This link has been on my “to blog” list for far too long. Steven Snell over at Smashing Magazine published this great article about the use of colors in corporate branding and design back in January. The piece is geared toward designers, but is also interesting from a trademark perspective. The four points at the end of the article are powerful points to keep in mind when thinking about trademark protection and good will.

A great collection of airline logos. And now I’m regretting that I did not attend the INTA annual meeting finale at the Musuem of Flight. (HT @vidiot_)

Hasbro is agressively licensing it’s famous game brands for film adaptations.  William Morris Agency brokered a six-year deal between Hasbro and Universal.

Hasbro properties currently in development at Universal include: Battleship; Ouija; Stretch Armstrong; Candy Land; Monopoly; and Clue.

“I think what were seeing in the world at large is the power of brands distinguishing themselves,” said Universal Pictures Chairman Marc Shmuger, who was previously the studio’s marketing capo. “As we’re gripped with fear and anxiety, we look for something we can rely on and trust. Look what just happened when we brought back the original cast of ‘Fast and Furious’ And so the value of brands has changed, and with the value of brands changing, what the owners of the brands want to accomplish changes too.”

One of the premier professional organizations for photographers, the American Society of Media Photographers, has launched a new blog call Strictly Business. The ASMP is a great resource for photographers and others in working in creative fields. (via The Licensing Plate)

Seth Godin does not use Twitter, but he does occasionally have to stop the Twittersquatters. See also.

Brandchannel has posted the results of its 2009 BrandJunkie Awards. Which brand made the best effort at being “green?” Telling result.

Were my eyes deceiving me, or did I really see American Spirit cigarettes featured in the premier of Kings on NBC last night? If I remember correctly, American Spirit cigarettes have this mark stamped on the side of each cigarette. During one of the battlefield scenes in last night’s two-hour premiere there was a close-up of a cigarette as one soldier grabbed it out of another soldier’s mouth. It appeared to have the same logo as American Spirit. Can anybody confirm? Interestingly, I did not see any other brands featured in the show.

A very interesting post over at Compliance Matters on PACER, accessibility of federal court filings, and copyright. The post references a Times story from February 13 which reported that Aaron Schwartz, had downloaded over 19 million pages of court filings through a free PACER connection at a public library. Apparently, 19 million pages represents about 20% of the PACER database. That is whole lot of downloading!

Another great post by Pamela Chestek. This one covering the case of the trademark license that never was.

Canadian Trademark Blog reports that the Federal Court in Canada has ruled that Canadian law does not recognize a rule similar to the current U.S.  trademark prosecution fraud standard. While the U.S. doctrine appeared “initially attractive”, Canadian law allows for an amendment “where the misstatement is innocent and in good faith”. (via Likelihood of Confusion)

**UPDATE: The Office of Consumer Affairs and Business Regulation announced February 12, 2009, that it has delayed the effective date of the new identity theft regulations until January 1, 2010.**

New Massachusetts Identify Theft Regulations Go into Effect on January 1, 2010

New regulations implemented by the Office of Consumer Affairs and Business Regulation (OCABR) dictating how Massachusetts businesses store and protect “personal information” go into effect on January 1, 2010.  The new law was originally set to go into effect on January 1, 2009, but the OCABR extended the deadline due to the current economic climate. However, it’s not too soon for Massachusetts businesses to begin formulating a comprehensive plan for compliance with this new law.

What is “personal information”?
The new regulations define “personal information” as a Massachusetts resident’s first name and last name or first initial and last name in combination with a Social Security number, driver’s license number or state issued identification number, or financial account number.

All businesses that own, license, store or maintain personal information, in either paper or electronic form, will be required to establish, maintain, and monitor a written information security program, including minimum security measures covering all computer systems, wireless networks, laptops and other portable devices.

Does this apply to your business?
Your business will be required to comply with the new regulations if it:

• Has employees. Because all employers hold their employees Social Security numbers, the law applies to all employers in Massachusetts, and/or;
• Collects personal information from customers, clients, members, or others. Companies typically collect personal information in connection with, for example, the sale of goods or services.

The law, issued under Massachusetts General Laws c. 93H, provides the Attorney General with the power to bring an action under the state’s consumer protection law to remedy violations. Massachusetts businesses should therefore act quickly to assess whether their current practices are in compliance with the new measures and make any adjustments necessary before the new regulations go into effect.

Administrative Security Requirements
The evaluation of whether a security program is in compliance with the new regulations will take into account a number of factors, such as (i) the size, scope and type of business, (ii) the amount of resources available and (iii) the amount of stored data. However, at a minimum, the regulations require each security program to include, among other elements, the following:

• A designated employee responsible for maintaining the security program;
• Internal and external risk assessments of the security, confidentiality and integrity of any electronic or paper records containing personal information, including means for detecting and preventing security system failures;
• Development of written policies and procedures for the physical access, storage and handling of personal information;
• Development of a process for the documentation of actions taken in response to any incident involving a breach of security such as process reviews and changes in business practices relating to the protection of personal information; and
• A system for monitoring and verifying that third-party service providers can safeguard personal information including contractually requiring third-party service providers to maintain such safeguards.

Computer System Security Requirements
The regulations also contain specific technical requirements for the establishment and maintenance of a security program to cover all computers, wireless systems and other portable devices.  Those requirements include:

• The implementation of secure user authentication protocols such as control of user IDs, a secure method of assigning, selecting and controlling passwords, and access blocking mechanisms for multiple unsuccessful attempts to gain access to a system;
• Secure access control measures that restrict access to records containing personal information to those who need such access and the assignment of unique identifiers and passwords;
• To the extent feasible, the encryption of all transmitted records and files containing personal information that will travel across public networks or wireless networks;
• A system for monitoring unauthorized use of or access to personal information;
• The implementation of up-to-date firewall protection and operating system security including malware and virus protection; and
• The encryption of all personal information stored on laptops.

Third Party Service Providers
If your business grants third party service providers access to personal information, your business must take all reasonable steps necessary to verify that those service providers have the capacity to protect such personal information as required by the regulations.

Notification Requirements
If your business knows or has reason to know (1) of a security breach, or (2) that personal information was acquired or used by an unauthorized person or for an unauthorized purpose, your business will be required to notify the Attorney General and the OCABR of that breach or unauthorized acquisition or use.

Developing a Plan
Massachusetts businesses, and those who do business in Massachusetts, are encouraged to begin formulating their plans ahead of the regulations going into effect. We recommend businesses that will be subject to the new regulations take the following initial steps:

1. Appoint a data security coordinator.
2. Identify all paper and electronic records, computing systems, laptops and storage media used to store personal information.
3. Conduct a security assessment against the requirements of the new regulations to begin identifying your company’s security risks and need for implementing new policies and programs.

For more information on these new regulations please see the OCABR website.

If you have any questions, please contact us at 978.463.9100, or by email to Matthew Saunders at msaunders@massiplaw.com or Aaron Silverstein at asilverstein@massiplaw.com.

Thanks to Kristen Cichocki for her invaluable assistance in preparing this document.

Disclaimer: The foregoing is provided with the understanding that it does not constitute the rendering of legal advice or other professional advice by Saunders & Silverstein LLP or its attorneys.

Yes, Forbes has better things to be “reporting,” but for brand junkies, its list of the 20 most expensive fictional properties sure is fun. And here it is in pictures. Maybe because I watched Iron Man last night, Tony Stark’s Malibu spread is at the top of my list. Especially if the gadgets are included.

Brandweek reports that according to 1.2 million consumer interviews conducted in 2008 via the online BrandIndex poll, older, more well-established brands rose to the top.

When asked to rate the health of top consumer brands, mostly tried-and-true names rose to the top. Rubbermaid, Whirlpool and M&M’s, for example, all fell within the top 10.

This is a great quote about high quality explosions and animal attacks.

While consumers love their Sony TVs, they apparently like their Discovery Channel even more. The same holds true for the History Channel as the two networks ranked first and second, respectively. “Our shows are either about blowing something up or watching someone get bit by something,” said James Hitchcock, svp, marketing and branding for the Discovery Channel. “We do it in such a high quality way, at the depths of the ocean floor or at the highest peaks, that no one can touch us on that. The consumer acknowledges that.”

Other brands with improved ratings:WalMart, Craiglist, Southwest, Facebook, MySpace, and YouTube.

Brands with biggest drop offs: AIG, Wachovia, Washington Mutual, Merrill Lynch, Morgan Stanley and Goldman Sachs.

There certainly are some tricky TTAB procedural rules. This is not one of them.

The always excellent Broadcast Law Blog is reporting that the Copyright Royalty Board has issued a Notice of Proposed Rulemaking that would require full census reporting for services required to pay royalties for public performances of sound recordings. This change would likely be an administrative nightmare for many small radio stations that also stream online.

Over at Compliance Matters, Adam Ayer addresses the issue of licensed software and the legality of backup copies. His post comes complete with two free rap refereces.

Given the prevelance and importance of having multiple backups, including offsite, I agree that it is ideal to address the issue of backup copies in software licenses. Hopefully we see more of this.

The computer mouse turns 40 today. You’ll never guess how the mouse got its name.

The Xerox Star workstation is what actually brought mouses to the masses, but it was the Macintosh in 1984 that really made the devices popular.

Apple paid $40,000 for the mouse license just a short time after Engelbart’s patent expired on the product.

According to VentureBeat, Friendster has been granted its fourth U.S. patent related to social networking. The article reports that the network is popular in Asia. For a minute it was big in the U.S., but has long since been overtaken by Orkut Facebook, MySpace, and LinkedIn.

Ten things you should never write in an email or instant message.

1. “I could get into trouble for telling you this, but…”
2. “Delete this e-mail immediately.”
3. “I really shouldn’t put this in writing.”
4. “Don’t tell So-and-So.” Or, “Don’t send this to So-and-So.”
5. “She/He/They will never find out.”
6. “We’re going to do this differently than normal.”
7. “I don’t think I am supposed to know this, but…”
8. “I don’t want to discuss this in e-mail. Please give me a call.”
9. “Don’t ask. You don’t want to know.”
10. “Is this actually legal?”

(via EDD Blog)

The Green Bay Packers have been ranked the top sports team brand in its local market by the Turnkey Team Brand Index. Keep in mind that this is local market only. Of course we find it simply impossible that the Red Sox could be ranked second at anything.

“What this is saying is the following the Packers have is more intensely loyal to supporting the Packers than any other team,” said Len Perna, president and chief executive of New Jersey-based Turnkey Sports & Entertainment. “What this basically says is that, all other things being equal, a sponsor gets more value in sponsoring the Packers than any other team.”
(via Deadspin)

What do you do if you’ve been laid off, or if you’re holed up in your cubicle, waiting for the axe to fall? Apparently, you play a lot of video games. While the economy sinks, the fortunes of casual game companies are rising. Xconomy explores the reasons why.

A quick and dirty interview with the creator of a number of black-metal band logos. (via Brand New)

Looks are often always deceiving in the music business.

“I’ve worked with musicians, artists and entertainers that in the eyes of the media are very wealthy,” said lawyer Jason Gabbard, who represented a fashion firm that settled a suit against Dash and his wife over $148,505 in unpaid fees. “But to borrow a phrase from my Kentucky homeland, they haven’t got a pot to p— in – they’re broke.”

The article refers to Dash’s “MC Hammer-like financial abyss[.]” Ouch!

Do you really think most musicians own the homes you see on Cribs?

NameWire on use of the Mandela name for branding purposes.

Much has already been written about “in-game” use of trademarks.
This article, part 1 of 3, is a good primer on the subject.

From the New York Times: “Searches on the U.S. Patent and Trademark Office database run throughout Monday failed to find either “Windows Azure” or “Azure Services Platform” as registered trademarks. Microsoft used both names to describe its Software and Services technology.”

I’m not even sure where to start with this article. Instead of dissecting the entire piece, all I will say for now is that Microsoft has successfully used Paris Convention priority many times. Its strategy in some cases has been to file trademark applications in countries which do not have an easily accessible trademark databases, such as Germany. Microsoft will then go about registering domain names and also filing trademark applications in other countries within 6-months of the original filing, thereby claiming a priority date of the original filing. It allows the company to operate in stealth mode while at the same time securing priority.

UPDATE: Sure enough, at least one US application is based on a foreign filing in South Africa.

BFads.net, my destination of choice for scoping out upcoming Black Friday (and this year, pre-BF) sales, gives a roundup of the various cease-and-desist letters it’s received from retailers so far this year. Of note is the communication from Sears, which prohibits BFads from displaying scans of the ad itself, but allows them to provide a text list of the sale items. Well played.

File under “What the hell were they thinking.”

LaLa, the music site that generated some buzz on its launch for its unique listening and pricing structure, might be in for some press they don’t really want. It seems they’re making a habit of jazzing up their band pages with photos from Flickr, without bothering to get permission from the photographers first. After Flickr users got wind of this and raised the alarm, it appears LaLa added a line above each photo crediting Flickr as the “source”, and a link reading “Report image” that, when clicked, fires up an email to their support team.

It’s unclear if LaLa has some sort of relationship with Flickr that they believe permits this activity even without some express opt-in by Flickr users. Barring such an arrangement, I expect LaLa is going to be spending a bit of time dealing with a flood of DMCA notifications.

Update: it appears LaLa got the message, and has pulled all of the suspect photos from the site.

The Respondent accepts that the Domain Name is similar to the Complainants’ well-known trade mark, but denies that it is confusingly similar to that trade mark. She contends that it will be obvious to all that her use of the name, Hairy Winston, is a playful variation of the Complainants’ famous trade mark. One of her dogs, a hairy dog, is named Winston. She selected the name, Hairy Winston, for her ‘luxury pet boutique’ business to make playful use of the name of the dog and the Complainants’ trade mark. She acknowledges and intends that the name will bring the name of the Complainants to mind, but not in a context likely to lead to any confusion. As she puts it, “thus, the name playfully suggests to the customer both high-quality goods and an incongruous association with the hairy canine world.”

The Panel is satisfied that the Respondent’s intention in registering and using the Domain Name as she has was to parody the Complainants’ famous name and trade mark and that she was justified in believing that the parody would successfully differentiate the parody from the original such as to obviate any significant risk of confusion or deception. In such circumstances it would be perverse to categorise the Respondent’s intentions when she registered the Domain Name as bad faith intentions for the purposes of the Policy. The Policy is intended to address clear cases of cybersquatting, and whatever else the present case may be, it is not that.

The decision can be viewed here.