Out with the old and in with the new.
Our original logo tap))) was submitted to the USPTO as a trademark application. Once moving through several preliminary steps required to obtain a trademark a published announcement is made to a public resource called the Official Gazette; the last step before the application is finally approved and a trademark is granted.
If nobody opposes the application during publication the last step of registration will proceed to the primary register as a trademark allowing registrants to use the ® symbol with their trademark during the course of engaging in commercial trade. Our trademarked logo would have appeared as tap))) ®. Alas that was not to be as an opposer showed up during the last week of publication and everything got very complex and time consuming really fast.
To make a long story short tapABILITIES has negotiated the use of a new logo which will appear as (((tap)))®. We have filed a Post-Publication Amendment with the USPTO to amend from tap))) to (((tap))).
Barring any further objections or other SNAFUs our trademark application will soon proceed to the USPTO primary register and we will be marketing the use of the trademark (((tap)))® upon our products or products we manufacture for our customers that will bear customer logos or other artwork juxtaposed with our trademark.
Per Wikipedia the right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity. Can we avoid being held liable for infringing on one’s rights of publicity? Mr. Edward H. Rosenthal has the following to say on the subject…
The Right of Publicity
Edward H. Rosenthal
Frankfurt Kurnit Klein & Selz, P.C.
488 Madison Avenue New York, New York 10022 (212) 826-5524
Truthful advertising of the content of a publication is protected by the First Amendment, provided that the advertising is a truthful description of the content of the medium. Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790, 40 Cal. Rptr. 2d 639 (6th Dist. 1995) (newspaper’s use of a poster of football star permissible as advertising of its content).
Under state laws, the person used must be a subject presented or discussed in the publication. See, e.g., Lane v. MRA Holdings, supra (“Girls Gone Wild” video); Cohn v. Nat’l Broad. Co., 50 N.Y.2d 885, 430 N.Y.S.2d 265 (1980) (use of Roy Cohn’s name in advertising TV movie about Senator Joseph McCarthy that included Cohn was permissible). In addition, the advertising must be limited to an explanation or illustration of the content of the publication.
Namath v. Sports Illustrated, 48 A.D.2d 487, 371 N.Y.S.2d 10 (1st Dep’t 1975) (Sports Illustrated subscription advertising could use Joe Namath’s picture and name in describing coverage of Namath); see Booth v. Curtis Publ’g Co., 11 N.Y.2d 907, 228 N.Y.S.2d 468 (1962); Stern v. Delphi Internet Services Corp., 165 Misc.2d 21, 626 N.Y.S.2d 694 (N.Y. Sup. Ct. 1995) (use of the subject of chat in advertising of an online chat service is permissible).
However, a medium cannot use any photograph merely because it has appeared in the medium, and it cannot use the people who appear in publication as models or endorsers. See Gritzke v. M.R.A. Holding, LLC, No. 4:01CV495–RH, 2002 WL 32107540 (N.D. Fla. Mar. 15, 2002) (“Girls Gone Wild” video package); Velez v. VV Publ’g Corp., 135 A.D.2d 47, 524 N.Y.S.2d 186 (1st Dep’t 1988) (Village Voice newspaper cover).
If the advertising falsely describes the nature of the publication it may be actionable. Cher v. Forum Int’l, Ltd., 692 F.2d 634 (9th Cir. 1982) (false claims in ad promoting an interview of Cher in a magazine resulted in violation of her publicity rights.
This helper script is very helpful to determine where to use a breakpoint. The source is easy to read and easy to hack further. Enjoy it…