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Morphe, a well-known makeup company, is suing Becca in response to threats Morphe’s new eyeshadow palette’s packaging constitutes trade dress infringement, false designation of origin, and palming off under the Lanham Act.  15 U.S.C. § 1051.  Becca also alleges that Morphe has tortiously interfered with Becca’s contract with Jaclyn Hill, a makeup artist that Morphe now works with.  The palette in question is also a project with Jaclyn Hill, in which she teamed up with Morphe to create a line of eyeshadow palettes.  The first palette was very popular and called “the Jaclyn Hill Palette.”  Morphe and Jaclyn Hill created a second set of palettes called the “Vault” collection.  The announcement generated lots of publicity for Morphe and on Jaclyn Hill’s Instagram, YouTube, and Twitter pages.

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Pictures taken from complaint.

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Morphe’s Vault collection’s packaging design features a white box with a silver background behind the logo and a confetti look with colors and shapes expanding from the center.  The logo features Morphe’s name and Hill’s signature.  More than six weeks after the announcement, Becca sent Morphe a cease and desist letter claiming common law trademark rights to the design.  Becca mentioned their previous contract with Jaclyn Hill and stated that their palette with Hill had extensive use giving them common law trademark rights.  However, Becca provided no federal registration for the packaging and allegedly had not sold, marketed or used the packaging in the U.S. for the last two years.  Becca allegedly is also unable to resume use of this mark due to contractual obligations.

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Star Fabrics, Inc. is suing Cost Plus, a well-known retailer, for copyright infringement of artwork on fabric.  Los Angeles based Star Fabrics owns a two-dimensional artwork print registered with the U.S. Copyright Office (Reg. No. VA 1-764-261).  Star Fabrics alleges that Cost Plus had access to their two-dimensional fabric design due to Star Fabrics’ widespread dissemination of the fabric to numerous parties in the fashion and apparel industries.  Star Fabrics alleges that Cost Plus and other defendants created garments with the same design protected by copyrights and sold them with a World Market label.

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Taken from the complaint.

To prove copyright infringement, proof of ownership of the allegedly copied work as well as copying of the protected elements of the design covered by copyright are required.  Narell v. Freeman, 872 F.2d 907, 910 (9th Cir. 1989).  Star Fabrics’ certificate of copyright registration is prima facie evidence of validity and ownership.  Next, because there is likely no direct evidence of copying, Star Fabrics must prove that the defendants had access to its design and that the two designs are substantially similar.  Star Fabrics lists many ways in which the defendants may have had access to their design, including their showroom, illegally distributed copies of the design by vendors, or access to materials in the marketplace lawfully using the pattern.

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The Heroes Project is a charitable organization helping veterans with mental, physical, and emotional obstacles since 2009.  The Heroes Project is suing Operation Hero Project for federal trademark infringement (15 U.S.C. § 1114), federal unfair competition/false designation (15 U.S.C. § 1125(a)), common law trademark infringement, and common law unfair competition.  Because charitable organizations are geared to a certain cause, the names or trademarks will sound similar and it is important to distinguish and protect the marks to avoid confusion, especially among donors.

The Heroes Project provides veterans expedition opportunities, community support, and a voice to the world.  The Heroes Project doeslogo this through cycling events and mountain climbing expeditions to places such as, Mount Kilimanjaro, Mount Elbrus, Mount Aconcagua and more.  The Heroes Project’s efforts are featured on many news stations and are also supported by many well-known celebrities and musicians, increasing its popularity.  The Heroes Project has used its mark for charitable fundraising since at least May 2010, including through its website, www.heroesproject.org.  The Heroes Project filed a federal trademark application in 2013, which registered in 2017.

Defendant Operation Hero Project offers similar charitable activities and fundraisers aimed towards veterans.  Operation Hero Project operates a website, operationheroproject.org, as well as a Facebook page under the same trademark.  Operation Hero Project’s activities include climbing excursions, bike rides, golf tournaments and other fundraising events.  Before the lawsuit, Plaintiff alleges it sent a cease and desist letter to Defendant asserting its trademark rights, but Defendant refused to cease use of their mark in April 2018.

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From www.brettdaniels.com

Brett Daniels, a professional magician, collaborated and contracted with defendants Simon Painter and Timothy Lawson on a variety of live magic shows and a potential magic show for television.  Daniels performed in many live magic shows as one of the group’s largest attractions, using his method and choreography to make large vehicles appear out of thin air.  Daniels owns the proprietary rights to the concept, apparatus, and method of operation of his “Appearance Illusion,” for which he’s known throughout the magic community.  Daniels ceased performing in the live magic shows, but continued to contribute creatively to the business.  Daniels played a large part in scouting talent for the show, recruiting all but one of the initial performers in the show.  Additionally, Daniels used his TV connections to help further the prospects of a TV magic show.

The situation escalated when a Venezuela tour date was added by Painter and Lawson.  After arriving in Venezuela, the materials and equipment of the acts were seized. Daniels claims that this was a plan by Painter and Lawson and that they would not assist him in leaving the country.  While dealing with a serious illness for five days, Daniels had to threaten legal action before Painter and Lawson provided him with a ticket out of the country.  The relationship soured quickly after this trip.  Soon after, the defendants stopped paying Daniels the 10% of the act fee budget stated in their contract, and cut his contact off with talent he had recruited.

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Did you know the photographer owns the copyright in the picture she takes of you?  Famous photographer, Bruce W. Talamon, is suing the owners of bobmarley.com and many other Bob Marley related companies for copyright infringement over the alleged use of Talamon’s photographs he took of Bob Marley.  Talamon is a Los Angeles photographer who shot exclusive photos of many famous artist and musicians.  From 1978-1980, Talamon traveled with Bob Marley and his band during concerts in California and West Africa and created a book, Bob Marley Spirit Dancer, featuring the many photographs from his travels with Marley.

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Picture taken from the complaint (Subject Photograph 7).

The complaint identifies over twenty instances of copyright infringement, showing websites and Facebook pages allegedly using his photographs of Marley.  The named defendants span from music companies to producers of coffee and marijuana products, some of which Talamon previously sued in other cases.  The complaint lists the copyright registration numbers of all 22 photographs that Talamon claims have been infringed and provides screenshots of the photos on the companies’ various websites.  Despite the pictures featuring Bob Marley, a photographer is ALWAYS the copyright owner unless specifically agreed to specifically in writing prior to the shoot or assigned subsequently also in writing.

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An Instagram media influencer, Nita Batra, along with a class of other Instagram influencers are suing PopSugar for what could be millions of dollars.  Batra runs an Instagram account with over 214,000 followers and a connected lifestyle and fashion blog.  As with many other Instagram influencers, Batra generates revenue through a contract with LIKEtoKnow.it, an app and website that identifies and sells clothes based on screenshots.  The Influencers’ agreement with LIKEtoKNOW.it allows each influencer to monetize the pictures and information they post to their social media sites.  The photographs that they post are linked to LIKEtoKnow.it’s app and website, allowing users to find and buy outfits the influencers wear in their Instagram posts.  Each influencer receives a percentage of the sale price when users buy products through their links.  The profits earned by many influencers with hundreds of thousands of followers can be substantial.  Copyright-Lawsuit-Instagram-Photo-300x300

Batra claims that PopSugar illegally took pictures protected by copyrights of many Instagram influencers, removing the referral links from which they profited, and posting the pictures on PopSugar’s website with new links.  These new links deprived the media influencers of their profits by directing users to ShopStyle, a website then owned by PopSugar.

Batra is suing for violations of the Digital Millennium Copyright Act (17 U.S.C. § 1202) and the Lanham Act (15 U.S.C. § 1125(a)), copyright infringement, violations of the unfair competition law, infringement of the right of publicity, and intentional interference with contract.  This feature allegedly cut into the profits of the media influencers and improperly used their names and likenesses without their permission.  Instead of Batra and other class members receiving their commissions, PopSugar’s company at the time, ShopStyle, would receive the total profit from purchases made.

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trade-secret-seminar-bridgeport-cle-milord-speaker.jpgOn May 8, 2015, I have the pleasure of speaking at Bridgeport Continuing Education’s “Trade Secret and Employee Mobility” seminar. For a list of the distinguished speakers and topics, click here . I will be speaking about the intersection of trade secrets with other forms of intellectual property, including patents, trademarks, and copyrights. To register for the seminar, click here.

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trademark-attorney-infringement-vampire-wine-food-taco-yard-house.jpgTI Beverage Group and its attorney, trademark licensor, and co-plaintiff Michael Machat are not drinking at the Yard House and nothing seems to be merry despite the consumption of tacos and alcohol. Plaintiffs appear to have more of an affinity for Vampires than Bram Stoker himself, having registered numerous Vampire related trademarks for beverages, bars, and restaurant services, including Vampire® and Dracula® for wines and Vampire Lounge & Tasting Room® for restaurant and Bar Services. Even Bella Swan doesn’t think this amount of vampire love is healthy, said the star of the Twilight saga. Moreover, Sookie Stackhouse is upstaged by Plaintiffs’ undying love of vampires because Plaintiffs previously sued HBO for trademark infringement for selling TruBlood beverages.

Plaintiffs claim to have recently sniffed out Yard House’s sale of “VAMPIRE TACO” and use of “VAMPIRE STYLE” to excite potential customers about its food and/or beverage offerings. Yard House has also file trademark applications for Vampire Taco and Vampire Style, which are both pending. Plaintiff alleges that if Yard House “is not stopped from marketing food products and restaurants using Plaintiffs’ Vampire Mark or a mark confusingly similar to Vampire, then consumers will likely be confused about the source and origin of defendant’s products and services and mistakenly conclude that defendant’s products or services are produced by, or associated with Plaintiffs…As a result, Plaintiffs’ reputation and goodwill will be impaired.” The complaint seeks unspecified damages, but Plaintiffs intend to disgorge Yard House’s profits, request an award of attorneys’ fees in addition to an injunction prohibiting Yard House’s use of the Vampire trademark.

Click here for a copy of the complaint.

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super-bowl-trademark-attorney-cease-desist-infringement-fair-use.jpgEvery year the NFL’s trademark attorneys aggressively send cease and desist letters to business using the term “Super Bowl,” threatening them with the trademark law equivalent of traumatic brain injury. Even churches are not granted sanctuary from NFL’s trademark and copyright infringement tentacles. Instead of battling for immunity under trademark fair-use laws, many businesses and advertisers engage in vocabulary gymnastics, e.g. Big Game, Super Sunday, to avoid the NFL’s trademark onslaught. The NFL even tried to prevent use of “The Big Game” by filing a USPTO trademark application, but the NFL was forced to abandon its trick-play when numerous colleges and businesses opposed the application. Thus, to avoid legal expenses, many businesses choose to forego the battle. But not Stephen Colbert, whose Superb Owl moniker flies below the NFL’s trademark radar:

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grammy-tickets-unauthorized-trademark-attorney-infringement-copyright.jpgThis is not your ordinary trademark infringement case. It involves Grammy Awards ceremony tickets, allegedly sold by now ex-Recording Academy member and trademark attorney – Matthew Blakely – to alleged swindler and trademark infringer Craig Banaszewski.

The dispute stretches back to 2012 when the Academy informed defendants that tickets to the Grammy awards were private, invitation only events and any unauthorized transfer or sale of the tickets was unlawful, would automatically void the tickets, and the ticket-holders would be deemed trespassers. Defendants complied with the Academy’s take-down requests and the issue appeared resolved.

In 2013, however, attorney Blakely reportedly sold his non-transferable tickets for between $65,000 and $89,500. But when the purchasers were denied entry, they sued Blakely after he refused to refund their money. Blakely informed the Hollywood Reporter that Banaszewski claimed he was obtaining tickets to revive 80’s and 90’s rock bands’ careers and Grammy appearances would be helpful. According to the Hollywood Reporter, “Blakely says he initially declined but then reconsidered after the guy ‘reiterated interest in potentially funding the film projects for Blakely Legal clients.'”

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