'Reverse passing off' may apply to literary works; the 2d Circuit recently has extended Lanham Act protection to a copyrightable work of art

Article Abstract:

A recent 2d US Circuit Court of Appeals opinion regarding the right of attribution points to the need to extend the Lanham Act to specifically cover such situations. In Waldman Publishing Corp v Landoll Inc, the court used a copyright analysis in a trademark case to determine whether the plaintiff originated the literary adaptations at issue. Because the suit was brought under the trademark law of 'reverse passing off' rather than copyright law, an injunction to block unauthorized reproduction could not issue. Clearly copyright has an unsettled place in Sec 43(a) of the Lanham Act.

Book publishing, Book Publishers, Publishing industry, Derivative works (Copyright)

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Does the Lanham Act apply to color per se? The U.S. Supreme Court will decide whether color alone can be registered as a trademark

Article Abstract:

The US Supreme Court will determine whether color per se can be registered under the Lanham Act as a trademark in Qualitex Co v. Jacobson Products Co. Circuit court decisions have been contradictory, with some refusing protection, some permitting registration and some allowing protection. Any decision to protect a color as a trademark requires that the color be distinctive and have a secondary meaning related to the distinction. Opposing decisions are based on a color-depletion theory that trademarking colors would prevent innovation because all the colors would be taken.

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'Qualitex' ruling erases shades of gray on color; the U.S. Supreme Court's ruling is evolutionary, not revolutionary

Article Abstract:

The US Supreme Court's decision in Qualitex Co v Jacobson Products Co unequivocally affirms that color is capable of being a trademark, a recognition that flows naturally from the nature of modern business and the course of such law since passage of the Lanham Act. The Court held that color is to be treated like any other sort of mark, and specifically recognized that sometimes color can have a functional role and thus would not be a trademark. The decision encourages those with color trademarks to register them and enjoy the related advantages.

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