Archive for October, 2015

Making a Monkey Out of Copyright

By Richard Stobbe

The Monkey Selfie Caper apparently has legs, as they say in the news business. Long legs with opposable toes. (For background, see our earlier post: Monkey See, Monkey Do… However Monkey Does Not Enjoy Copyright Protection )

Courtesy of PETAOn September 21, PETA announced that it had filed a copyright infringement lawsuit in U.S. federal court in San Francisco. PETA is suing “the owner of the camera, photographer David J. Slater and his company, Wildlife Personalities Ltd., which both claim copyright ownership of the photos that Naruto indisputably took. Also named as a defendant is the San Francisco–based publishing company Blurb, Inc., which published a collection of Slater’s photographs, including two selfies taken by Naruto. The lawsuit seeks to have Naruto declared the “author” and owner of his photograph. … U.S. copyright law doesn’t prohibit an animal from owning a copyright, and since Naruto took the photo, he owns the copyright, as any human would.”

Yes, you heard that right, the crested macaque is the plaintiff in a copyright infringement lawsuit. April 1st is still 5 months away, but with luck the federal court will have ruled on some preliminary motions by then.

Stay tuned.

Calgary – 07:00 MT

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Dear Trademark: Don’t Ever Change

By Richard Stobbe

Change is not always good, particularly in the world of registered trademarks. If your trademark changes over time – due to the vagaries of marketing trends, fashion, style – you may find that your mark no longer matches the form in which it was registered. Minor changes will be tolerated. Major changes can be fatal to the mark.

As noted in our earlier post “It is important that a mark is used as registered. Where the mark changes over time, the mark owner should consider filing a new application for the modified form of the mark. Otherwise, the evidence of usage may show use of the modified mark, which may not be accepted as evidence of use of the mark as it was registered.”

marciano.jpgThis point was illustrated in the recent decision in Guess? IP Holder L.P. v Les Montres Marciano Inc., 2015 TMOB 108 (CanLII), in which the design mark SPORT MARCIANO which was registered in association with watches, had evolved over time to show the word MARCIANO alone, as shown above.

The result was that Guess – the mark owner – could not tender evidence of any use of the mark SPORT MARCIANO in association with watches.

The registration was cancelled.

Lessons for business? Get advice on your brand portfolio – not just during the initial searching and registration process, but also during the lifecycle of your marks, including change management, the development of brand guidelines and enforcement protocols.

Calgary – 07:00 MT

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