Nintendo Ends Game of 3-D Printing with Copyright Infringement Claim

August 21st, 2014 by

One of the scariest things for copyright and trademark owners is the rapid expansion of 3-D printing and the ease at which it recreates protected works. In an effort to protect its intellectual property, Nintendo has successfully shutdown sales of a planter featuring a character from Pokemon with a copyright infringement takedown notice.

bulbThe future is here with 3-D printing which has seen expanded growth into the private sector.  While many people use the printers to create such things as plastic forks and knives, some people are using it to recreate copyrighted and trademarked works.  One such case is the Bulbasaur planter that has ruffled some feathers at Nintendo.  Bulbasuar is a cuddly creature from the popular Pokemon universe and a fan favorite among the anime crowd.  If you Google the term “Bulbasaur planter”, you will find 3-D printing instructions to create what you see below: a planter reproducing the copyright protected Pokemon character.

A person used their 3-D printer to create such planters and then decided to sell the planters on Shapeways, a website that is a marketplace for 3-D created products.  The design was advertised as a “succulent monster” but included references to Pokemon and sold for $49. According to the seller of the planters, Nintendo sent down a DMCA takedown notice to Shapeways claiming that the planter was infringing Nintendo’s copyrights; which the planters clearly were.

This situation is reflective of another growing concerning for intellectual property owners as they try to balance the growth of new technology while also protecting their brand.

bulb-planter

 

 

 

Posted in Copyrights, Film / Television, Gaming, Technology


Ex-Student Sues Barnes & Noble for Allegedly Stealing Her School Project

August 20th, 2014 by

If students needed another excuse not to do homework, copyright infringement might be a good one. A former college student has sued both her school and Barnes & Noble for copyright infringement claiming that her bag, designed for a school project, was stolen.

Diana Rubio was a student at New York’s Fashion Institute of Technology, a branch of the State University of New York, where students specialize in fashion design and business.  Back in 2010, Rubio claims that as part of her accessory drawing course she was required to submit a drawing of a proposed bag for Barnes & Noble; the drawing would compromise 30% of the class grade.  Rubio claims that she was not informed that the bag design might ever be used by Barnes & Noble when she submitted “The Everything Backpack”.  You can see the actual design on the left below; next to the product that Rubio claims infringes her design.  Sometime later, FIT told Rubio that she won a student competition with her design.  A year later, FIT requested that Rubio sign over the rights to the design to Barnes & Noble.  Rubio claims she didn’t and has never signed such a document.

Rubio claims that Barnes & Noble took her design and created a bag based off her “The Everything Backpack”.  Now, Rubio wants FIT and Barnes & Noble to pay up for using the design without permission.

There may be a couple barriers to Rubio winning this lawsuit.  First, utilitarian aspects of a design are not protectable such as a bag that holds items.  Rubio would need to show that the non-utilitarian aspects of her design have been copied.  Second, Rubio, to prove copyright infringement, must establish that the designs are substantially similar.  You can look at the below and draw your own conclusion.  I don’t think liability is necessarily in the bag on this case but we shall keep it monitored.

bnbag

 

 

 

Posted in Brands, Copyrights


Blue Jay Blues: Toronto Takes on Creighton University over Team Logo

August 19th, 2014 by

Blue jays are not known as the most peaceful species of birds; they are known to be aggressive and territorial especially about their trademarks.  MLB’s Blue Jays and the Creighton University Bluejays have coexisted for years using the same mascot but when Creighton changed their logo to something that looks very similar to the MLB team’s logo, the bird battle was on.

bj-postSince the Toronto Blue Jays first came into existence in 1977, they have always used variations of a similar logo, a pretty mean looking Blue Jay.  Creighton University, based in Nebraska, is also called the Bluejays but has used a cartoonish style logo for many years.  You can see the old logo to the right.  However, last year the university changed its logo to a much more aggressive bird logo, one that reminds many of Toronto’s logo.  You can see the two logos below with Toronto’s on the right.

Toronto argues that the newly upgraded logo, when used in connection with the University’s goods, such as t-shirts and hats, causes confusion and makes the public believe that the two logos are affiliated and that such goods have their origin with the MLB team, when they do not.   The birds will peck this battle out in front of the Trademark Trial and Appeal Board but no litigation has been filed…yet.

bjvbj

 

 

 

Posted in Brands, Sports, Trademarks


Did Piracy Make “The Expendables 3″ Expendable?

August 18th, 2014 by

It was a disappointing weekend for Sly Stallone and The Expendables 3 movie. Many people blame a bad script or burnout because it was a threequel or is it because a pristine HD quality of the film was leaked early? As detailed below, the studio behind the action packed movie has been battling pirates that have shared the movie online. The film finished fourth in the box office race with a take of only $16 million behind three previously released films including Teenage Mutant Ninja Turtles and Guardians of the Galaxy.

At last estimate the pirated version of the film has been seen by 2.2 million people who may or may not have headed to the theater this weekend. A similar leak didn’t hurt X-Men Origins: Wolverine which still made well over $300 million worldwide. Also, neither film  received favorable reviews. The Expendables 3 is currently rated at only 33% favorable on Rotten Tomatoes.

While piracy may have affected the box office take, the final gross may affect the decision to move forward on the all female proposed spin-off of the film entitled The Exendabelles.  Whatever way you look at it, not a good weekend to be an 80′s action star.

expendables3

Originally Published on July 29, 2014.

Stallone is going to have to send in the Expendables to clean up this problem.  A full three weeks before its theatrical release, a high quality pirated version of the Expendables 3 has made its way online and is being downloaded like crazy.

Expendables 3 is not released until August 15, 2014 and features a who’s who of action stars of the 1980′s including Stallone, Gibson, Schwarzenegger and Snipes.  However, three weeks before its opening a pirated copy of the movie started appearing on Bittorrent websites.

In 2009, a similar leak occurred when a version of the X-Men Origins: Wolverine went viral pre-release.  An FBI investigation in that case lead to a Bronx man being arrested and sentenced to one year in prison for uploading the movie.

According to Variety, as of Sunday, the movie has been downloaded 1.13 million times.  In the United States, the average movie ticket cost is $8 and just assuming that half the downloads came from the United States this is more than $4.5 million in lost revenue for the action flick.  This isn’t the series’ first brush with piracy,  as the Expendables producers sued more than 23,000 Bittorrent users that had illegally downloaded the first movie in the series in 2011.

The pre-release of the movie is quite damaging to the box office return and reminds copyright owners that they need to stay vigilant to protect their intellectual property rights.  I am sure some arrests or lawsuits will result from this leak.

 

 

Posted in Copyrights, Film / Television, Internet, Technology


The Real “Clean Slate” Can’t Sue “The Dark Knight Returns” over Trademark Use

August 15th, 2014 by

darkknightrises-postIt wasn’t a “clean slate” before the Seventh Circuit Court of Appeals for the owner of the trademark.  The appeals court affirmed the ruling of the lower court dismissing a case and Warner Bros. over the use of the term “clean slate” in the final installment of Christopher Nolan’s Batman trilogy.

In 2012, Warner Bros. released The Dark Knight Rises which featured Selina Kyle (Catwoman) exchanging her burglary skills in exchange for a software program called “the clean slate” which would erase all traces of Kyle’s criminal past.  I won’t spoil the ending to the movie, like the Seventh Circuit did, but the program plays a vital role in the film.   Well apparently there is a real program and registered trademark CLEAN SLATE that did not give permission for the use of the mark in the film.

Fortres Grand Corporation develops and sells a security software program that wipes away any user’s changes to a shared computer; the program is used at schools, libraries or hotels to keep public computers functioning properly and free of private data.   In association with this program, the CLEAN SLATE trademark was registered in 2001.  Fortres claims that after the film was released, there was a significant decline in sales of its software and made the claim that potential customers may have stopped purchasing the software because they believed it was illicit or phony.

Fortres sued Warner Bros. for trademark infringement and unfair competition.  The District Court dismissed the case for failure to state a claim concluding that Fortres had not alleged a plausible theory of consumer confusion and Warner Bros. was protected by the First Amendment. The Appeals Court affirmed stating that Warner Bros. put out no such merchandise using “the clean slate” and that only confusion would come from the movie and the real product and the court found that it would be implausible to confuse two such dissimilar products. This litigation is effectively wiped from the court system unless Fortres appeals to the Supreme Court but we will save that discussion for the sequel.

 

 

Posted in Comics, Film / Television, Technology, Trademarks



© Copyright 2013-2014, Gibney, Anthony & Flaherty, LLP. All Rights Reserved.
Attorney Advertising

This blog is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. Content does not constitute, and should not be construed as, legal advice. The contents of this blog may be considered attorney advertising in some states.

The views and opinions expressed on this blog are those of the authors and do not necessarily reflect the official policy or position of Gibney, Anthony & Flaherty, LLP.