LJN Newsletters

Complaint over Oral Agreement for TV-Network Work Is Dismissed
Rulings on Song License Termination and on Assignment Recordation
Suits Proceed over Use of College Athletes' Indicia

The entertainment industry is awash with the exploitation of merchandise products. Experts use different methodologies to prove or disprove allegations of similarities between goods. In a trademark dispute over merchandise apparel sales, the U.S. District Court for the Southern District of New York excluded a plaintiff's expert's report that relied on a "sequential array" survey method to try to show that the defendants' merchandise created a likelihood of consumer confusion.

The Supreme Court's recent Twombly and Iqbal decisions have placed in question the validity of Form 18 by reinterpreting the mandated minimal pleading standards required by Fed. R. Civ. P. 8. An additional question has arisen as to whether the protection afforded by Form 18 is equally applicable to claims of indirect infringement or infringement under the doctrine of equivalents.

The proposed merger between Ticketmaster Entertainment Inc. and Live Nation Inc. won Justice Department approval in January 2010, following a year of negotiations. Steven Sletten of Gibson, Dunn & Crutcher counseled Ticketmaster. In an interview, Sletten stated that he prepared his client to face a tough audience, both at the Justice Department and in the court of public opinion.

MUSIC COPYRIGHTS/INFRINGING 'WORKS'
TRADEMARK INFRINGEMENT/RECORD LABEL NAMES
TV COMPENSATION CLAIMS/FEDERAL PREEMPTION
VIDEOGAME DEVELOPMENT/INJUNCTIVE RELIEF

The U.S. District Court for the Southern District of New York decided that a forum selection clause in a television broadcast agreement applied to a company within which the original signatory broadcaster later was merged.

In Starbucks Corp. v. Wolfe's Borough Coffee, Inc., the Second Circuit rejected the district court's determination — based on pre-TDRA case law — that trademark owners must show "substantial similarity" between the trademarks at issue in order to prevail on a dilution by blurring claim under the TDRA. Citing the language of the TDRA, the appellate court found that the new statute required only "similarity," and that even "minimal similarity" could, in the proper case, suffice to support a claim.

Broadly defined, the right of publicity is a person's right to control the commercial use of his or her identity. It has been over half a century since the term "right of publicity" was first coined by Judge Jerome Frank in 1953. Since that time, courts have been struggling to define the scope of the right of publicity protection, and to resolve the inherent conflicts between the right of publicity and the freedom of expression embodied in the First Amendment.