Tuesday, July 31, 2012

BlockShopper: Bona Fide News Reporting or an Invasion of Privacy?

Example of a BlockShopper "Local Real Estate News Story" from St. Louis
Beginning in 2011, law firms Gioconda Law Group PLLC and Balestriere Fariello began an in-depth investigation into BlockShopper LLC.  Collectively, we reviewed hundreds of pages of public documents, collected news articles, read blogs and newsgroups, printed out screenshots and researched applicable federal state and local laws.  The following represents a summary of our findings.  We have not been compensated by anyone for our investigation, nor have we included or considered any privileged or confidential communications in this discussion.  The following is presented solely for the public’s interest in this matter.

BlockShopper LLC owns and operates an interactive Internet website that was co-founded in 2006 by Brian Timpone, a brash one-time Chicago TV reporter turned entrepreneur.  The Chicago Tribune recently reported that the 39-year-old co-founder’s latest gambit Journatic LLC struck a deal in April of this year in which the Tribune Co. agreed to invest an undisclosed amount in his 6-year-old media content provider.  But less than three months later, the Chicago Tribune reports that the partnership has become an embarrassment after ethical breaches, including false bylines, plagiarism and fake quotations, were discovered.

The BlockShopper website has also been plagued by public criticism and even an intellectual property infringement lawsuit brought by a major law firm.  For those unfamiliar with the website, they may be shocked to discover that it offers an aggregate of detailed personal information about individuals, including their names, spouses’ and children’s names, street addresses, details of their residential real estate transactions including property taxes paid, home values, photographs of their home and/or neighborhood, maps and directions to their home, educational background, employer(s), and even photographs.  Some have characterized it as a stalker's dream come true, where personal information is gathered from multiple sources and presented in a comprehensive format.  Identity thieves might also find such helpful information handy.

BlockShopper has also displayed photographs that it has reproduced and copied from personal and business websites, seemingly without the prior authorization, permission or consent of the photographers’ and/or of the individuals depicted in many of the photographs.  BlockShopper has even copied and displayed images of individuals taken from their personal profiles on popular social networking sites such as Facebook®, MySpace® and LinkedIn®, seemingly without the prior approval or permission of those individuals or companies.

The BlockShopper website is profit-driven, although it styles itself as a “local real estate news” reporting tool and does not charge for general access.  Despite its controversial nature (or perhaps in part because of it), the BlockShopper website receives nearly 1 million hits per month.  BlockShopper uses this substantial traffic to woo advertisers and real estate agents, bragging that it is currently operating in many geographic markets across the United States, and that its audience and reach is rapidly growing.

However, not everyone whose information and images are displayed on BlockShopper becomes a fan of the unexpected notoriety.  Indeed, Timpone was personally named in a lawsuit brought by Jones Day, a large national law firm in Cleveland, Ohio for his conduct, but he chose to settle and remove numerous images of that law firm’s attorneys to avoid the expense of further litigation.  To settle that case, BlockShopper’s management team agreed that “it will not use photographs appearing on the Jones Day website without the prior written approval of Jones Day.”

But news articles reported that the Jones Day lawsuit had no meaningful long-term effect on addressing BlockShopper’s overall approach: “The Jones Day lawsuit is not slowing the [BlockShopper] site down from expanding into new markets.  Last weekend, BlockShopper launched in three new cities--Cleveland, Washington, and Phoenix.  That’s on top of the company's recent expansion into Seattle, Philadelphia, New York, Los Angeles, and additional neighborhoods in Illinois.”  Since then, BlockShopper covers even more geographic areas.

Numerous blogs, including StopBlockShopperNow.com and "BOOM" (the "BlockShopper Opt Out Movement"), Facebook pages and public newsgroups have sprung up, reporting that hundreds of individuals have repeatedly complained to BlockShopper and unsuccessfully demanded that their personal information be removed from the website. Complaints have flooded consumer complaint boards, and State Attorney Generals’ offices have gotten involved. BlockShopper has even received complaints about dangerous individuals viewing the aggregated personal information that BlockShopper provides, in order to violate restraining orders.

Specific law enforcement-related complaints seem to have forced BlockShopper to remove at least some listings.  But in many cases, Blockshopper has received numerous, repeated complaints from individuals demanding that their personal information be removed from the website, but adamantly refuses to remove such placement, claiming that its conduct is fully protected by the freedom of speech and of the press.  

The BlockShopper website defends its stance in its“Frequently Asked Questions” section:
Public records are public for a reason. That is, your name isn’t on the title of the property you own—for all to see—to facilitate neighbor nosiness but because it is in the collective public interest. The most important charge of a local government is to guarantee land title; to keep accurate, timely records of who owns what. If we couldn’t learn the “who,” uncertainty would reign and land transactions would slow to a crawl. This would be bad for everyone’s house value. Furthermore, the prices we pay for our homes are public as they serve as the basis for local property taxes. Keeping this information like a secret would result in a lucky few paying too little, while the rest of us pay too much. In the spirit of fairness, we report public records as they are reported to us. We do not eliminate records on BlockShopper.com, as doing so compromises the integrity of our data.
But BlockShopper goes even further than just reporting real estate data, like Zillow.com does.  BlockShopper’s display has included hundreds of photographs taken wholesale from hospitals’ and physicians’ websites, colleges and universities’ sites, small businesses’ sites as well as directly from private individuals’ websites.

160+ Complaints and Negative Reviews of BlockShopper Appear on ConsumerAffairs.com
These people are not what the law would traditionally deem “public figures.”  In fact, BlockShopper has mostly appropriated images of otherwise private individuals such as secretaries, librarians, computer programmers, graphic designers, accountants, teachers, physicians, dentists, engineers, architects and photographers and others.  

Therefore, the core legal question presented by the BlockShopper model is whether the copying, reproduction and display of aggregated information about private individuals alongside their headshots are activities that constitute bona fide “news reporting” about real estate transactions that are protected by the First Amendment, or are really just an invasion of privacy cloaked in the guise of news.

For better or worse, from a precedential standpoint, BlockShopper may have the better of the legal argument when it comes to the legal standard of “newsworthiness.”  In the geographic markets where BlockShopper collects its data, the county clerks’ offices, the privacy statutes and the courts have consistently stated that the test for “news reporting” is liberally applied.  See, e.g., Illinois law (1075/§ 35 (b) (right to control one’s identity does not apply to “non-commercial purposes including any news, public affairs…”); see also Messenger ex rel. Messenger v. Gruner + Jahr Printing and Pub, 94 N.Y.2d 436, 727 N.E.2d 549 (New York Ct. of Appeals, 2000) (“where a plaintiff's picture is used to illustrate an article on a matter of public interest, there can be no liability … unless the picture has no real relationship to the article or the article is an advertisement in disguise”; Maheu v. CBS, 201 Cal. App. 3d 662, 675 (1988) (“even a tortious invasion of privacy is exempt from liability if the publication of private facts is truthful and newsworthy.”).

Nonetheless, many individuals and commentators have voiced concerns that a public policy that permits unrestricted and widespread conduct of the sort engaged in by BlockShopper would result in a substantially adverse impact on the actual and/or potential marketplace – but marketplace for what? 

Because the discrete information that BlockShopper aggregates is generally available from county clerk’s offices anyway, and Internet-posted headshots are not usually offered “for sale,” it is not clear what exact “marketplace” is being negatively affected.

In a broader sense, one could argue that BlockShopper’s unauthorized appropriation of images and information from social networking sites may serve to deter private individuals from engaging in socially productive interaction on the Internet.  In fact, Brian Timpone warned the public to this negative impact in a news interview:  If you don’t want to be on BlockShopper,don’t promote yourself on the Web.”  

But private individuals and copyright holders making images of themselves visible on the World Wide Web could theoretically argue that they have not legally consented to BlockShopper’s appropriation of those images for BlockShopper’s commercial gain.  

Therefore, there is at most an unresolved legal question as to whether BlockShopper’s display of headshots is a legally-permissible “fair use” of those particular images in connection with bona fide news reporting about those individuals.

Finally, many individuals sincerely believe that BlockShopper’s conduct violates their individual right to privacy.  However, they may be surprised to discover that laws regarding the privacy of truthful facts are not as restrictive as one might think.  If BlockShopper has accomplished nothing else, it has contributed to a collective legislative push by some to get real estate data privacy laws toughened up at the county and local levels.

In conclusion, the thorny legal issues surrounding BlockShopper’s website, and other identity aggregators like it, remain mostly unresolved at a national level.  Those who remain disturbed and disgusted by BlockShopper’s approach and question the bona fides of its “news reporting” may best be served writing their local legislators about making the data surrounding their local real estate transactions private.

Panel Rules JackAbramoff.com Domain Name May Stay with Democrats

Screenshot of JackAbramoff.com

A three member Uniform Domain Name Dispute Resolution ("UDRP") panel refused to transfer the domain name JackAbramoff.com to Jack Abramoff after he filed a complaint.

Abramoff was involved in a corruption scandal that led to his conviction and to 21 persons either pleading guilty or being found guilty, including former White House officials J. Steven Griles and David Safavian, Representative Bob Ney, and nine other lobbyists and Congressional aides.

The domain name is currently registered by the Democratic Congressional Campaign Committee (DCCC) who has been using it for less than flattering purposes.

The panel found that Abramoff did not prove by a preponderance of relevant, credible, admissible evidence that the domain name is identical or confusingly similar to a trademark in which he has trademark rights.

Further, the Panel found that Abramoff “has not met his burden to prove by a preponderance of the relevant, admissible evidence that Respondent’s domain name has been registered and is being used in bad faith.”

Part of Abramoff's legal problem was that, aside from it being his name, the Panel found that he provided "no evidence of actual use of JACK ABRAMOFF as a trademark in connection with particular goods or services prior to the time 
Respondent registered the disputed domain name."

The Panel noted that “[o]ne cannot claim or enforce trademark rights in a mark that it has not used, and one cannot secure a U.S. Federal Trademark Registration absent “use in commerce.”

The Panel also found that the Respondent has rights or legitimate interests in the domain name because it has made a legitimate noncommercial or fair use pursuant to the Policy.
The Panel further noted that the use being made on the domain name is classic political speech, protected by the First Amendment, and, for trademark purposes constitutes nominative fair use.

Further, Abramoff had claimed to be “famous,” but the Panel found that the record reflects he is, in fact, “infamous."

Trademark for Hacker Group's Logo Triggers Declaration of Cyber War

Wired reports that a retail store in France had an idea that it may soon regret:  the store filed for a trademark for hacker group Anonymous' logo.

The retail store named Early Flicker, and the representative of that brand, Apollinaire Auffret, wants to own Anonymous' slogan, as well: "Anonymous. We are legion. We do not forgive. We do not forget. Expect us." in connection with commercial products. The store sells t-shirts on eBay France.

Representatives of the international hacker group produced a disturbing video stating:
Hello Citizens of the world, we are Anonymous.  Dear brothers and sisters, now is the time to open your eyes and expose the truth.  
Anonymous logo and slogan has been defiled and registered through the National Institute of Industrial Property (INPI).  An online t-shirt company called "Early Flicker" or "E-flicker" has registered the anonymous slogan and logo and passed it on as their own. Now under French law, the company owns the rights to the anonymous logo and slogan. The company's website is pickapop.fr.
  In a response the National Institute of Industrial Property said that "the conditions seem fulfilled since the mark is registered and it does not seem to have made use." Their arrogance and ignorance of what they have done will not go unpunished.  Anonymous will take down any business they have going on the internet and the 99 percent will not stop until the registration has been revoked and a public apology has been made.
  The name of Anonymous will not be the whore of the world.
  We are Anonymous. We are Legion. We do not forgive. We do not forget. Expect us.
The video depicts a representative of Anonymous in a Guy Fawkes mask speaking in a computer-generated voice.

The hacker group's threat is not likely to be an idle one.  In the past, Anonymous has targeted the US Department of Justice, the CIA, MasterCard and the Chinese government.

The "Caviar Manicure": Capturing a Trend as a Trademark

Buzzfeed reports that UK-based company Ciaté is laying a somewhat controversial stake to the terms "CAVIAR MANICURE" and "CAVIAR NAILS," as used in connection with a unique (if not slightly bizarre) form of nail polish and lip gloss adornment.

According to the company's website, "the inspiration behind the Caviar Manicure™ came about when Charlotte, Ciaté’s Creative Director, was looking to create 3-dimensional nails for a front cover magazine shoot and wanted to develop something feminine, indulgent yet delicately extravagant."

Ciate's products are currently offered for sale at Sephora and on Amazon.

According to BuzzFeed, Ciaté has apparently been sending out cease and desist letters to bloggers who were reporting how to create a "do-it-yourself" form of the nail look and calling it the "caviar manicure" without authorization from Ciaté.

The correspondence reportedly demands that bloggers cease using the term in connection with do-it-yourself forms of nail adornment, unless they are specifically using Ciaté products:  

"Brand Agency Limited (Ciaté) owns the trade marks caviar manicure and caviar nails and we are in the process of applying to register these marks around the world. Therefore you should not use the trade marks caviar manicure and/or caviar nails unless they are used in relation to products or to a method of using products that are produced by Ciaté."

However, the legal correspondence has not gone over so well with nail polish aficionados, who have begun calling the trend "fish egg manicure" in a form of mockery.

However, the twist here is that the bloggers and do-it-yourselfers are using a term ("caviar manicure") to which Ciaté is now staking an exclusive legal claim.

In the U.S. Trademark Office, Ciaté applied for a federally registered trademark in April 2012 based on priority of use claimed from its UK-application, which is dated March 13, 2012.

If a blogger or any other third party had previously used this term in commerce, that person could possess a superior right to Ciaté under the doctrine of priority.  In the United States, the first person or company to use a distinctive mark in commerce typically possesses the seniormost claim to right as against later comers.

There are reports in the blogosphere that third parties may possess evidence of prior use. However, do-it-yourselfers and bloggers may not possess any trademark rights vis-a-vis Ciaté, unless their use was made in commerce.

Ciaté may therefore now attempt to lay stake to the brand to the extent it can stop a significant level of unauthorized usage in the marketplace and become uniquely associated with the trend.

Battlefield 3 Video Game May Be Too Close to Reality, Judge Rules

A federal judge has denied Electronic Arts' motion to dismiss a trademark infringement lawsuit involving true to life helicopters featured in its popular video game, "Battlefield 3."

The popular videogame -- which Electronic Arts sold 5 million copies of in its first week on the market -- accurately depicts the AH-1Z, UH-1Y and V-22 helicopters, manufactured by Textron Innovations and Bell Helicopter Textron.

Battlefield 3 features modern-day armed conflict role playing on land, air and at sea.  Game characters use genuine U.S. military weapons and vehicles, ranging from tanks and jeeps to planes and helicopters.

Textron and Bell had alleged in their Complaint that consumers are likely to view the images of its helicopters in the game and infer that the manufacturers endorsed or sponsored the game, when they did not.

Electronic Arts moved to dismiss the Complaint on the theory that it was merely engaging in nominative fair use when depicting the helicopters, and that such expression is protected by the First Amendment.

The Court disagreed, finding that "[a]lthough consumers are unlikely to think Textron has entered the video-game business, Textron has alleged sufficient facts to support the inference that the game explicitly leads consumers to believe it is 'somehow behind' or 'sponsors' 'Battlefield 3.'"

The same parties had previously clashed over Electronic Arts' depictions of Bell-manufactured vehicles in the "Battlefield Vietnam," "Battlefield Vietnam: Redux" and "Battlefield 2" video games, but the parties had previously reached a confidential settlement agreement over those uses.

The recent ruling invites a host of interesting questions about the accurate depiction of items in everyday life in video games and in other expressive media. 

For example, if a movie director desires to present a true to life war scene showing the use of an AK-47 assault rifle, does that depiction entitle the gun maker to sue? Judge Alsup's opinion suggests that such an outcome is possible.

"It is plausible that consumers could think Textron provided expertise and knowledge to the game in order to create its realistic simulation of the actual workings of the Bell-manufactured helicopters," Judge Alsop wrote.

Monday, July 30, 2012

Supermodel Brand Builders -- It's In Their DNA

Celebrity supermodels possess a few lucky genetic advantages over most other brand-building entrepreneurs.

In addition to being born tall and gifted with extraordinarily good looks, supermodels are also household names that can easily be leveraged to become recognized consumer brands.

Gisele Bündchen, Cindy Crawford, Tyra Banks and Elle MacPherson all achieved their initial stardom by enduring years of traditional runway and print modeling. But these savvy businesswomen have also capitalized on their inherited genetic advantages to become successful entrepreneurs in their own right.

The legal vehicle that allows celebrity supermodels to extend their reach beyond their grasp can be as straightforward as the standard licensing agreement. 

The legal structure is relatively easy to construct:  The model or celebrity enters into a detailed contract with an agency having existing marketing and distribution channels that permits her name and persona to be associated with a product or line of products. 

The supermodel may additionally want to create her own individual company to own the brand itself. She may then choose to delegate many (or all) of the day-to-day responsibilities involving the management of the brand and collect agreed-upon royalties based on some measure of sales.

Alternatively, she may choose to take a "hands-on" approach, and be far more intimately involved in product design and marketing, and appear at promotional events and in television commercials. When successful, these arrangements can create opportunities to instantly exploit existing name (and face) recognition among consumers. 

For example, supermodel Cindy Crawford's line of furniture at Raymour & Flanigan branded as "Cindy Crawford HOME," has been a huge boon to that upstate New York-based furniture chain. Gisele Bündchen banked over $8 million a year from a sandal line called IPANEMA by Gisele. 

But supermodels aren't only interested in sofas and shoes. Supermodel and business titan Heidi Klum launched fruit candies called "Heidi's Fruit Flirtations" and "Heidi's Yogurt Dessert Cremes." The candies and cremes didn't fare as well as some of Klum's other business ventures, but the venture showed that the supermodel dares to explore brand expansions outside the norm. 

So what is the secret to their success? The key to the long-term success or failure of supermodel-related product lines may lie in the sincerity behind the endorsement itself. 

According to some experts, the trick to this game is aligning a model's individual personality with the right product. "If you've built enough of a persona around yourself, you can do well," says Ryan Schinman, chief executive of Platinum Rye, which represents corporations that partner with celebrities.  But "if you say, 'I'm a model, but I'm also a mom,' then you target moms. The DNA of your brand has to match up with the product," says Schinman. 

And some supermodels have entrepreneurial DNA that just cannot fail. According to Forbes, Kathy Ireland — who appeared on three Sports Illustrated covers and in 13 consecutive swimsuit issues during the 1980s and ’90s — is worth an estimated $300 to $350 million via her product marketing company, Kathy Ireland Worldwide. By way of comparison, mogul Martha Stewart’s holdings in Martha Stewart Living Omnimedia are valued somewhere in the vicinity of $250 million, whereas Ireland has sold an estimated $2 billion worth of retail products, with Stewart selling less than half of that ($900 million at retail). 

How did Ireland do it?  Forbes notes that the model has long since moved beyond her initial clothing line at Kmart, choosing to now license and sell everything from stylish jewelry, office furniture, windows, and mattresses to hair care, perfume, and shoes — and that doesn’t include her successful line of bridal dresses and fur coats.

Thursday, July 26, 2012

Egyptian Olympians Sporting Counterfeit Uniforms

The Huffington Post is reporting that Egypt, in understandably dire economic straits given its recent political upheaval, chose to save some money by purchasing its London 2012 Olympic uniforms from a Chinese supplier.

That regrettable decision has led to the Egyptian Olympians being decked out in wholly counterfeit apparel that display both fake Nike and adidas logos.

Nike has brought the issue to the team's attention, and has raised valid safety and quality concerns about the counterfeit apparel.

U.S. Patent and Trademark Office Issues Trading Cards (No, Seriously)

In order to promote awareness of Intellectual Property and the value of inventions among America's youth, the United States Patent and Trademark Office has commissioned and issued a series of "trading cards," similar to baseball cards. The cards include biographical information about inventors, and describe some of their contributions to modern science and industry.

Popular cards include famous inventors such as Thomas Edison, George Washington Carver and Nikola Tesla.
Some of the cards are a bit more obscure and therefore may be far more valuable to serious collectors, such as the one for David J. Kappos, the current Under Secretary of Commerce and Director of the United States Patent and Trademark Office, seen at right.

Apple Seeks to Trademark Its Distinctive Startup Chord Sound

The Patently Apple Blog informs us that Apple has sought to register a federal trademark for the distinctive chord that one hears whenever a Mac boots up:

The Mac Chime

A sound trademark is protectable.  According to the United States Trademark Office, a sound mark "identifies and distinguishes a product or service through audio rather than visual means."  Examples include: (1) a series of tones or musical notes with or without words; and (2) wording accompanied by music.

The legal test to determine whether such a sound can properly serve as a trademark "depends on [the] aural perception of the listener which may be as fleeting as the sound itself unless, of course, the sound is so inherently different or distinctive that it attaches to the subliminal mind of the listener to be awakened when heard and to be associated with the source or event with which it struck."

This wordy test was articulated by the US Trademark Trial and Appeal Board when General Electric sought to trademark the timed toll of a ship's bell clock in the 1970's.

Many companies have been successful in registering distinctive sounds as non-traditional trademarks:  MGM and its famous lion's roar; the triple NBC chimes; Intel and its three-second chord sequence used with the Pentium processor; and THX and its "Deep Note."

Other interesting sound trademarks include the Mister Softee ice cream truck jingle, and the buzz of a Star Wars lightsaber, specifically described as "the sound of an oscillating humming buzz created by combining feedback from a microphone with a projector motor sound."

But not all sound trademarks are so easily registered. Harley-Davidson attempted to register the specific "chug" of a Harley Davidson motorcycle engine as a trademark.

Nine of Harley Davidson's competitors, including Kawasaki and Honda, quickly filed oppositions against the motorcycle manufacture application, arguing that cruiser-style motorcycles of various brands use the same crankpin V-twin engine that produces the same exact sound. The competitors vehemently argued that the doctrine of utilitarian functionality prohibited such a trademark. After six long years of litigation, Harley Davidson withdrew its application.

Wednesday, July 25, 2012

The Chick-fil-A Gay Marriage Controversy: When Brands and Politics Collide

The Cathy Family / Chick-fil-A Website
Privately-owned, Georgia-based fast food chain Chick-fil-A is apparently not afraid of courting controversy.  

Company President Dan Cathy recently gave an interview to the Baptist Press in which he said he was "guilty as charged" in support of what he called the biblical definition of a family.  

This was not a slip of the tongue.  Indeed, on the Chick-fil-A corporate website, Mr. Cathy's biography confirms that his "personal passion" is "to glorify God by being a faithful steward of all that is entrusted to us."

As evidenced by these statements, Chick-fil-A represents a "red brand," that is, a mainstream consumer brand that appeals to some purchasers by openly espousing principles that tend to fall on the conservative/Republican end of the political spectrum.

According to a recent survey, which confirmed previous findings published by AdAge in 2010, political viewpoints strongly affect consumer loyalty and perceptions.  And there are plenty of brands to go around, regardless of your particular political viewpoint.

Studies consistently show that "Blue brands," or those top companies favored by liberals/Democrats include Google, Sony, Johnson & Johnson, JetBlue and Ben & Jerry's.
Ben & Jerry's "Occupy Wall Street" Banner / Ben & Jerry's Website

Most of the time, these brands' outward expression of philosophical principles that overlap with political views still allow them to prosper by maintaining a strong customer base by remaining loyal to those principles without significantly alienating those who share a different viewpoint.  The simple reality is that Ben & Jerry's viewpoints, no matter how controversial, simply haven't negatively affected overall sales of their popular flavors.

But sometimes, mixing consumerism with politics can turn ugly.  And Chick-fil-A has become a case in point.

Mr. Cathy's interview led to the fast food chain's expansion facing significant, vocal opposition from Chicago Mayor Rahm Emanuel and Boston Mayor Thomas Menino, who has called the chain a direct insult to gays, and has informed the company that it is simply not welcome in Boston.

Putting aside the First Amendment implications of these threats, it is clear that when a brand wades too deeply into political waters, there can be undesirable economic consequences.

Court Finds Infringement No Laughing Matter, Doubles Damages to $4.6M

After a jury found a likelihood of confusion in a case involving the trademark GRANDMA SYCAMORE'S HOME MAID BREAD, U.S. District Court Judge Dale A. Kimball doubled the jury's damages award to $4.6M.

Leland Sycamore, the Utah entrepreneur who originally created Grandma Sycamore’s Home Maid Bread, was ordered to pay the hefty damages to the company to whom he sold the name in 1998.

The Court ruled that the damages awarded to the plaintiff by the jury were inadequate given the lost sales and damage to the goodwill of the plaintiff.  The Court also noted there was evidence of willfulness, as the defendant had apparently joked about ignoring the plaintiff's cease and desist letters.

In 1998, the Defendant had sold the Grandma Sycamore’s trademark, business goodwill and trade secrets to Metz Baking Company, which was later acquired by the Sara Lee Corporation.

Leland subsequently started the Sycamore Family Bakery and began marketing a variety of breads identical to those marketed under the Grandma Sycamore’s brand. 

As part of the deal, Sycamore was given an exclusive license to use the Grandma Sycamore trademark in a limited number of areas outside Utah, only if given written approval from Metz.

A decade later in 2008, Sara Lee sent Leland a letter demanding that he refrain from using "Sycamore" or any other component of the trademark for any bread or bakery products, but Sara Lee received no response to that or three subsequent demand letters.

The Court noted that, on the defendant's bread packages, the name "Sycamore Family Bakery, Inc." was repeated 24 times above an image of a teddy bear holding hearts — similar to the hearts incorporated in the Grandma Sycamore’s packaging. The new business also marketed the bread as the "original granny bread" and "original version" of Grandma Sycamore’s.

Judge Kimball had granted the plaintiff's motion for a preliminary injunction in October 2009.  The judge had found that instances of actual confusion among both consumers and food distributors constituted persuasive evidence that consumers would likely believe that the "Sycamore family" was making both bread products, and that the defendants deliberately adopted the similar trademark to unlawfully benefit from its reputation.

Warner Brothers Studio Faces Legal and Public Relations Nightmare

Amidst the current news reports that The Dark Knight Rises’ actor Christian Bale made a surprise visit to the survivors of the Aurora, Colorado theater massacre, was a curious comment:

“Mr. Bale is there as himself, not representing Warner Brothers,” reportedly said an assistant to Susan Fleishman, the executive vice president for corporate communications at the movie studio.

But why would the studio seemingly want to distance itself from Mr. Bale’s charitable and apparently welcome visit?  

To be sure, the movie studio has already made a substantial donation to the victims, and is obviously not callous or indifferent to the suffering caused by the worst mass shooting in U.S. history.
Carey Rottman with Christian Bale / Facebook
Rather, the answer may have more to do with the unfortunate position that Warner Brothers now faces from both a legal and public relations perspective.

First, the Warner Brothers’ “Dark Knight” franchise is regrettably forever linked as part of the Colorado shooter’s motives, as the suspect appeared in a Colorado courtroom earlier this week with hair dyed red and orange, reportedly claiming to police that he was the Joker character played by the late Heath Ledger.

Warner Brothers’ desire to at least try and keep some distance between itself and the tragedy to avoid civil liability is not based on paranoia.

Indeed, one of the shooting victims has already filed a lawsuit against the studio, alleging that the violence depicted in the Dark Knight films is a legally contributing factor to the shootings. (That same suit has also in turn blamed the lack of security at the movie theater, and the suspect’s doctor for failing to treat him properly).

Plaintiffs’ lawyers may want to take advantage of a reasonable cooling off period before firing off such lawsuits.  The criminal investigation has barely just begun, and will undoubtedly shed much more light on the suspect’s state of mind, motives and conduct in weeks and months to come.

It is worth noting that civil lawsuits blaming content creators for the criminal acts of deranged minds have a tendency to fail.  And, in fact, Colorado has precedent nearly on point:  Nintendo of America, Activision and Sony Computer Entertainment were named as defendants in a civil lawsuit filed by the families of the 13 victims killed in the 1999 massacre at Columbine High School in Littleton, Colorado.

That lawsuit was aimed at 25 entertainment companies in total and sought $5 billion in damages.  Ultimately, the case was dismissed by a Colorado federal court in March 2002, with the Court finding that the media and videogame companies could not have reasonably foreseen that their products would cause the horrific events that occurred in the Columbine massacre or other acts of violence.

"Setting aside any personal distaste, as I must, it is manifest that there is social utility in expressive and imaginative forms of entertainment, even if they contain violence," District Court Judge Babcock wrote in his opinion.