Tabberone is pronounced tab ber won |
|
The Tabberone™ Archives These articles concern what we consider major trademark and copyright issues. They are usually reproduced with the original source referenced. Bear in mind, these articles are copyrighted and commercial use without permission of the authors may be considered infringement. The intended use here is educational, commentary and non-commercial. The reason they are reproduced in the Tabberone™ Archives, as opposed to just providing a link, is because links disappear and pages are removed. That presents a messy confirmation process that is annoying to the browser (you) but also presents a credibility issue. We do not claim any rights in these pieces. Do not regard the absence of a copyright statement or © to mean the article is not copyrighted. Some sites do not have a copyright statement. When an article or a comment is posted on the internet by the copyright owner, the owner is seeking a world-wide, 24/7 audience; sometimes for a limited amount of time, sometimes indefinitely. In essence, an internet posting intentionally relinquishes one's copyright for exclusivity because the owner has posted it on the internet to been seen by everyone, everywhere. The Tabberone™ Archives non-commercial duplication of the posting is simply a continuance of the original wishes of the copyright owner. We post these articles for reference, for commentary and for confirmarion of our position. |
Source: http://www.ipcounselors.com/19980713.htm#a3 |
U.S. Intellectual Property and New Media Law Update Volume II, Issue XXVII - Monday, July 13, 1998
A NOT TOO PRECIOUS MOMENT Plaintiff is in the giftware business. Under an exclusive copyright and trademark license Plaintiff markets a line of porcelain bisque figurines under the licensed mark "PRECIOUS MOMENTS." This line is one of the world's largest selling collectible lines of figurines. Without Plaintiffs' consent, Defendants began selling "Precious Moment" figurines to its customers in a different packaging. After each figurine is removed from Plaintiff's original outer carton, the figurine, along with the carton is placed and sold in a clear blister-pack type package that allegedly does not provide adequate protection from damage. Plaintiffs contend that they are unable to control the quality of the figurines as repackaged, displayed and sold by the Defendant and, thus, they claim that such repackaged goods are no longer truly genuine "Precious Moment" figurines. Defendants moved to dismiss on the grounds that the suit is barred by the first sale doctrine, that the necessary use in commerce element is missing and the likelihood of confusion cannot be established as a matter of law. The District Court dismissed with prejudice and here, the Ninth Circuit overturns the dismissal and restores the case to the District Court's docket. Plaintiff's argued that the first sale doctrine is not applicable because of the repackaging notice exception, the potential defect exception and the quality control exception to the first sale doctrine. Under the first, trademark infringement may occur in repackaging if the Defendant fails to disclose that the product repackaging was done by Defendant rather than Plaintiff. The Ninth Circuit agreed. While a repackaging notice wasn't requested in the Complaint, the Circuit Court construed the complaint broadly and reversed the District Court's order of dismissal since it appears from the face of the complaint that some relief could be granted. However, with regard to the quality control exception, the Ninth Circuit found that Plaintiff wished to push it beyond its reasonable limit. This exception involves some defect or potential defect in the product itself and the customer would not be able to readily detect. On the whole, this may be a Pyrrhic victory. © 1997-2004 Epstein Drangel Bazerman & James, LLP |
General Articles | Cease and Desist Letters | Federal Court Cases | FAQs & Whines | Glossary | Hall Of Shame | Contributions
Corporate Lawyers |
Definitions |
Federal Court Cases Alphabetically | by Federal Circuit | by Subject | by Court Quotations |
Federal Statutes Copyright Act 17 U.S.C. 5 | Digital Millenium Copyright Act 17 U.S.C. 12 | Lanham Act 15 U.S.C. 22 |
VeRO (Verified Right's Owner Program) VeRO Commandments | VeRO-Verified Rights Owners Program | Counter Notice Letter Counter Notice (pre-2003) | Counter Notice present | On-Line Survey from 2004 | Articles about VeRO | What To Do If You Are Veroed |
Original material by Karen Dudnikov & Michael Meadors is © 1999-2019 |