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In an earlier post entitled “J.D. Salinger, The Catcher in the Rye & Intellectual Property Rights”, we discussed a pending case (Salinger v. Colting) in which a U.S. district court granted the estate of J.D. Salinger a preliminary injunction against Swedish author Fredrik Colting, his publishers and distributors concerning the book 60 Years Later: Coming Through the Rye. In a recent decision concerning this case, the Second Circuit Court of Appeals ruled 
that the district court used the wrong standard for granting the preliminary injunction, vacating the order and remanding the case back to the district court.
The court of appeals said that the correct standard for a preliminary injunction in a copyright infringement case is the four-factor test outlined in the Supreme Court decision eBay, Inc. v. MercExchange, L.L.C. The four factors are: (1) the plaintiff suffered an irreparable injury; (2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) the public interest would not be disserved by a permanent injunction.
This ruling is significant, because it may mark the first time in a reported case that the so-called eBay factors are being applied to a preliminary injunction in a copyright infringement dispute. The eBay case involved a permanent injunction in a patent dispute. However, the decision did nothing to immediately change the situation for the defendants. The preliminary injunction (which barred Colting, his publishers and distributors from advertising, publishing or distributing Colting’s book) will stay in place for ten days following the issuance of the mandate. This will give the estate of J.D. Salinger the opportunity to apply for a temporary restraining order pending the rehearing of the motion for a preliminary injunction.
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We were disappointed to see Amarillo’s own Lacey Brown leave American Idol but a Top 12 finish is still an incredible accomplishment! We know this is just the beginning for Lacey. Her talent is going to take her very far!
There is a nice article about Lacey in the April 2010 issue of Accent West.
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A trademark can be anything that serves as a “source identifier,” that is, a device that makes an association in the consumer’s mind between certain goods or services and the source of those goods or services. When a shopper sees a box marked with the word, “CHEERIOS®,” it’s taken for granted that the box will contain O-shaped cereal of a known taste and quality made by General Mills. Likewise, when customers see the golden arches outside a fast food restaurant, they assume that they can walk inside and order a Big Mac®, and that burger will taste the same no matter where the restaurant is located. But words and logos aren’t the only source identifiers; sounds, colors, smells – and artwork – can all serve as trademarks for goods (or service marks for services). Artwork can be protected from unauthorized reproduction through copyright law, but when someone uses another’s artwork to create a false association regarding the source of goods or services, trademark law can protect the owner of the “artwork mark.”
Regina Pizzeria has been serving pizza lovers since its first restaurant opened in Boston’s North End in 1926. Expanding to other locations throughout Massachusetts and New Hampshire, Regina Pizzeria began to be more and more associated with the red T-shaped sign that originally hung in front of the North End restaurant. A painting of the North End street scene around the pizzeria displaying the sign has also been used in Regina Pizzeria marketing materials. As such, that artwork depicting the restaurant and its unique signage has served as a service mark.
But in 2009, another local pizzeria decided to capitalize on the good will Regina had established in its artwork mark. Capone’s Pizzeria and Prohibition Pub, with restaurants 
in nearby Pembroke and Weymouth, Massachusetts, began using artwork on their advertising and take-out menus that is alleged to be confusingly similar to the artwork that Regina used by merely replacing the word “Regina” with the word “Capone’s” on the sign in the picture. On the left is the Regina artwork; on the right is the artwork used by Capone’s:
Regina sent a cease and desist letter to Capone’s on December 7, 2009, and when Capone’s refused to comply, on February 9, 2010, Boston Restaurant Associates, Inc. (the corporate owner of Regina Pizzeria) filed suit against Gambino’s Restaurant, Inc. (the corporate owner of Capone’s) in federal court for infringement of the T-sign and artwork service marks (under both federal statutes and Massachusetts common law) and for unfair and deceptive trade practices (under Massachusetts statute).
From the moment a businessman hangs a sign outside of his establishment or uses other service marks in advertising or trademarks on the goods he sells, the public begins creating an association between the marks and the quality of the goods and services offered inside. Because it can take years to build up a good reputation, that association needs to be protected from others who would misappropriate it for their own benefit.
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Ever since the first Harry Potter novel was released in 1997, readers all over the world have delighted in the fantastic adventures of Harry and his classmates at the Hogwarts School of Witchcraft and Wizadry. But when J.K. Rowling wrote the fourth book in the series, Harry Potter and the Goblet of Fire, was she drawing from her own imagination or from a novel written years before Harry Potter was even conceived? According to the family of Adrian Jacobs, author of the 1987 novel entitled, The Adventures of Willy Wizard No 2: Livid Land, Ms Rowling plagiarized the late Mr. Jacobs.
The estate of Adrian Jacobs (who died in 1997) first sued Rowling’s publisher, Bloomsbury Publishing, in June of 2009, before joining Ms. Rowling as a defendant in February of 2010. The lawsuit, filed in High Court in England, alleges that both novels involve human hostages being held in a bathroom by half-human creatures, as well as boys who are trying to rescue the hostages. Other alleged similarities between the two books include a wizard train and a wizard prison.
Regardless of how similar two literary works may be, an author is not generally considered to be liable for plagiarism if that author’s work was arrived at independently. J.K. Rowling has claimed that she had never even heard of Adrian Jacobs or his novel until the first accusation of plagiarism was made in 2004, some four years after the publication of Harry Potter and the Goblet of Fire.
This is not the first plagiarism lawsuit filed against Rowling. In 1999, American author Nancy Stouffer claimed that her two 1984 works, The Legend of Rah and the Muggles and Larry Potter and His Best Friend Lilly were the basis for the Harry Potter character. Rowling claimed that since only portions of Rah were printed in booklet form in 1986 and were never sold, either in the United States or elsewhere, there is no way that she could have plagiarized Stouffer’s works, especially since she never even visited the United States until 1998, a year after the publication of the first Harry Potter novel. In 2002, Rowling, her publisher, and Warner Brothers (owner of the movie rights to the Harry Potter books) sought and received a declaratory judgment that they had not infringed on Stouffer’s works. It was further ruled that Stouffer had in fact defrauded the Court.
Stories of wizards & witchcraft date back at least as far as the legends of Merlin the Magician, and there are common threads that run through many such stories. Not even a magic spell will help the estate of Adrian Jacobs unless the estate can prove direct copying.
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