July 2012 Prosecution Group Luncheon

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Topics covered in this month’s Trademark Group Luncheon include balancing of first amendment interests and trademark rights as applied to sports uniforms as well as a licensing debacle between Apple and the owner of the “iPad” trademark in China. The group delved into the copyright realm by discussing the protectability of a hookah base shape when that shape is a useful article that cannot be separated from its utilitarian elements.

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July 2012 Prosecution Group Luncheon

  1. 1. Prosecution Group Luncheon July 2012 Trademarks
  2. 2. Failure To Function, the next rejection? MONTICELLO YELLOW Hand Sanitizer DispenserIn re Thomas Jefferson Foundation, In re 3M Company, Serial Nos. 77701886Inc., Serial No. 77967242 (June 29, and 77701928 (May 10, 2012) [not2012) [not precedential]. precedential], reconsideration denied, June 21, 2012.
  3. 3. Paint the University w/o a License• First Amendment interests in artists depiction of state universitys football uniforms in paintings, prints, and calendars outweigh any purported trademark rights in uniforms;• public interest in free expression must be weighed against public interest in avoiding consumer confusion,• content is artistically relevant … depiction of uniforms is needed for realistic portrayal of scenes from universitys football history• University of Alabama Board of Trustees v. New Life Art Inc., 11th Cir., 6/11/12
  4. 4. Are Hookahs Really Useful?• Shape of water container as base of hookah is useful article ineligible for copyright protection, even if shape is not critical to function, – containers shape and container itself are "one and the same," – it does not matter that container would still be functional if it had different shape, – artistic aspects of shape cannot be physically or conceptually separable from containers utilitarian elements• Inhale Inc. v. Starbuzz Tobacco Inc., C.D. Cal., 6/18/12
  5. 5. Buy a Chinese iPad for $60 Million?• Apple Inc. is paying $60 million to Proview International Holdings Ltd. to settle a dispute over the use of the "iPad" trademark in China.• Proview registered an iPad trademark for a desktop computer in 2001. In 2009, a company set up by Apple bought the rights to it from Proview for around $55,000, but Proview later claimed that deal was only with a Taiwan-based affiliate and did not cover mainland China.• Apple had $8 billion in Chinese sales Q1 2012

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