At this point, everyone knows A&E’s hit television show “Duck Dynasty.”  The characters on the program have coined various catch phrases, including Uncle Si Robertson’s declaration that “My Favorite Color is Camo.”  The popularity of this quip led A&E to produce a line of camouflage clothing marketed to the show’s fans – a move which apparently generated “$400 million in revenues from sales of Duck Dynasty branded merchandise at Wal-Mart in 2013 alone,” according to a new lawsuit filed against the network.  The total revenues from the Duck Dynasty brand are unclear, but A&E reportedly also sells the clothing through merchandising deals with Sears, Kohl’s, Sports Authority, and Target. A Florida retail company, Hajn, alleges that it came up with the “My Favorite Color is Camo” trademark and began selling merchandise using the trademark in 2011, a year before “Duck Dynasty” first aired.  So, naturally, it has showed up to “quack some skulls in the duck call room,” legally speaking. Hajn sent a cease and desist letter to A&E asking that it stop selling the merchandise, but apparently the sales continued. So, on July 22, Hajn filed suit for willful trademark infringement and unfair competition in the U.S. District Court of the Southern District of Florida to prevent A&E from using its purported trademark. A&E has apparently declined to comment, and as of press time, it has not yet filed a response to the lawsuit.

We will say that we were impressed with the color images of advertisements – and even tweets – embedded into the complaint. Longtime readers may recall that back in 2010 we here at Abnormal Use remarked:

While it is customary to attach photographs as exhibits to memoranda in support of motions, rarely does the attorney actually embed the photograph into the pleading itself. (This is changing for the better, though.).

Whatever the case, we should all be patient to see where this one goes, or as Uncle Si says “America, everybody is in too big a rush. Lay back, take a sip of tea, mow a little grass. Then if you get tired, take a nap.”

The suit is Hajn, LLC v. A&E Television Networks, LLC, 2:14-cv-14291-KAM (S.D. Fla).

Today, we here at Abnormal Use once again continues our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn once more to lawyer blogger James Daily of The Law and the Multiverse blog, an incredibly fun site in which the authors apply the laws of the real world to the exploits of comic book superheroes. You might recall that we interviewed James and his co-blogger Ryan Davidson way, way back in March 2011. James was kind enough to submit to a second interview with Abnormal Use, which is as follows:

JIM DEDMAN:  We first interviewed you in March 2011, just a few months after the blog debuted in late 2010. In the years since, what is the most important lesson you have learned as a legal blogger?

JAMES DAILY: I’ve learned a few different lessons, but it’s hard to say which is the most important.  One thing I’ve learned is to change it up from time to time.  Some of my most popular posts have been about unusual topics, such as the contract from The Hobbit.  They’ve also been a nice change of pace for me.

DEDMAN: You’ve achieved an immense amount of attention as a result of the site, including interviews with national publications, a book deal, and even your own Wikipedia entry. What do you feel has been your biggest success with the site?

DAILY:  All of that attention has been a continual surprise.  I think the biggest success has been that I still get more questions from readers than I have time to fully answer.  It underscores the point that there is still tons of material to write about, and as an attorney it’s always a great feeling when someone wants to know your opinion about a legal issue, even a fictional one.

DEDMAN: As the blog approaches its fourth anniversary, what challenges do you face in continuing to find new material for the site?

DAILY:  The main challenge I have is finding the time to write, not finding new material.  I have a backlog of dozens of questions from readers, and I’ve fallen behind on Daredevil and She-Hulk, to say nothing of less law-focused comics.  The creativity and breadth of questions from readers never ceases to amaze me.  They often come up with better post ideas than I could.

DEDMAN:  Since the blog came into being in 2010, what has been your favorite reaction from a reader to the site and its mission?

DAILY:  I have received quite a few letters from law students, lawyers, and comic book fans that include some version of “I’m so glad I found the site.  I thought I was the only one that thought about this kind of stuff.”  It validates the thesis of the site, and I think it’s great that the blog has contributed to a community of sites centered around discussing the law and pop culture.

DEDMAN: As you know, there is a burgeoning movement of “real” superheroes out there making news in some jurisdictions. What have you learned from writing the site that might be of benefit to them?

DAILY: The main thing I’ve learned is that it would be very, very difficult to be a comic book-type superhero that stays within the bounds of the law and yet still does more than act as a member of the neighborhood watch.  The law has evolved to frown on “self-help”, with the possible exception of modern stand-your-ground and castle laws.  It’s a legal tightrope act without a net, and I don’t recommend it.

DEDMAN:  Is service by publication the only way to serve a superhero or villain with a lawsuit?

DAILY:  It depends on the superhero or villain.  Some superheroes have very public identities (e.g. Jennifer Walters/She-Hulk and Tony Stark/Iron Man).  Even some villains act more-or-less in the open, such as Wilson Fisk/Kingpin.  And of course even a villain such as The Joker could be served during one his many (brief) stays in Arkham Asylum.  Even more reclusive characters such as Batman and Superman have accepted process (subpoenas anyway) at the Justice League headquarters on the Moon.  A really aggressive process server might stage a crime (with a “victim” who was in on it) in order to attract a superhero’s attention.  That might make for an interesting comic book story!

BONUS QUESTIONS:

DEDMAN:  What has been your favorite post since you founded the site?

DAILY:  I have trouble picking my favorite anything, but I really enjoyed the opportunity to interview Mark Waid (writer of Daredevil, among many other things) and Daniel Reeve, the artist who created the contract for The Hobbit movies.  That was definitely something made possible by the success of the rest of the blog.  I enjoyed being able to take a peek behind the scenes and hopefully ask questions that my audience would want to know about that wouldn’t be asked elsewhere.  Since you’ve also interviewed Mark Waid (and a host of other interesting folks), I think you can understand the appeal.

DEDMAN:  What is your favorite superhero movie?

DAILY:  Another favorites question!  I’m going to punt and say the Christopher Nolan Batman movies and Captain America: The Winter Soldier.  But honestly the MCU movies have been so consistently good that it’s tempting to say all of them.  I’ve generally enjoyed them more than the Spider-Man and X-Men movies, although The Wolverine and Days of Future Past were quite good.

DEDMAN:  What do you feel is the most disastrous depiction of the legal process in popular culture, and why?

DAILY:  That’s a tricky one.  Disastrously wrong or disastrous for its negative impact on society’s perception of lawyers or the legal process?  I tend to shy away from writing about stories that get the law laughably wrong, since it’s not much fun to beat up on someone’s creative work, especially when legal accuracy is rarely central to the plot.  I’ll leave that to the experts.

BIOGRAPHY:  James Daily is an attorney licensed in Missouri and a graduate of the Washington University in St. Louis School of Law. He is also registered to practice before the United States Patent and Trademark Office. He and Ryan Davidson started the Law and the Multiverse blog in November of 2010. You can follow him on Twitter here.

We here at Abnormal Use love music, especially the classics of the good ‘ole days.  Understandably then, our attention has been drawn to the recent controversy involving Led Zeppelin’s 1971 hit “Stairway to Heaven.”  To quickly summarize, the estate of Randy California of the band Spirit has recently claimed that Zeppelin plagiarized his song “Taurus”—or more specifically, the universally recognized opening chords that introduce the Zeppelin smash hit.

We are surprised by the claim and likely pending lawsuit for several reasons.  First, “Stairway to Heaven” was released in 1971. Again, 1971!  Can California’s estate bring this claim more than forty years after the alleged rip-off?  According to the Supremes (get it?), yes.  The United States Supreme Court recently held that no delay is too long when it comes to bringing a copyright infringement suit.  Just as an FYI, the case involved a dispute over the screenplay of Raging Bull.  Classics overload in this blog post.  In any event, the decision confirms that yes, California’s estate can bring a lawsuit up to three years after an infringing act, which essentially sets up a rolling cause of action.   Led Zeppelin is gearing up to release a new version of its iconic album Led Zeppelin IV, which provides the estate with its infringing act.

Secondly, where do we draw the line between paying tribute and flat-out plagiarism?  They say imitation is the sincerest form of flattery.  The problem may lie by Zeppelin’s failure to give the proverbial “shout out” to California or Spirit.  According to Forbes, the band has a long history of appropriating songs and chords without crediting the original artists.  In fact, the band has settled or defended copyright cases over “The Lemon Song,” “Whole Lotta Love,” “Babe I’m Gonna Leave You,” and “Dazed and Confused.”  Perhaps Aloe Blacc’s track “The Man” provides guidance.   The song clearly pays homage to Elton John’s hit “Your Song” in its chorus, which repeats “you can tell everybody” in a similar fashion to John’s.   However, on his production company’s website, Blacc and the producers have provided the credits for the song, including crediting an interpolation from “Your Song” by John.  For his part, Sir Elton is loving Blacc’s track, noting that the influence means his music is still relevant and it gave him a “big kick up the bum.”  What a cheeky fellow.

We will see how this story develops in light of Zeppelin’s upcoming album release.  In any event, it is undeniable that the opening riff to “Stairway to Heaven” is iconic, often-emulated, and frankly, maybe even overplayed?  Party on, Wayne.

Spoiler alert! For “Game of Thrones” fans, it was an interesting twist when Tyrion Lannister recently balked at a plea deal and demanded trial by combat in the criminal proceeding to determine whether he killed King Joffrey. This got us thinking: what exactly is trial by combat?  We here at Abnormal Use have become fascinated with the concept, and our editor couldn’t stop tweeting about it last week (as is evidenced by his tweets here, here, here, and here).

Well, after some research, we learn that it’s “a concept attributed to the Normans in the Middle Ages wherein disputants would square off and battle it out. The one left standing would be declared the victor.”  Obiter Dicta, 89 ABA J. 12 (March 2003). Trial by combat “essentially resolves all legal disputes by pitting the parties against one another in a no-holds-barred fight to the death. At the conclusion of the proceedings, the person who is not dead is deemed the prevailing party.”  Apparently, our modern civil trials evolved from trial-by-combat.  See Capers G. Barr III, Prepare for the Peacemakers, 7 S.C. Law. 21, 22 (JULY/AUGUST 1995) (“Buried in the recesses of the trial lawyer’s psyche is an awareness that modern trials evolved from a more primitive form of dispute resolution—trial by combat.”); Parham v. State, 250 So. 2d 613, 614 (Ala. Crim. App. 1971)(“A trial is an adversary affair drawing much of its etiquette from medieval trials by combat”). How about that?

This past Saturday, April 5, 2014, marked the twentieth anniversary of the self-inflicted death of Nirvana lead singer Kurt Cobain. You may have seen a number of articles and think pieces about the occasion over the weekend. Tomorrow, though, marks the anniversary of the day in 1994 when the world learned of Cobain’s death. That was April 8, 1994, a Friday, which meant that his fans – mostly members of Generation X – began that weekend with the news. Many learned of Cobain’s death from anchor Kurt Loder in this April 8 MTV News broadcast. As far as we here at Abnormal Use are concerned, all that needed to be said about the legacy of Cobain was addressed in 2004 when Spin magazine writer Chuck Klostermann speculated about an alternate history in which Cobain lived. That said, as members of Generation X ourselves (and as lawyers who can’t resist an opportunity to opine on a subject of interest), we feel compelled to comment on the anniversary (despite the fact that Cobain would likely not have appreciated a law blog weighing in on his place in music history). Oh, well.

Cobain was an interesting contradiction. He brought punk rock music to the masses (making 1991 the year that genre finally “broke” into the mainstream). But he clearly disdained the many suburban fans who flocked to his band’s shows. “This is off our first record, most people don’t own it,” he said to the crowd on November 18, 1993 as he introduced “About A Girl” during the recording of Nirvana’s MTV Unplugged in New York. With that statement, Cobain passive aggressively suggested that the general public, who had heaped praise upon him and bought his album in droves for more than two years at that point, was somehow neglectful in not owning 1989’s Bleach, his band’s first record. Basically, if a fan was not the type of person he would have befriended in high school, or if a listener did not share his political and social opinions, Cobain didn’t want their support. An interesting marketing strategy, that. We suspect that if Cobain had lived into the Internet days, we’d be hearing a myriad stories about his rudeness to certain segments of fans (which is consistent with some actual anecdotes we’ve heard about him in the early 1990’s, as well).

But you can’t deny his talent. He mixed the elements of light hearted pop with heavy grunge and punk (in a far, far more sophisticated and appealing way than what passes for punk, or the inappropriately named “pop punk” genre, these days).  Even within the same song, he would shift from melodic and almost quiet poppiness to heavily distorted and loud guitar, and in so doing, create an extraordinarily catchy tune. Although he downplayed his lyrical abilities (telling interviewers that the lyrics were the last part of a song he would develop, sometimes as late as the day the song was to be recorded), his words, often contradictory themselves, were more thought provoking than he would claim them to be. In addition to his own merits, he introduced a generation of young music listeners to bands they’d never before encountered such as the Melvins, Shonen Knife, Scratch Acid, Daniel Johnston, the Raincoats, and the Wipers. On the aforementioned Unplugged album, he covered the Meat Puppets, Leadbelly, the Vaselines, and even David Bowie. Back in the early 1990’s, there was no Internet (at least not one that was accessible to the general public), and the task of finding new music – especially that which was not promoted on MTV or discussed in Rolling Stone or Spin – was a challenge indeed. In those days, a decision by a musician as famous as Cobain to don a t-shirt promoting a previously obscure band had an immense effect, and thus, fans of Nirvana, if they elected to do so, could explore Cobain’s own musical influences and save such bands from the ash heap of music history. On this very point, Anthony Carew of About.Com once wrote:

In 1992, in a pre-internet era, the ability to find out about fringe acts was limited to what your local record-store was like. Information was a limited commodity, and wearing someone’s t-shirt made a statement long before last.fm profiles did the work for you. In this day and age, when the internet offers the possibility of everyone being an obscure music expert, there’s no comparable act; if Jack White had worn an Ariel Pink t-shirt to the 2005 MTV VMAs, no one would’ve batted an eyelid.

A historical irony: Sometimes, the types of fans Cobain disdained might discover the records and artists he himself held dear.

Whatever the case, on this somber anniversary, to Cobain, we say requiescat in pace.

A few other thoughts and memories on this occasion:

In the 2000 film High Fidelity, based upon the book of the same name by Nick Hornby, John Cusack plays world weary record store owner Rob Gordon. In film, Gordon remarks, “Some people never got over ‘Nam, or the night their band opened for Nirvana.” That’s more profound than you might realize, especially if you know someone who was a member of band who actually did open for Nirvana.

Like many, I spent much of the night of April 8, 1994 driving around my city (Houston, Texas) listening to Nirvana songs on the radio. Of course, the deejays couldn’t resist repeatedly playing the “No, I don’t have a gun” line from “Come As  You Are,” the second single from Nevermind. I remember thinking that it was obnoxious for them to be doing so.

In December of 1993, I had the chance to see Nirvana perform in Houston. It was a Monday night (a school night), so I decided to skip the show. Big mistake, obviously.

Cobain does make it into case law and you’ll find his name if you do a result of same. In United States v. Wecht, No. 06-0026, 2006 WL 1669879, at *1 (W.D. Pa.  June 13, 2006), the court addressed the motion to suppress of famed pathologist Cyril Wecht. According to the opinion in that case, federal agents took possession of a number of Wecht’s files, including “29 unlabeled boxes which contained Dr. Wecht’s private autopsy files in accordion folders, including files on various high profile matters including the deaths of Marilyn Monroe, Elvis Presley, Tammy Wynette, Kurt Cobain, and other notable celebrities and public figures.” Wecht is known in JFK assassination conspiracy circles as a fierce critic of the Warren Commission. But there’s more: Courtney Love Cobain, as Administratrix of the Estate of Kurt Cobain, was a party to Neighbors & Friends of Viretta Park v. Miller, 940 P.2d 286 (Wash. Ct. App. Div. 1997), a case in which “[t]he Neighbors and Friends of Viretta Park, an unincorporated voluntary association, and several individuals who live in the vicinity of Viretta Park  . . . brought this lawsuit against the City of Seattle, its Parks Superintendent Holly Miller, and Howard and Sheri Schultz seeking declaratory judgment that vehicles are barred from the Viretta Park right of  way, and that the City did not have the authority under the plat dedicating the Park to allow the Schultzes to utilize the Park right of way for vehicular access to their property.” We’re not entirely sure why the estate was a defendant in that matter. (Side note: The defendants in that case prevailed on their laches defense. How about that?).

Speaking of conspiracies, you’ve probably heard the nonsense espoused by some who contend that Cobain was murdered. Tom Grant, a former Los Angeles Sheriff’s Office detective turned private investigator, is the foremost among them. He’s turned this theory into an income generating mechanism for himself. On his website, he sells a book, more of a large pamphlet of sorts, really, which he has called The Kurt Cobain Murder Investigation. As civil litigators, we’ve seen a lot of lousy, lazy, and poorly developed expert opinion reports in our time, but this one may take the cake. The one word that kept recurring to me as I read Grant’s work was Daubert.

Also worth reading today: “Remembering April 8, 1994” by Chuck Norton of Dead Journalist.

Most of us consider music to have reached its prime during the days of our youth.  Be it the 60’s, the 70’s, or even the 80’s, music of one’s formative years is arguably the best a person will ever hear.  Today’s music just doesn’t cut it.  Instead, we download the songs of yesteryear on iTunes or have our Sirius/XM radios perpetually set on the 90’s channel.  (Those were the days.). Others go so far as to purchase “as seen on TV” compilations like “We Love the 80’s” or, better yet, “Monster Ballads.”  After all, who could ever complain about having the world’s greatest music in one accessible CD?  Believe it or not, there is actually a proposed class of angry music-lovers who have filed a new lawsuit in a New Jersey federal court against Tutm Entertainment (d/b/a Drew’s Entertainment), the producer of the monumental “Hits of the 80’s” and “Hits of the 90’s” albums. Why is the proposed class so angry? According the the complaint filed by Celeste Farrell, the named plaintiff for the proposed class, purchasers of these albums aren’t getting the classics they grew to love but, rather, “poorly re-recorded songs.” Specifically,Farrell alleges:

Instead of conveying the source of the recording to allow the consumer to make an informed purchase decision, Tutm provides no information on the Albums’ cover or back label to indicate to the consumer that the songs are not the original songs.

We here at Abnormal Use have not listened to these albums, so we cannot comment on the quality of the re-recordings and cover versions contained on them. But, we don’t see how anyone could really complain about any recording of “Ice, Ice Baby,” whether it be the original or a new version? That said, when people fall in love with a song, they fall in love with a particular version of that song (usually the first version of it they ever heard which, of course, is typically the original version). Anything else might as well be “new music.” We can understand purchasers hoping to get the same when buying these compilation albums.

Whether Tutm’s conduct in selling these albums without a disclosure is fraudulent, however, is another question. Sure, Tutm may have known purchasers would expect the original recordings. But, they also may have thought people could be equally as excited about new recordings of the classics? After all, isn’t Motley Crue still touring? Whatever the case, we’re not sure that covers of “Jessie’s Girl” or “Take on Me” should be litigated in federal court.

Last week, Mötley Crüe band members Vince Neil, Mick Mars, Nikki Sixx, and Tommy Lee signed a contract to bring an end to the band after one final farewell tour. The contract, deemed by the band as a “cessation of touring agreement,” is supposedly a means of ending the band in a formal and cordial fashion and allowing the members to enjoy individual projects. The real question is whether it does just that.

In a statement to CNN about the contract, Mötley Crüe attorney Doug Mark said:

Other bands have split up over rancor or the inability of people to get along, but this is mutual among all four original members and a peaceful decision to move on to other endeavors and to confirm it with a binding agreement.

Mark’s words are all well and good, but we here at Abnormal Use think the contract is as effective at ending the band as the release of Generation Swine was at re-launching them. The contract is signed by all four members and, thus, can be modified by those four members if they so choose. Even if contracts couldn’t be modified, who is going to enforce it if the band reunited? For the contract to serve its purpose, it would need to be signed by representatives of the public-at-large. Or, at least those Mötley Crüe fans who purchase tickets for the farewell tour thinking they are part of the band’s last hurrah.

Really, this contract is about the fans. The band attempting to assure its fans that this farewell tour is the real thing and won’t be followed by a farewell-farewell tour. Last year, Vince Neil alluded to this idea, telling the Oakland Press, “We want to go out on top. . . . but it’s not going to be like a KISS farewell to the farewell to the farewell tour.” We respect the notion, but let’s see if they follow through.

If Mötley Crüe does again re-unite at a later date, who is really harmed? We understand that there is some sentimental value to fans as having been a part of a band’s last tour. Perhaps some fans who otherwise may not have gone to a tour purchase tickets due to this fact. But Mötley Crüe isn’t some band we are ready to see call if quits. Even in their 50s, this is still the band that gave the world “Dr. Feelgood” and “Girls, Girls, Girls.” And for that, if the band does decide to continue touring, we here at Abnormal Use will forget that contract ever happened. Maybe.

Earlier this month, FX announced that all 530 episodes of “The Simpsons” will be available for to legally watch on the Internet.  All of “The Simpsons” episodes will be available on FXX, a new channel in the FX Network, and through FXNOW, a recently released video on demand app. The deal could cost FX as much as $1 billion dollars.  To date, it has never been possible to legally watch “The Simpsons” on the Internet. There is that word again . . . Legally.

Until recently, a Canadian gentleman has run “Watch The Simpsons Online” and “Watch Family Guy Online.”  The websites launched in 2008 and 2009, respectively.  As the old moniker goes, pigs get fat, hogs get slaughtered.  Both sites earned a combined 87 million visitors.  Though “Watch The Simpsons Online” has dealt with legal issues since 2008, it has operated more or less without impediment until October 2013, when FOX filed a copyright infringement lawsuit in the federal court of Canada.  Shortly thereafter, on October 9, 2013, the site operator’s home was raided.  The site operator did not appear in the lawsuit and was presumably put into the Canadian version of default.  In his absence, the federal court awarded FOX over $10.5 million dollars.

The site operator is unable to pay the judgment, and apparently, he did not make a sustainable living from the sites.  He has since stated that the experience is the worst thing imaginable and that he simply wanted “the dinosaurs would just give their consumers what they want — which is to be able to stream their videos online easy, fast, worldwide.” FOX has showed no signs of letting up and is currently attempting to execute the judgment.  According to reports, the site operator stated that “Fox are pursing for the money and they are doing so as hard as they possibly can. They’ve ruined my life and continue to do so as long as they don’t leave me and my family alone. As it’s been referenced by a lawyer: ‘they are killing a fly with a nuke’.”  The same reports indicated that FOX’s attorney stated that “the significant judgment in this case points up the risk courted by those who engage in Internet piracy, in particular for commercial purposes.”

While we disagree with converting the intellectual property of another, especially for financial gain, the site admin has a point.  Both the number of visitors to the sites and the potential $1 billion value of the FX deal, make you scratch your head at why FOX waited this long to provide access to “The Simpsons.”  Either way, it’s probably wise just to wait until August to get your fill of The Simpsons. Also in case FOX reads this, we here at Abnormal Use have never heard of either site or the ability to stream “The Simpsons” prior to this story. We promise.

Back in 2010, our fearless leader Mills Gallivan offered his thoughts about To Kill a Mockingbird in a post entitled “Bluejays and Mockingbirds.”  Today, we revisit To Kill a Mockingbird, or rather, provide an update on Harper Lee, the author of one of the most brilliant legal novels ever written (in our own humble opinion).

As reported by CNN, Lee is suing the Monroe County Heritage Museum for trademark infringement.  As quoted by CNN, the lawsuit makes the following claims:

“The museum seeks to profit from the unauthorized use of the protected names and trademarks of ‘Harper Lee’ and ‘To Kill a Mockingbird.’ It is a substantial business that generated over $500,000 in revenue for 2011, the last year for which figures are available,” said the lawsuit filed last week. “But its actual work does not touch upon history. Rather, its primary mission is to trade upon the fictional story, settings and characters that Harper Lee created.”

For its part, the museum isn’t admitting any infringement.  USA Today quoted the museum’s attorney as follows:

The museum’s Birmingham attorney said the tourist attraction is within its rights to educate the public and preserve the area’s history. “It’s sad that Harper Lee’s handlers have seen fit to attack the nonprofit museum in her hometown that has been honoring her and the town’s rich history associated with that legacy for over 20 years,” [Matt] Goforth said.

Goforth further stated that “Every single statement in the lawsuit is either false, meritless, or both.”  Some of the facts surrounding the case, however, appear to suggest otherwise.  First, the website for the museum is tokillamockingbird.com.  The gift shop is called “The Bird’s Nest” and contains lots of “Mockingbird” memorabilia, according to news reports.

The case is pending in the the Southern District of Alabama (C.A. No. 1:13-cv-490), where it was filed on October 10, 2013.  Lee seeks a permanent injunction against the museum.  On November 5, 2013, the museum filed a motion to dismiss for failure to state a claim.  As of the date of this post, the court had set out a briefing schedule for that motion, and states that it will take up the motion on November 26. What will Lee have to prove?  In order to succeed on the merits of a trademark infringement claim, a plaintiff must show that the defendant used the mark in commerce without her consent and  that the unauthorized use was likely to deceive, cause confusion, or result in mistake.  Davidoff & CIE, S.A. v. PLD Int’l Corp., 263 F.3d 1297, 1300-01 (11th Cir. 2001).  Seven factors are considered as to the likelihood of confusion: (1) type of mark; (2) similarity of mark; (3) similarity of the products the marks represent; (4) similarity of the parties’ retail outlets and customers; (5) similarity of advertising media; (6) defendant’s intent; and (7) actual confusion. Frehling Enters. v. Int’l Select Group, Inc., 192 F.3d 1330, 1335 (11th Cir.1999). Of these, the type of mark and the evidence of actual confusion are the most important. Aronowitz v. Health-Chem Corp., 513 F.3d 1229, 1239 (11th Cir. 2008). Federal courts may grant permanent injunctions where infringement is found to have occurred in order to prevent further infringing use of a mark, and such injunctions should be designed to keep the former infringers a safe distance away from the protected mark. Id. at 1242.

This lawsuit is getting a lot of attention from the media world, and we are also interested in the outcome.  We’ll follow along with everyone else, and let you know of any developments.

Recently, our own Fourth Circuit Court of Appeals considered the First Amendment in the context of 21st century technology.  As you likely know all too well, Facebook has invaded most areas of our lives – it seems only appropriate that it envelop our jurisprudence, as well. As reported by The Washington Post, the Fourth Circuit has held that by clicking the “Like” button on a Facebook post a person is exercising his or her First Amendment rights. The case is Bland v. Roberts, — F. 3d —, No. 12-1671 (4th Cir. Sept. 18, 2013) [PDF].

The facts of the case are straightforward, but they inspire some good old fashioned eye rolling.  A Hampton, Virginia sheriff’s deputy was fired after he clicked “Like” on the Facebook campaign page of the candidate running against his boss.  [Sidenote:  Why would you do that?  This is a clear violation of the “silly plaintiff” rule.  But we digress.]  The fired employee, Daniel Ray Carter, sued, saying that he was fired for exercising his free speech rights.  The federal district court granted summary judgment against Carter on the grounds that clicking “Like” was not an actual statement, and thus, it did not rise to the level of protected speech. Both Facebook and the ACLU filed amicus briefs in which they disagreed with the district court.  The Fourth Circuit overruled the district court, and we believe rightly so.  Judge Traxler, writing the opinion, likened the “Like” to a political sign posted in a front yard.  Did Carter have the right to display a yard sign of his boss’s opponent on his front lawn?  Yes.  [Is it a good idea?  Different question.]  In our opinion, the district court not only got it wrong, but very wrong.  First Amendment jurisprudence makes it abundantly clear that non-verbal “speech” is protected.  The district court seems to have stepped back in time, forgetting some important precedent.

The Washington Post also had a nice article preceding the Fourth Circuit’s opinion, highlighting other disputes that have arisen from the use of social media in the workplace.  You can find that story here.

Do you “Like” the Court’s opinion?  What implications do you think it will have going forward?  Remember, the related issue of an employer’s ability to force employees to give up Facebook passwords is also still hanging out there.  A U.S. News report from April 2013 on that subject, outlining the lawsuits and proposed legislation, can be found here.