Tag Archives: trademark

Can the Estate of a Person Who is Deceased Enforce that Person’s Right of Publicity? Originally Published May 22, 2014

Marilyn Monroe passed away in 1962.  Her estate has zealously enforced her trademark and other intellectual property rights against those who would infringe upon it.  However, there are other common law rights that might apply, such as the right of publicity, which would likewise bar someone from using her name and likeness.  The question that was before the Ninth Circuit Federal Court of Appeals in August of 2012 was whether that right of publicity could be applied in Marilyn Monroe’s case.  Archives v. Monroe, 692 F.3d 983 (9th Cir. 2012).

The twist in that case was that the Court had to determine whether Monroe was a resident of New York or California at the time that she passed away. If she had been a resident of New York, she would have no right of publicity since that state does not provide for such a right after death.  If she were a resident of California at the time she passed away, she would have such a right since California amended its law to provide for Monroe’s estate in particular to be able to avail itself of that protection.

The case was decided based upon the legal concept of “judicial estoppel.” Simply put, that principle states that a party cannot take countervailing positions under certain distinct circumstances, such as those presented in this case. Specifically, the Court determined that Monroe did not have such a right since she was a resident of New York at the time that she was deceased. Although she had moved to California and committed suicide there, the estate had taken the position in previous cases that she was a resident of New York.  Therefore under a theory of judicial estoppel, the Court found the estate was not allowed to make a contrary assertion in this later suit just because it was more advantageous.

© 2014 Nissenbaum Law Group, LLC

Does the Federal Government Have Trademark Rights Enforceable by the Pentagon? Originally Published May 29, 2014

Does the federal government have trademark rights, and can those rights be enforced by the military? The answer is yes and yes.

In a recent New York Times article http://www.nytimes.com/2014/05/25/us/as-wars-end-military-gives-its-trademarks-new-vigilance.html?_r=0 it was noted that the Marines have filed trademarks 68 times in the past year “for products like Guadalcanal sweatshirts, meant to evoke the World War II battle against the Japanese, and tip of the spear newsletters, named for the motto of the Marine Corps, First Light Armored Reconnaissance Battalion .”

These sorts of registrations are being driven by the fact that returning veterans are seeking to open businesses using terms that are confusingly similar to trademarks belonging to the military. One of the interesting twists is that just because a veteran is violating a military trademark, that does not mean that the military will automatically refuse to allow them to continue doing so. Sometimes the military will obtain licensing fees in return for allowing the trademarks to be used. In fact, as the article noted “since 2009 the Marines have collected $5.4 million in such fees, and last year their trademark’s office turned over $700,000 to a morale, welfare and recreation fund.”

© 2014 Nissenbaum Law Group, LLC

County Lacks Trademark Protection for its Official Seal- Originally Published Jun 17, 2014

Does a New Jersey county have trademark protection in its official seal? According to a federal judge, the answer is no.

Judge Kevin McNulty recently ruled that the county could not stop a local citizen from using Union County’s seal in a television program in which she was critical of the county. In that case Union County had sought a ruling that she was infringing on the county’s trademark rights. The court determined that she could not win such a claim because the county did not possess such rights.

© 2014 Nissenbaum Law Group, LLC