Articles Posted in Intellectual Property

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Getting a high-profile celebrity to endorse a product or service can be a major coup. After all, in a society that emulates famous personalities, what could be more desirable than an A-list star saying that they use a company’s wares?

Reputation-Management-105888720-001While celebrities are public personalities, this does not necessarily mean that their images can be used for a marketing campaign without their permission. Traditionally, lawsuits have sprung up around campaigns that utilized the voice or image of a famous person without their consent. These campaigns were problematic because they caused the public to believe that the celebrity was endorsing the product.

While those kinds of lawsuits still occur, a recent lawsuit that Sofia Vergara settled against Venus Concept highlights a new wrinkle in this area of law. The trouble began in 2014 when Vergara posted a photo to her WhoSay account. Vergara was undergoing a massage using a Venus machine. Venus Concept learned of the image and subsequently used it on their social media accounts, claiming that Vergara “loved” the treatments.

Unfortunately, Vergara contends that she found the treatments a waste of time and money, and that she had no intention of starring in a campaign for the company. Arguing that she had been paid $15 million for other endorsements, Vergara sued Venus Concept for that amount, which would approximate the money she would have received if she had agreed to endorse the product.

The early settlement of the suit suggests that Venus Concept backed off fairly quickly. However, their legal troubles were probably completely unexpected. It’s easy to imagine that executives at the company were eager to promote their brand and an apparent association with an A-list television star. They made the mistake of not even asking for permission to re-use Vergara’s image, let alone negotiating a deal that might have been mutually beneficial.

While it is exceptionally easy to re-post the social media commentary of others, it is not always a good idea to do so without seeking their permission. This is particularly true with high-profile personalities. When in doubt, it is always best to seek legal counsel.

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Does a company have the right to use someone’s image without their permission? That question is central to a new lawsuit. While the lawsuit’s merit remains undetermined, it is stirring up negative publicity for the company. Entrepreneurs who are starting an ad campaign may want to consult with an experienced business attorney to avoid finding themselves in a similar situation.

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Plaintiff Leah Caldwell filed her lawsuit against Chipotle Mexican Grill. The complaint names Steve Ells, the company’s founder and CEO, as a defendant as well as a photographer named Steve Adams.

Caldwell alleges in her complaint that her photograph was taken without her knowledge while she ate in a Chipotle restaurant in Denver during the summer of 2006. She recalls that the restaurant was virtually empty, and she also states that she did not see any cameras or notices of a photo shoot being underway. Nevertheless, as she left the restaurant, she alleges that Adams approached her and asked if she would sign a release for the use of her image. Caldwell refused.

Caldwell was in Orlando in December 2014 when she visited another Chipotle location, only to see her image displayed. In her complaint, she says that the image was digitally altered, most notably by including bottles of alcohol in her vicinity. A few months later, she visited two other Chipotle locations in California, only to see her picture yet again.

She responded by filing the lawsuit, claiming that Chipotle did not have the right to use her image in their marketing campaign. Caldwell is representing herself in the case, and she has asked for a settlement of more than two billion dollars, the amount which she says the restaurant chain earned as a result of the use of her unauthorized photo.

Chipotle has not commented publicly on the suit, and much investigation will be required to determine whether or not Caldwell’s rights were violated and if so, how much money she may be entitled to. Speaking with a qualified business attorney is the best way to avoid legal pitfalls when it comes to using or designing marketing materials.

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A screenwriter/producer is suing The Walt Disney Company over its award-winning animated film “Zootopia.” The writer claims that the entertainment giant stole his idea after he pitched it to studio executives in 2000 and 2009.

Copyright-Law-135827413-001Gary Goldman, whose many credits include writing the script for “Total Recall” and acting as an executive producer for “Minority Report,” filed the lawsuit in March 2017. Goldman asserts that he produced a treatment in 2000 that dealt with “an animated cartoon world that metaphorically explores life in America through … anthropomorphic animals.” His treatment included a human cartoonist who creates the world of the anthropomorphic animals, which would be called Zootopia. The title of the project was “Looney.”

Goldman says he pitched his idea to a Disney executive in 2000, but that the studio passed on the project. The subject came up again in 2009, this time with Goldman providing executives with a more developed treatment that included illustrations and descriptions of characters. Disney said the project would be considered, but Goldman alleges that they never contacted him. Shortly afterward, Disney appeared to be developing a Zootopia project of their own.

The plaintiff in this case appears to have done almost everything right. He registered the original treatment with the Writer’s Guild to protect ownership of the source material. However, current media reports do not disclose whether or not he took further steps to protect his rights, like asking Disney executives to sign a legally-binding agreement before showing them any intellectual property.

The question of whether Disney “stole” or was at least “inspired by” Goldman’s ideas remains unanswered at this time. Comparing the character illustrations commissioned by Goldman with the final look of the characters in the completed film does show some similarities. However, this is not necessarily enough to convince a judge that Disney borrowed someone else’s ideas. After all, anthropomorphic animals confronting human issues in a cartoon world is hardly a concept that hasn’t been explored in detail before Zootopia.

Companies and individuals that want to protect valuable intellectual property are encouraged to consult with legal counsel before sharing their ideas.

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Ownership of some of the most well-known Beatles songs has been on a tortuous path for decades. Sir Paul McCartney, a former Beatle and writer or co-writer of many of the group’s biggest hits, is taking legal action to reclaim the rights to his creations. It’s an ongoing odyssey with no end in sight.

Beatles-Imagine-2902823-001McCartney is the author of many famous Beatles songs. Sometimes collaborating with John Lennon, he wrote tunes like “Love Me Do” and “Yesterday.” However, the rights to those songs were often immediately signed away. Most of the rights were lost between 1962 and 1971. Various publishers snapped up the rights, but by the 1980s, publisher ATV owned most of them. When an Australian businessman who owned a controlling share in the songs put them up for sale in 1984, Michael Jackson notoriously outbid Paul McCartney to become the owner of the Beatles’ catalog.

In fact, Jackson and Sony formed Sony/ATV, with the Beatles’ works being among the company’s major assets. The Jackson family sold their share of the company to Sony after Michael Jackson’s 2009 death. Now that Sony/ATV can claim sole ownership, McCartney is suing them to regain ownership of his work.

The lawsuit, which was filed in New York, is based on a facet of the 1976 Copyright Act, which stipulates that any creative works made prior to 1978 be returned after 56 years to their originators. McCartney’s filing is timely considering that he and Lennon first began writing together in 1962, precisely 56 years before 2018. Accordingly, a court could decide that McCartney may reclaim the lucrative rights to his songs as early as next year.

McCartney has been trying to reclaim those rights for many years. Thus far, Sony/ATV is unwilling to accommodate his request. They cite a long-term relationship with McCartney, and express disappointment that the musician filed the lawsuit, which they call unnecessary and premature.

The battle over the rights to the Beatles’ catalog is likely to continue for many years, which only highlights the need for individuals and companies to protect their intellectual property rights.

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A company’s intellectual property is easily one of its most valuable assets. It’s vital to protect this information at all times, and to ensure that all necessary legal precautions have been taken. Even when a company’s owners think they have done everything correctly to protect their intellectual property, things can still go wrong.

Lawsuit word breaking through red glass to illustrate legal action brought by a plantiff against a defendant in a court of law through opposing lawers or attorneys

That is the case for a Santa Barbara-based startup called Olaplex LLC. The company claims to have pioneered a revolutionary three-step process for protecting hair while it is being bleached in a salon. Bleaching is harmful to hair, causing it to become dry, brittle and damaged. Nonetheless, many people still undergo the treatments, particularly celebrities who must change their hair color for various roles. The result is lighter hair, but at a high cost.

Olaplex set out to change that with a new chemical bonding process that was designed to protect hair strands during the bleaching process. They filed a patent application to protect their invention, which they called Olaplex Bond Multiplier No. 1. It debuted in 2014 and quickly began winning awards. L’Oreal, a French-based conglomerate known for many beauty products, began trying to lure away certain Olaplex employees early in 2015. When that effort didn’t prove successful, L’Oreal and Olaplex entered negotiations in which the larger company proposed to acquire the startup.

Confidentiality and non-disclosure agreements were signed. However, the deal eventually fell through. Olaplex started noticing a few months later that L’Oreal seemed to be selling a product that was remarkably similar to theirs. What’s more, their advertising campaign seemed strangely familiar.

Olaplex has now filed a patent infringement and false advertising lawsuit against L’Oreal. The plaintiff argues that the defendant gained access to secret, proprietary information while the acquisition negotiations were underway. Olaplex argues that this gave L’Oreal access to their exclusive chemical process, which the older company then used to create a knock-off product.

Officials from L’Oreal strenuously deny the allegations. Nonetheless, this entire situation is a crucial reminder of how important it is for all companies, large and small, to protect their intellectual property with the help of an experienced attorney.

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Judge R. Gary Klausner has ruled that Led Zeppelin may not collect almost $800,000 in defense fees from the plaintiffs in a recent copyright lawsuit. Earlier, the copyright infringement case was settled in the band’s favor.

monumentThe lawsuit centered around the band’s most successful song, “Stairway to Heaven.” Songwriter and guitarist Randy Wolfe had long harbored suspicions that the better-known rockers had lifted the introduction of his 1968 instrumental composition “Taurus,” to be used in their hit. Wolfe passed away in 1997, but his trust filed the lawsuit in 2014. If the suit had been decided in the plaintiff’s favor, the trust might have received several million dollars. Estimates suggested that the song has generated more than $500 million thanks to its popularity.

The jury decided in Led Zeppelin’s favor. However, Jimmy Page and Robert Plant along with Warner/Chappell Music, the song’s publishing company, had expended considerable money in fighting the lawsuit. Once they prevailed, they decided that they were entitled to recoup those expenses from the unsuccessful plaintiff.

Ultimately, Judge Klausner found that the songwriters and publishing company were not entitled to legal fees and miscellaneous costs related to their defense because the initial lawsuit was not frivolous. The defendants contended that the lawsuit was merely an attempt to obtain easy money from famous musicians and that an award of legal fees to the defendants would discourage other potential plaintiffs from embarking on similar efforts.

The judge was not swayed by these arguments, stating that he had found sufficient validity in the lawsuit to allow it to go to trial. By definition, this meant that the suit could not be categorized as frivolous. Moreover, the judge asserted that there was no evidence suggesting that the Wolfe trustee had acted with “nefarious motives.”

The Led Zeppelin copyright infringement lawsuit contains many fascinating and instructive components. The most important of these may be how crucial it is to preserve and defend intellectual property rights. Whether you are an inventor or are being accused of profiting from someone’s else’s innovation, you need competent legal counsel to protect yourself.

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Sometimes, the only appropriate way to respond to a lawsuit is by filing a countersuit. At least, that seems to be the philosophy of Groupon, Inc. The story began a few months ago when International Business Machines, better known as IBM, filed a lawsuit against Groupon. IBM claimed that Groupon, which is an e-commerce marketplace that connects subscribers with merchants in their local area, infringed four of its patents.

Balance in digital background / A concept of technology law or tIBM claimed that at least two patents that are related to its late-1980s telecommunications service Prodigy are clearly infringed by the technology upon which Groupon bases its services. In their complaint, IBM asserts that they deserve compensation from Groupon for the newer company’s use of IBM’s patented technology. An IBM spokesperson notes, “Over the past three years, IBM has attempted to conclude a fair and reasonable patent license agreement with Groupon.” Frustrated in these efforts, IBM filed a lawsuit in Delaware where the company is organized.

Groupon chose to file a countersuit in Illinois, where it has its home base in Chicago. Among other charges in the complaint, Groupon skewers IBM as a “relic of once-great 20th Century technology firms.” Moreover, Groupon asserts that the technology giant “has now resorted to usurping the intellectual property of companies born this millennium.” A spokesperson from Groupon said in an emailed statement to journalists that: “Unfortunately, IBM is trying to shed its status as a dial-up-era dinosaur by infringing on the intellectual property rights of current technology companies, like Groupon.”

Groupon alleges in its countersuit that IBM actually infringes its patented technology with its WebSphere Commerce software. Merchants can use WebSphere to track customer orders and sales as well as offer special deals and pricing based on the customer’s current geographic location. Groupon insists that much of this technology has already been patented by them, which entitles them to royalties from the “billions of dollars in revenue that IBM has received” from their unfair use of Groupon’s technology.

The outcome of these cases remains pending, but the situation highlights the need to protect intellectual property and perform appropriate due diligence before developing new technology.

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A class action lawsuit has been filed against online flash-sale retailer HauteLook. Plaintiffs claim that they were sold purportedly genuine Rolex watches at a substantially reduced price. However, the watches they received were damaged or contained inferior replacement parts.

Rolex%20NOT%2088997580-001.jpgClass representative Vahdat Aghdasy purchased what he believed was an authentic Rolex watch from the HauteLook website. A large part of HauteLook’s appeal is that they claim to sell 100% authentic merchandise straight from the designer or manufacturer. Accordingly, customers are led to expect a certain level of quality. The vintage Rolex watches that the website offers from time to time were no different. HauteLook specifies that the watches are sold “as is,” meaning that there may be some level of damage.

Nonetheless, the company promised to provide certified appraisals of each watch after it was purchased. Aghdasy and other class members received an appraisal from a company calling themselves Swiss Watch Appraisers. However, they note that there is no contact information for the company except for a telephone number that is disconnected. The lawsuit alleges that the appraisal certificates are fraudulent and that the watches have never been appraised.

Moreover, HauteLook’s claim that the watches are 100% authentic is also coming under fire. Consumers are finding that their watches contain inferior, non-Rolex parts and that the watches do not come from the brand as promised by the website. Instead, plaintiffs believe that the watches are coming from various jewelry stores and other retailers.

Plaintiffs are seeking damages against HauteLook and Nordstrom, the company that purchased the web retailer in 2011. The basis for the lawsuit includes common law fraud, breach of implied and express warranties, unjust enrichment and conspiracy to commit fraud. Plaintiffs argue that HauteLook significantly misrepresents the actual value of the watches. Accordingly, they are seeking actual damages and exemplary and/or punitive damages in addition to attorney fees and interest.

Rolex, a company known for vigilant protection of its intellectual property rights, has yet to comment on the lawsuit. It would not be surprising if the Swiss watch-making company decided to sue HauteLook and Nordstrom as well.

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Technology plays an amazing role in Hollywood’s movies. Many of the most popular movies are visually stunning thanks to an array of high-tech gadgets. Today’s moviegoers are pretty savvy, and they are very familiar with the idea of motion capture, the process through which markers are placed on an actor’s body so that their movements can be faithfully recorded. A related technology, known as MOVA, is now the subject of more than one lawsuit.

Trademarks%2047837347-001.jpgMOVA works like motion capture, but it’s focused on the actor’s face. Phosphorescent makeup is applied to an actor’s face, and then specialized software and hardware work together to convert even the subtlest of facial expressions into data. The technology has already been used on many movies such as “Guardians of the Galaxy,” “Terminator Genisys,” “Deadpool” and more. MOVA is so successful that it received a Scientific and Technical Oscar award at a ceremony in early 2015. The trouble is, there seems to be quite a bit of disagreement about who developed MOVA and who actually owns the rights to it.

The first lawsuit came in February of 2015 when a Chinese tech company known as Shenzhenshi Haitiecheng Science and Technology, or SHST, filed a lawsuit in California against a company called Rearden LLC. The plaintiffs claimed that Rearden was wrongfully claiming ownership of MOVA. In the complaint, SHST alleges that ownership of the MOVA technology shifted several times in the months leading up to receipt of the Oscar. The technology was originally developed by inventor Steve Perlman, but SHST argues that he sold it to another organization. The assets traded hands two or three more times before coming to SHST.

Perlman and Rearden LLC have now launched a countersuit, claiming that SHST has committed various patent and copyright violations. Ultimately, Rearden’s complaint seeks to block the release of movies that use the MOVA technology until the courts can resolve who actually owns the rights to the invention. Legal consultants believe that the suit won’t be able to block the distribution of current films, but it may halt production on some before a settlement is reached.
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PayPal may soon bring to an end an ongoing class action lawsuit that it has been fighting since 2010. Parties to the case, known as Zepeda vs. PayPal, have reached a tentative settlement agreement over allegations that the online payment company utilizes an unlawful freeze on accounts.

PayPal%20Corp-001.jpgMoises Zepeda and other members of the class are frequent sellers on eBay, the online auction website. They typically received payment via PayPal, which touted itself as being more secure and convenient than other payment methods. However, Zepeda and others noticed that the funds they received from buyers in their PayPal accounts were often subject to a hold of up to 180 days. PayPal claimed that the holds or account freezes were necessary to combat fraud. Plaintiffs didn’t believe that the account freezes served any useful purpose. In addition, having their PayPal account frozen for an extended period of time made it difficult to do business.

The class filed the lawsuit in 2010, and it has required five years to even reach a tentative settlement agreement. While presiding over the possible agreement, the judge noted the “long and tortured history” that the parties to the case have endured. The proposed, approximately four million dollar settlement seems to be a step in the right direction, but only time will tell if it brings about any real changes. Thus far, PayPal has admitted to no wrongdoing, and they don’t appear to be willing to make sweeping changes to their account freeze policies.

However, PayPal seems ready to agree to provide users with more information when a hold is placed on their account. Customer service callers can ask why a hold is in place, and now PayPal staffers must tell them the reasoning behind the hold if it does not violate security measures.

Time will tell if sellers are satisfied with these results. Considering how hotly contested the case has been up to this point, it will be a minor miracle if the settlement agreement is even finalized. Consumers may benefit from new disclosure standards that PayPal will have to comply with, allowing for greater transparency.
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