Monday, June 20, 2011

Sadly, Trademark Fight Will Not Obtain “Justice for Caylee”

About a month ago, I was reading an article about the difficulties a Florida court was having in selecting a jury for the trial of Casey Anthony (a woman charged with the murder of her young daughter). This is a subject that fascinates me—not the alleged murder, but the difficulty of identifying a sufficient number of people who have not already been tainted by the media to serve for an indeterminate time in potential sequestration without suffering substantial business and personal hardships. The article did not say much about the specific reasons that they were having trouble selecting jurors, but noted that during the lengthy selection process, significant public attention focused on the upcoming trial.

The article ended with a note that the grandparents of the murdered child were seeking “to obtain trademarks” for their granddaughter’s name and the phrase “Justice for Caylee” in order to prevent others from selling merchandise using her name and likeness. The grandparents’ attorney was also sending a demand letter, “the first step in filing a claim for libel,” to an online retailer that was marketing such products.

This sounded like a strange (and even nonsensical) approach to trying to protect what I would consider a right of privacy or publicity—the right of an individual or the individual’s heirs to control the use (or non-use) of one’s name and likeness for commercial purposes. Laws on this subject vary from state to state, but more than likely, the attorney could have found some applicable law for such a claim against those who were using Caylee Anthony’s name and likeness for the sale of t-shirts and buttons. Or maybe they have a copyright claim if the pictures of Caylee used by these third parties came from family photos (which they most likely did).

Instead, the attorney’s advice was for the grandparents to “obtain trademarks.” Trademark rights are based on use. Yes, the grandparents could apply for registration of a trademark before it is used, but in order to complete the registration, or enforce any statutory or common law rights, they are going to have to establish use—as a trademark.

The records of the United States Patent and Trademark Office show that on May 17, 2011, applications were filed to register CAYLEE ANTHONY and JUSTICE FOR CAYLEE for use in connection with t-shirts, stickers, underwear, and buttons. The applications were filed on an intent-to-use basis, meaning that the grandparents do not claim any current trademark use in connection with such products. The applications have not yet been assigned to an examiner, but if precedence means anything, the applications should be rejected as the proposed use does not support use as a trademark. It is generally held that material that merely decorates a t-shirt, button, sticker, mug, etc., does not establish use as a trademark. The trademark is the name on the label—the brand of the product. For decorative material to qualify as a trademark, the marks must first operate as a brand.

Sadly for these people, who have endured the loss of a granddaughter, they are not going to stop others from exploiting her based on a claim of trademark infringement. At least not based on their current use/non-use or the pending applications for registration. Even if it were a good legal theory, the applications were filed not in the name of the grandparents, but Lippman Law Offices, P.A., the attorneys for the grandparents. An application must be filed by the owner of the mark, or in the case of an intent-to-use application, by the person who is entitled to use the mark in commerce. If an applicant is not the owner, or entitled to use the mark at the time of filing, the application is void and cannot be amended to name the correct party, as the applicant has no rights to transfer for various reasons under trademark law. Even if the attorneys filed in their own name with the best of intentions, these applications for trademark registration are not going to give the grandparents any rights to obtain justice for Caylee.

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