“Oh what can I do, my Buccaneer? Can you help me get my truck in gear?” Island of Lost Souls, Blondie

Tom Brady attempts to trademark 'Tompa Bay' and 'Tampa Brady ...

At the end of the 2019 NFL season, the handwriting seemed on the wall for the New England Patriots. Coach Bill Belichick, impatient with failure, seemed ready to move on from his 6 time Super Bowl champion quarterback. And the quarterback himself began signalling that his days of throwing soul-crushing strikes to the likes of Julian Edelman and “Gronk” at Gillette Stadium were coming to an end. But not his career.

Down south on I-95, Super Bowl nemesis (and for many outside of Big Blue nation a dubious Hall of Fame candidate) Eli Manning called it quits after 16 years leading the Giants. Although drafted by San Diego, Eli’e entire career had been spent in Blue, with two improbable Super Bowl W’s over the Patriots, the two gems in an otherwise quotidian career. It was a foregone conclusion that the junior Manning would not emulate big brother Peyton and continue his career in another uniform.

But what about the King of New England? The guy had entered his mid-forties in elite condition, thanks largely to a strict diet of eating absolutely nothing anyone would classify as “delicious,” He gave no hint that the Patriots would be his one and only stop on the NFL train. Indeed, he entered 2020 as an unrestricted free agent. And many teams needed a boost at the QB position and the box office.

So what factors and criteria would guide the soon to be former Patriot’s rebellious decision to leave the cradle of the Revolution? How was the Pats undisputed GOAT to choose where to take his talents?

Well, based on filings at the USPTO, one of those criterion apparently was trademarks! Last week, the new QB for the Florida team called The Buccaneers filed two applications for trademarks that could not have been coined if he had signed with any other team: TOMPA BAY and TAMPA BRADY. Both applications were filed based on Mr. Brady’s sworn bona fide intent to use each mark on “Clothing; Headwear; Footwear.” Both appear to have been “audibles,” strategically filed to preempt others from cashing-in on Brady’s lucrative persona. Mr. Brady now will have up to 36 months to begin selling his new signature product line once the Trademark Office approves his applications.

It’s not unusual for sporting legends to brand themselves and use their brands to sell merchandise. Michael Jordan with his AIR JORDAN comes to mind. But it’s either a lucky coincidence or sheer marketing genius for a player to choose to write the last chapter of a legendary career at the one place that synched with his first and last name to provide such potent brand potential.

Maybe Eli Manning would still be looking forward to another season if the NFL had accelerated its UK expansion plans with a team in Manchester?

Quote of the Day: “It’s a blessing for a man to have a hand in determining his own fate.” Blackbeard

“Greensleeves was all my joy, Greensleeves was my delight,Greensleeves was my heart of gold,” Greensleeves, traditional

Forever Champions at the Masters

As we head towards Easter Sunday having polished off the last of the Manischewitz from Passover, the void left in our daily lives by Covid-19 continues to expand exponentially, like the virus itself. Working from home and self-quarantining, mired in Netflix, Amazon, and Hulu, the absence of professional sports from our TV and news landscapes feels particularly stark this weekend.

In normal times, sports fans would be feasting not just on Passover brisket and Easter lamb, but on the first major tournament of the professional golf season–the Masters, held each year in the same place, Augusta National in Georgia. It’s one of the premier events in all of sport, and perhaps the sporting world’s toughest ticket. Even getting a pass to attend a practice round is considered a real coup. Past champions include all of the greats–Palmer, Nicklaus, Player, Watson, Michelson, Mcilroy, and Tiger.

Along with the money and prestige that comes with winning, each Masters champion gets to don and wear the event’s signature wardrobe item–the Green Jacket, like the ones Arnie, Jack, and Gary are sporting above. There’s one caveat. The green jacket stays at the club, where its stored until the former champion returns and can wear it at the annual Champion’s dinner that precedes the tournament’s first round.

It’s only fitting for such a tailor made symbol that it’s become a registered trademark. In March of this year, (which now feels like an eternity ago), the U.S. Patent and Trademark Office issued Registration No. 6,000,045 shown below.

Mark Image

“How can a garment be a trademark ?”, you may ask. Well, standing alone, it can’t. Minnie Pearl, the legendary star of the Grand Ole Opry, was certainly known by her “trademark” straw hat with its band of fake flowers and dangling price tag. (Indeed, “hat” is the answer to the NY Times crossword puzzle clue “Minnie Pearl’s trademark.”) But although Ms. Pearl talked about branding and trademarks when she was the keynote speaker at the International Trademark Association’s annual meeting when it was held in Nashville, she never secured a registration for signature wardrobe accessory. (It does however, reside today at the Smithsonian on the National Mall, not too far from the Trademark Office in Alexandria. Virginia.)

So how was Augusta National able to trademark the green jacket? Two reasons. First, it used the Green Jacket symbol in connection with actual services, namely, ““promotion of goods and services through sponsorship of sports events” and “organizing and conducting golf tournaments.” Second, Augusta National proved that the Green Jacket had acquired trademark significance–what we in the trademark game call secondary meaning–though over 70 years of use. Indeed, Augusta National convinced the Trademark Office that this was no ordinary item of haberdashery, but has long served as the famous brand symbol of Augusta National and the Masters tournament.

There will be no Green Jacket awarded this weekend. With the county not feeling up to par, the Masters has been moved to November, with fingers crossed that the sporting world will eventually reopen for business. This may be frustrating news for players and fans, but there’s one possible silver lining. Last year’s champion and five-time Masters winner Tiger Woods will have six more months for his aching back to heal and be ready to defend his title. If he does, it will not only be another dazzling career achievement, it will save Augusta National several hundred bucks and Mr. Wood’s Green Jacket will fit like a glove. Past winners simply slip on their own jacket. Membership has its privileges.

Quote of the day: “The most rewarding things you do in life are often the ones that look like they cannot be done.” Arnold Palmer

“There’s colors on the street. red, white, and blue.” Rockin’ In The Free World, music and lyrics by Neil Young

Registration of Color Trademarks on Product Packaging: The TTAB ...
Registration of Color Trademarks on Product Packaging: The TTAB ...

On a grey day towards the end of week 4 of our Covid conundrum, a little color is a welcome diversion–even if it comes from a trademark case. The latest development in this vibrant sub-set of trademark law concerns the packaging for Forney Hacksaw Blades and other hardware products. Forney claims that its particular packaging palette, shown at the top, featuring a black band at the top and then morphing from yellow to red, is as much of a trademark as the FORNEY name itself.

Now, claiming color is a trademark is nothing new. Way back when, Owens Corning registered “pink” as the trademark for fiberglass insulation, riding the popularity of TV commercials featuring the Pink Panther to prove that the color pink had achieved a “secondary meaning”–i.e., had acquired trademark distinctiveness– besides being a nice color.

Yes Colors can be Trademarked - Owens Corning Fiberglass Pink ...

Owens Corning had to go all the way to the U.S. Court of Appeals for the Federal Circuit to get its registration.

A few years later, the U.S. Supreme Court weighed in, ruling on a single-color trademark claim for the color of a dry cleaning press pad, a color that humorist Jean Shepherd (creator of the classic film “A Christmas Story”) might have called “goat-vomit green:”

Qualitex PC-48 FGR-RC Press Pad

The Supreme Court confirmed that a single color of a product can be a trademark, but only if “secondary meaning” has been earned through long use, commercial success, and substantial advertising. That case was Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995).

But proving secondary meaning for a single color applied to a product or packaging can sometimes be a challenge, as General Mills discovered when it tried to register “yellow” as a trademark for this pantry staple:

The TTABlog®: Precedential No. 24: Yellow Cheerios Box Lacks ...
General Mills' effort to trademark yellow box fails | Food ...

Despite decades of sales and advertising, General Mills’ efforts to establish secondary meaning for its yellow box failed because many other cereals also come in yellow boxes.

Wouldn’t it be easier for aspiring trademark colorists if color marks were treated like word marks, where words that are made-up, like KODAK, arbitrary like APPLE for computers, or suggestive like BEAUTYREST for mattresses, are deemed “inherently distinctive” and instantly protected without the need to prove “secondary meaning.”

In Forney’s case, Forney argued that its non-verbal cascading colors for product packaging were likewise inherently distinctive. But the Trademark Office resisted. It’s ruling turned on the fact that Forney’s application did not include any defined package perimeter or shape. According to the Trademark Office, Forney’s application was akin to claiming a trademark in “color alone,” which the Supreme Court has said can never be an inherently distinctive trademark for a product itself.

But the Trademark Office had overlooked a critical distinction, the U.S. Court of Appeals for the Federal Circuit ruled. Fornay’s color mark was applied to packaging –not products themselves. And the Supreme Court precedents had left the door open for color to be inherently distinctive when used on packaging. The Court of Appeals said that “Fornay’s mutli-color product packaging mark . . falls firmly within the category of marks the [Supreme] Court described as potential source identifiers. The Supreme Court precedent simply does not support the [] conclusion that a product packaging mark based on color can never be inherently distinctive.”

The Court of Appeals went further, rejecting the Trademark Office’s conclusion that to be inherently distinctive, multi-color marks for product packaging require a “specific peripheral shape.”

The Appeals Court sent the case back to the Trademark Office with instructions to consider whether Forney’s multi-color mark met the test for inherent distinctiveness. That review likely will focus on whether Forney’s cascading color scheme and palette are “unique or unusual” in Forney’s product category.

The takeaway from the Forney case is this: when it comes to claiming color combinations for product packaging as inherently distinctive trademarks, there are, as the saying goes, “No Borders, No Boundaries.”

The case is In re Forney Industries, Federal Circuit, April 8, 2020.

Quote of the day: ““Mere color, unspoiled by meaning, and unallied with definite form, can speak to the soul in a thousand different ways. ”
― Oscar Wilde

“Persuaded, paraded, inebriated, and down
Still aware of everything life carries on without
‘Cause there’s one too many faces with dollar sign smiles”. Whiskey Bottle, Uncle Tupelo

For decades, parody and trademarks have had a fraught relationship, particularly when it come to the interface between human brands and products for man’s best friend. Back in the 90s, the luxury chocolate maker Godiva sued over a dog treat named Dogiva. And some years later, the luxury clothier and luggage maker Louis Vuitton sued over a brand of dog treats called Chewy Vuitton. Godiva won. Vuitton lost.

Last week, the latest decision in this line of cases came down, finding that a dog toy shaped like the iconic Jack Daniel’s whisky bottle and bearing both the name Bad Spaniels and the scatological slogan “Old No. 2” did not infringe the venerable bourbon’s trademark rights in the Jack Daniel’s name, the square bottle shape, the black and white labeling, and the slogan “Old No. 7.”

The case turned on whether Bad Spaniels name and bottle were a transformative expressive homage to Black Jack and therefore protected by the First Amendment and its stringent expressly misleading standard, or whether it just was plain old trademark use, in which case the lesser likelihood of confusion standard applies.

The judge came down on the side of parody and free expression. Acknowledging that the Bad Spaniels name, motto, and packaging were a far cry from the Mona Lisa, the judge nonetheless concluded that the canine toy maker had produced an expressive work that did not warrant being relegated to the trademark doghouse. The court explained that “[a] work need not be the expressive equal of Anna Karenina or Citizen Kane” to be considered expressive; nor is a work “rendered non-expressive simply because it sold commercially.”

The decision is sure to add to the ongoing debate on whether punsters deserve punishment when they parody a famous brand not through a cartoon or story but by putting out a product with a humorous twist.

So, when happy hour rolls around Fido, Spot, Snoopy, and Scooby Doo can enjoy their own plastic libation as their best friends break out the Jack and Ginger or have their Tennessee sippin’ whiskey nice and neat. And in these days of Work at Home and sheltering-in-place, it’s always five o’clock somewhere.

The case is VIP Prods. LLC v. Jack Daniel’s Properties, Inc., No. 18-16012(9th Cir. Mar. 31, 2020).

Quote of the day: “Basically, I’m for anything that gets you through the night – be it prayer, tranquilizers or a bottle of Jack Daniels.” Frank Sinatra

“Standin’ on the highway with my coffee cup
A-wonderin’ who was gonna pick me up
I had my hopes up high, I never thought that I
Would ever wonder why I ever said good-by
I had my hopes up high” I Had My Hopes Up High music and lyrics by Joe Ely

Joe Ely - Letter to Laredo - Amazon.com Music

The path of a professional musician is rocky and strewn with obstacles. Many struggle to find an audience, to earn a living, to be picked up by a major record label. But even for those who make it, the road is still precarious. One reason is in the devils bargain they had to make to get their first recording contract.

The term “quid pro quo” had gone viral until a real virus took hold of our collective attention. But “quid pro quo” applies to more than just phone calls between heads of state. For most emerging singer/songwriters, the quid pro quo for getting a record deal was this: the record company demanded that the artist assign her copyrights to the label. And that demand came in the form of an offer the artists couldn’t refuse–either assign the copyrights or no deal–a classic case of one party to a deal holding all the cards and having all the leverage.

Congress, back in the day when bipartisanship and legislative compromise weren’t dirty words, recognized the artists’s dilemma and provided a fix. The fix is by no means quick. But is is real and potentially lucrative–in the 1976 revision of the Copyright Act, Congress included a “termination right” to that artists like Joe Ely pictured above, Bruce Springsteen, Tom Petty, and others who had signed-away their copyrights at the start of their recording careers can take back their rights, lock, stock and barrel, after 35 years.

But, as Ringo sang, “it don’t come easy.” Artists must follow strict procedures about the timing and content of their termination notices. And as might be expected, the record companies, having given an artist a “big advance,” (like The Boss gets at the end of Rosalita), aren’t exactly keen to see the valuable copyrights revert to an artist whose career the company launched and helped sustain for decades. And so, some of the current corporate copyright holders have vowed not to give up without a fight and have refused to honor termination requests from Joe Ely and many others.

Mr. Ely, however, along with English musician John Waite, “won’t back down,” as Tom Petty sang. They are lead plaintiffs in a class action lawsuit against UMG, a major music corporation. In the lawsuit, Ely and Waite argue that UMG has not good reason or legal basis for rejecting their termination notices.

UMG, for its part, argues that the musicians never had a termination right because their original recording contracts included language that called the musician’s songs “works for hire.” So technically, UMG argues, artists like Mr. Ely never owned the copyrights in the songs they wrote and recorded while under contract to the recording companies. They further argue that the musicians should have sued over the “work for hire” issue decades ago, within three years of signing their contracts, so that the statute of limitations applies and bars their current claims.

Earlier this week, a federal judge rejected UMG’s theory, writing that denying the artists’ their termination right based on things they did or didn’t do over thirty years ago “at a time during which the artist and recording company may still have disparate levels of bargaining power — would thwart Congress’s intent and eviscerate the right itself.”

So the case continues on to a trial to determine whether Ely and the rest properly exercised their right of termination and can regain control of their copyrights.

The case is: Waite et al. v. UMG Recordings Inc. et al., case number 1:19-cv-01091, in the U.S. District Court for the Southern District of New York.

One of Joe Ely’s Texas Troubadour compatriots, Robert Earl Keen, sings “The Road Goes On Forever and The Party Never Ends.” This case will determine whether a record company’s party–it’s hold on copyrights it insisted on owning decades ago when it had superior bargaining power, will go on forever, or at least until the copyright expires many years in the future. The recent ruling shooting down UMG’s first line of defense leaves Mr. Ely and the other Plaintiffs with “their hopes up high.”

Quote of the day: “What have you done to me? Can’t you remove the spell you have cast over me?” Johannes Brahms

“Take a little tip from me. Stay away from my chicken house.” Stay Away From My Chicken House by Gene Autry

No need to be chicken about copying in poultry feeder case ...

Entering our third week of staying at home, we look for connection from any quarter. Yesterday I found it in the form of a new trademark decision from the Fourth Circuit about chicken feeders. The Court of Appeals affirmed a lower court decision that nixed trademark protection for the shapes and color of the chicken feeder shown above on the left. The plaintiff had claimed that the configuration and red color scheme of its bird feeder had acquired trademark significance through years of commercial success. There was no doubt that the plaintiff’s feeder was popular among poultry raisers. And the defendant’s feeder (on the right) looked like a dead ringer for the plaintiff’s.

So why did the plaintiff’s trademark claim flounder and flail like a, well, the proverbial chicken with its head cut off? The problem for the plaintiff was it’s patents. Yes, product configurations and color schemes can theoretically attain trademark status through long use, large sales, and extensive advertising, especially if the advertising verbally or visually highlights the shape, features, or colors without touting their utility. But even if these measures have worked, even if consumers recognize a product’s shape, features, or colors as source indicators, i.e., trademarks, the law won’t extend trademark protection to features or shapes that are essential to the product’s function or purpose.

And here, the features and red color that the plaintiff claimed as trademarks were also covered by the plaintiff’s utility patents—strong evidence of their functionality. Indeed, the patents showed that the product shape allowed birds to feed more easily while the color red attracted them to their meals. As the court recognized, it is fundamentally unfair for a patent owner to convert the limited patent monopoly for useful features into a perpetual trademark monopoly, thereby depriving rivals of useful features needed to compete effectively.

The case is CTB Inc. v. Hog Slat Inc., case number 18-2107, in the U.S. Court of Appeals for the Fourth Circuit.

So, how does a case about chicken feeders provide meaning and connection in these days of isolation? Well, the first case I worked on as a fledgling trademark lawyer was about a chicken feeder. Early in the litigation, my fellow associate and I drafted up a scathing letter to the other side over some perceived deficiency. We loaded the correspondence with all the invective and indignation we could muster. The recipient happened to be the boyfriend of our mentor, and he worked for the rival firm across the street. He was an excellent lawyer and a wonderful guy, and he used his reply to school us neophytes about civility and effective advocacy, characterizing our screed for its “intemperate tone.” Of course, he cc’d our mentor, his girlfriend. From that day on my colleague and I became known throughout the firm as “The Intemperate Tones.” Good band name, bad nickname for young lawyers or lawyers of any age.

Moral of this post, don’t be so impressed with your own heated rhetoric that you lose sight of the ultimate goal, resolving disputes that counsel should be able to resolve cooperatively and failing that persuading not alienating the judge. Resist the urge to strut like a Rooster, lest you end up like the birds scrambling to feast at these feeders–served up on a plate for a judicial rebuke.

Quote of the Day: “I haven’t checked, but I highly suspect that chickens evolved from an egg-laying ancestor, which would mean that there were, in fact, eggs before there were chickens. Genius.” Ta-Nehisi Coates

“I acquired a weakness over the weekend for a guy with a gold tattoo.” “New Tattoo” music and lyrics by Ana Egge and Maryann Kranis

Norwegian teen tattoos McDonald's receipt on his arm, confirms Big ...

It’s a generational thing, I know, but I just don’t get tattoos. Back in the day, they were associated with grifters, carnies, and drunken sailors. Popeye had one on his forearm. Mighty Mouse did not.

Recently, however, I got an anthropology lesson on tattoos and their cultural significance. I learned that “tattoos have been part of human expression for thousands of years,” and that “modern tattoos reflect the personal expression of the person bearing the tattoo and are intended for that purpose.”

That lesson came not from a book or article, but from expert testimony in a court decision involving the tattoos of none other than LeBron James. The issue was whether the maker of the video game NBA 2K infringed the copyrights in the tattoos of Mr. James and two other NBA stars when the the trio were included as video game figures, in NBA 2K, tattoos and all.

First, some basics. Yes, tattoos are pictorial works subject to copyright. And yes, absent a written agreement between the tattoo artist and the client, the artist owns the tattoo copyright, which gives the artist the right to control when and how the tattoo is reproduced. So in theory, including Mr. James’s likeness with his tattoos could implicate the tattoo artist’s copyright.

In this case, the artist had granted an exclusive license to the copyright to the plaintiff, a company formed primarily to enforce the copyright against the video game company and others who similarly included likenesses of tattooed stars in commercial products such as video games.

The court of law in this case took a very dim view of the plaintiff’s efforts to profit from the tattoos’ presence in a virtual court of basketball. In fact, the judge agreed with all of defenses:

First, U.S. District Judge Laura Taylor Swain ruled that there was no copyright infringement because the tattoos in question were not “substantially similar” to the copyrighted tattoos. The virtual tattoos were a fraction of the actual tattoos in size and were barely visible, appearing only fleetingly on moving figures who themselves were part of a larger group of moving figures in the video game as its being played.

Second, the court ruled that the artists had granted LeBron and the others implied licenses to allow the tattoos to be publicly displayed, including in video games. “The tattooists necessarily granted the players nonexclusive licenses to use the tattoos as part of their likenesses,” Judge Swain wrote. “The players, who were neither requested nor agreed to limit the display or depiction of the images tattooed onto their bodies, had implied licenses to use the tattoos as elements of their likenesses.”

Finally, Judge Swain concluded that including the tattoos in the virtual likenesses of LeBron and others was “fair use.” She concluded the company had made a “transformative use” of the tattoos, noting: “The tattoos were originally created as a means for the players to express themselves through body art,” Judge Swain wrote. “Defendants reproduced the tattoos in the video game in order to most accurately depict the players.”

Judge Swain was also swayed by a survey conducted by Dr. Deborah Jay that showed that consumers do not buy NBA 2K for the tattoos on LeBron James’s likeness.

The full court press of defenses thus produced a blowout win for NBA 2K and a stinging loss for the plaintiff.

As for me, I still may not totally get cultural phenomenon that is the modern tattoo. But guided by the expert testimony in this case about the history and significance of tattoos across the millennia, I can finally accept that my aversion and skepticism were narrow-minded, misguided, and worthy of an OK BOOMER retort.

The case is Solid Oak Sketches LLC v. Visual Concepts LLC et al., case number 1:16-cv-00724, in the U.S. District Court for the Southern District of New York.

QOUTE OF THE DAY: “Show me a man with a tattoo and I’ll show you a man with an interesting past.”
― Jack London

“I’m forever blowing bubbles. Pretty bubbles in the air.” I’m Forever Blowing Bubbles, music by John Kellete, lyrics credited to Jean Kenbrovin

Image result for brizzy hard seltzer

“Hard seltzer” has been one of the brightest product categories in a declining market for alcoholic beverages. As reported by Bloomberg, “Alcohol drinkers are becoming more and more concerned about health and wellness, and are becoming more involved in mindful drinking. Hard seltzers are meeting these consumer needs.”

What is hard seltzer? It’s carbonated water infused with 5% alcohol and flavorings. It has fewer carbs and calories than beer. Hard seltzer drinkers tend to be younger, have higher incomes and skew more female than traditional beer drinkers, according to Bloomberg.

The man generally credited for sparking the hard seltzer craze is Von Mandl, a wine maker from Canada. His company’s WHITE CLAW hard seltzer currently accounts for 55%, with annual sales hovering at $1.6 billion. WHITE CLAW hard seltzer has been such a success that Mandl has been able to devote attention to his first passion, wine making, turning out bottles that sell for upwards of $250.

With such a lucrative and expanding market, it was only a matter of time until hard seltzer bubbled up into a trademark dispute. In a decision handed down yesterday, a Texas federal judge refused to block mega beer-maker Molson-Coors from selling its new VIZZY brand hard seltzer, scheduled to hit the market this month. The suit was brought by a much smaller hard seltzer company that has been selling the trendy beer alternative under its federally registered BRIZZY trademark.

With the products poised to compete head to head in the growing hard seltzer marketplace, the only real issue for the court to decide was whether Molson-Coor’s new brand VIZZY was too close for comfort to prior mark BRIZZY –stated in legal terms, are BRIZZY and VIZZY so similar that an appreciable number of ordinary consumers are likely to be confused?

In denying BRIZZY’s motion for a preliminary injunction–a temporary ban on VIZZY sales while the case goes ahead to trial–the judge found that “Plaintiff cannot realistically hope that by obtaining a mark based on and characterized dominantly by one word (‘fizzy’), it can prevent competitors from doing the same.” Miller-Coors swayed the judge with evidence of many other trademarks on the market derived from the word “fizzy.” The court was further persuaded that confusion is unlikely because the parties’ cans look noticeably different. Even though the court recognized that “V” and “B” are “easily confused,” it agreed with Molson-Coors that the “logos, font, coloring, cans, and packaging could not be more different.”

Law 360 reported today that the plaintiff intends to move forward with the case and is seeking a permanent injunction and unspecified damages.

The case is Future Proof Brands LLC v. Molson Coors Beverage Co. and MillerCoors, case number 1:20-cv-00144, in the U.S. District Court for the Western District of Texas.

Stay tuned to see whether this case will yet lead to a substantial verdict in favor of the David against an industry Goliath or whether BRIZZY will again fall flat. Until then, stay thirsty for trademarks, my friends. And drink responsibly.

Quote of the day: “The water in a vessel is sparkling; the water in the sea is dark. The small truth has words which are clear; the great truth has great silence.” Rabindranath Tagore

“Everybody’s saying it–music is love.” Music is Love” music and lyrics by David Crosby, from the album “If I Could Only Remember My Name.”

Brown and Black Gramophone

On a grey day, when sheltering in place begins to wear thin, a break from trademark themes seems in order. Trying to find the silver lining behind this dark cloud of Corona Virus may not be easy. But linings of silver are there to be discovered, whether its the chance to work side-by-side with one’s significant other and to discover what exactly it is that they actually do all day, to the opportunity to multi-task as dedicated work-at-homer and day-care provider, or one’s transformation from restaurant patron to intrepid pantry explorer–those dried beans were never going to hop into the Instant Pot themselves.

Among the few changes that have not been unpleasant has been the explosion of live musical performances being posted on social media and You Tube by artists and musicians across the musical spectrum. Neil Young shared an intimate mini concerts from his fireside, filled with gems and rarities. Willie Nelson and friends recast their cancelled Luck Reunion as an online musicthon. And many other artists and venues have followed suit, often tying their impromptu concerts with to a good cause, such as supporting fellow musicians or the dedicated staffs at venues and concert halls.

For the Internet concert curious, here are some lists complied by leading music publications to help you find tunes to ease a troubled mind:





So while music halls from Nashville to New York City remained shuttered, there are still plenty of ways to support live music, even from the couch. Perhaps you’ll make some new discoveries or reconnect with a favorite artist. Just a few years ago, none of this would have been possible. Today, our digital connectivity can help keep us connected with the healing power of music.

No Softrights post would be complete without at least some mention of intellectual property. So since this one concerns music, remember, artists make their living from their copyrights. So respect the artists and respect their creations by being a legit consumer–subscribe to a digital music service, buy CDs and other merchandise, and when Covid is history, buy a concert ticket, go to a festival, and enjoy music the way it was intended to be heard–live.

Quote of the day: “I think that live music is something that the Internet can never kill.” Jim James

“Wise men say only fools rush in.” Can’t Help Falling In Love” music and lyrics by Haley Reinhart

Image result for gold rush

When confronting a global pandemic, it seems like folks would have better things to worry about than dreaming up schemes to monetize the panic part of pandemic. Yet predictably within days of Corona Virus and Covid-19 becoming household words, the US Trademark Office was flooded with applications for phrases such as CLASS OF COVID-19 for sweatshirts, COVID IMMUNE for wristbands, COVID-19 SURVISOR for t-shirts, and COVID KIDS for children’s clothing.

Like most of their COVID brethren, these applications were filed based on the applicant’s professed “bona fide intent to use” the mark in commerce. That’s a fancy legal term that means that the application must be more than a pipe dream, much more in fact. Trademark law demands that aspiring trademark owners be able to back up their aspirations with real commercial evidence, like having a prototype, investing in equipment, or having a strategic plan.

And before the Trademark Office will issue a certificate of registration with the impressive ribbon and official seal, the applicant must submit evidence that it has actually selling good or offering services under its trademark. These can’t be mere token sales to friends and family; they but must be genuine commercial transactions. Otherwise, if the applicant filed first and tried to develop a product or business later or relied on trumped up sales, the resulting registration can be challenged as having been void from the start.

So, many of these Covid trademark hopefuls are likely due for a rude awakening. Not only will the market for their novelty products run its course along with the novel virus, but the money they spent on these trademark applications likely would have been better spent on other things, like toilet paper and hand sanitizer.

Quote of the day: “In the middle of difficulty lies opportunity.” Albert Einstein