illustrates that while internal segmentation of job responsibilities exist in large corporations, companies may not rely on such designations when it comes to claiming ownership of multi-billion dollar product lines, and that once the door is open and a product line has been tainted with an infringing copyright, the entire product lines might end-up being destroyed and the manufacturing floor will go silent.

Tuesday, December 9, 2008

Now on Twitter

Just added myself to Twitter. Want to know how that goes? Log on to find out.