When two idiots go to battle only a fool can win. But which one? R&R Games, Inc. produces and sells a board game with the title and brand name “YOU MUST BE AN IDIOT!” In 2006, the US Patent & Trademark Office (the “USPTO”) granted trademark registration for the mark, reg. no. 3137118.
Late comer TwoPointOh Games produces and sells a card game and cards for games under the title and brand name “YOU’RE AN IDIOT” and obtained a trademark registration in 2018, reg. no. 5524635. However, R&R Games was not amused. Instead of taking its marbles and going home, R&R Games filed a cancellation proceeding with the USPTO’s Trademark Trial and Appeal Board (the “TTAB”) seeking to cancel TwoPointOh’s registration. On May 23, 2022, the TTAB decided the battle between:
The TTAB took note that the respective products are strongly related, the channels of trade identical, both advertised via the same methods, and sold through the same outlets. Further, both products could be sold to and used by the same type of consumers, who are considered of ordinary sophistication. The latter point can be important because highly sophisticated consumers of sophisticated, expensive products tend to be more discerning of what they are purchasing. Conversely, consumers of ordinary sophistication would tend to be less discerning, especially with much less expensive consumer products.
The TTAB then analyzed the respective marks. The Board found the marks to be “extremely similar in appearance and sound” because of the dominant use of the word “IDIOT” in both. Furthermore, the Board found that the meaning and impression of both marks “constitute essentially the same insult,” i.e., calling someone a fool. From the perspective of the average purchaser, both marks are nearly the same. Of course, it doesn’t help that the packaging of both products have a similar look as well. Accordingly, the TTAB found in favor of R&R Games’ “YOU MUST BE AN IDIOT,” granting the petition to cancel “YOU’RE AN IDIOT.”
The lesson here for businesses is pretty straight-forward: don’t play idiot games and foolishly adopt marks similar to other brands that can hoodwink consumers with confusion.
When Taurus climbs a stairway to heaven, or perhaps the other way around — when Stairway to Heaven climbs on the back of Taurus: the case of the ‘60’s rock band Spirit vs. rock legend Led Zeppelin is one of 2018’s more interesting copyright cases.
Back in 2014, Michael Skidmore — trustee for the estate of Randy Wolfe, deceased guitarist for Spirit — sued Led Zeppelin for copyright infringement over Led Zeppelin’s song “Stairway To Heaven” (“STH”). After a trial the jury concluded that Led Zeppelin’s “Stairway To Heaven” did not infringe Spirit’s song “Taurus.” However, on September 28, 2018, the U.S. 9thCircuit Court of Appeals breathed new life into the case, reversing the trial verdict and ordering a new trial. (See, Skidmore v. Warner/Chappel Music Inc. and Led Zeppelin, et al., 15-cv-3462, US Dist. Court, Central District Calif.; 9thCir. Appellate No. 16-56287.)
While the matter of recognition was important to Randy Wolfe’s family, the Wolfe estate is nonetheless looking for substantial money damages. The Copyright Law has a three-year statute of limitation, which means that the Wolfe estate can recover damages only from 2011 forward. That is still a substantial amount, especially considering royalties for future air play and recording sales.
Led Zeppelin first released STH, the most popular song in Rock ‘n Roll history, in 1971. However, three years earlier in 1968, Spirit recorded and released “Taurus,” written by Randy Wolfe. At issue is the similarity of 4 bars of music in the opening of STH and in the opening of “Taurus.” These four bars form the underlying musical theme in both songs.
So, is that enough to find copyright infringement? Some may argue that a mere four bars of music do not make a song. True enough. But the whole song does not need to be copied for there to be infringement. After all, in 1978 George Harrison’s mega-hit song “My Sweet Lord” was found to have infringed the Ronny Mack song “He’s So Fine” (the 1963 hit performed by girl-group The Chiffons), based on short musical phrases with identical “grace notes” in the “hook” of both songs (a repeated short riff or phrase, often in the chorus, that “hooks” the ear of the listener) falling on, literally: “My sweet lord…”; and “He’s so fine…” In the case of Led Zeppelin’s STH and Spirit’s “Taurus,” the opening four bars could be analogized as the hooks in both songs, especially in the case of STH’s iconic opening guitar arpeggio.
Led Zeppelin has a history of musical “appropriation.” In 2012 they settled a copyright law suit over their song “Dazed And Confused” for allegedly infringing Jake Holmes’ song of the same title. And there have been other infringement claims made on behalf of Howlin’ Wolf, Richie Valens, and others. Skidmore’s Complaint in the STH case shows a chart pointing out 17 instances of infringement claims against Led Zeppelin.
Copyright infringement requires proving three things: (1) the plaintiff owns a valid copyright in the work in question; (2) the defendant had access to the work and copied its protected elements; and (3) the defendant’s work is substantially similar to the plaintiff’s work. If the defendant had access to the original work, the matter of copying can be inferred from circumstantial evidence. In this case, it is clear circumstantially that Led Zeppelin’s Jimmy Page and Robert Plant had access to “Taurus.” The band Spirit was well known to both Page and Plant. Spirit had toured with Led Zeppelin before STH was released. In many of those shows Spirit performed “Taurus.” Jimmy Page even admitted at trial that prior to composing STH he owned a Spirit album that contained “Taurus.” The jury concluded that even though Led Zeppelin did indeed have access to “Taurus,” the two songs were not substantially similar. Therefore, no infringement.
The case, however, had an odd turn — the jury was never allowed to hear the actual Spirit and Led Zeppelin sound recordings. The trial judge had ruled the protectable copyrighted work was not Spirit’s sound recording but the musical composition as transcribed. Therefore, Michael Skidmore essentially had to prove that STH, as transcribed, was substantially similar to “Taurus” based on the rather simplistic lead sheet music deposited with the Copyright Office in 1967. While a witness at trial with a guitar was permitted to play the sheet music, such a “performance” would not have the same impact as hearing the actual sound recordings.
The 9thCircuit reversed the trial verdict, concluding that the judge had made several errors in his jury instructions. On retrial the jury may be able, this time, to hear the actual sound recordings. Since Jimmy Page had stuck to his denial that he had actually heard “Taurus,” the appeal panel directed that the jury should be allowed to hear the sound recordings for the purpose of showing whether Led Zeppelin had access to Spirit’s song. The 9thCircuit panel also found the trial judge incorrectly instructed the jury that “chromatic scales, arpeggios or short sequences of three notes” are not protectable. Since the four bars at issue are fundamentally an arpeggio, the jury instruction ham-strung the plaintiff’s case. As noted above, a short musical phrase was enough to hang George Harrison with copyright infringement.
In comparing the particulars, both songs are in the key of A minor. Both have an A minor chord progression (or arpeggio) with a descending bass line. Both are finger picked. Both are in the same meter. Both have the same tone, a kind of Baroque era, lute-like quality. But while STH has a similar bass line, it also has an ascending counterpoint melody not present in “Taurus.” So, the songs are similar, but are they substantiallysimilar…? Clearly the jury had thought not.
It is also possible that the “Taurus” arpeggio is already in the public domain and, therefore, cannot be protected under copyright. The A minor arpeggio with a descending bass line is not uncommon and, in fact, goes as far back as the Baroque era 400 years ago. The “Taurus” passage is very similar to the opening phrase in “Sonata di Chiattara e Violino, con il suo Basso Continuo,” the 360-year old work of Italian composer Giovanni Battista Granata. But perhaps all that will be sorted out during the new trial — perhaps the estate of Signore Granata might appreciate some official “recognition” for his contribution to STH.
One can do one’s own audio comparison by clicking to following YouTube links:
“Where the offense is, let the great axe fall.” — Claudius in Hamlet.
Here’s a recent situation where a family-owned business failed to do some due diligence, chose to adopt their family name as their brand name and trademark, and in the end created an offense that brought down the axe — a story of two wineries in “The Blair Family vs. The Blair Family.”
Here’s another one to file under the maxim “use it or lose it,” from a recent decision in the Trademark Trial and Appeal Board (“TTAB”) that is also an example of how people with inflated importance often fail to pay attention to the finer details, to their detriment.
Surfing is a competitive sport and that spirit of rivalry extends to businesses teaching the sport of surfing. In this instance, a late comer to the surfing school business in Santa Cruz, California, decided to threaten an established competitor with trademark infringement.
Dark Web Drug Dealer’s Trademark Application Gets Him Nailed
The subject of this article could be filed in the category of “dumb criminals.” And here’s why.
In 2015, David Ryan Buchard of Merced, California, was already under investigation by the US Postal Inspector and a special agent for Homeland Security Investigation (“HSI”) for suspicion of drug dealing. They believed that Buchard was doing his transactions on a dark web drug marketplace known as The Silk Road. They were trying to track Buchard’s Bitcoin transactions on The Silk Road. Bitcoin is a form of digital money technically known as “crypto-currency,” as opposed to “fiat-currency” (i.e., money created and regulated by governments). Crypto-currencies, including Bitcoin, are legal for private transactions, but are very often used by drug traffickers because the users’ real identities are cloaked by pseudonyms.
