The Creation of the Nike Swoosh Logo

For all of you startups out there, and for those of you who do not have time to take an MBA class in creating a fantastic business brand or corporate logo, here is an excellent article that describes the creation of the Nike Swoosh.

Joyeux Noel

Merry Christmas from Portland.

Joyeux Noël de Portland.

Feliz Navidad de Portland.

Frohe Weihnachten von Portland.

Feliz Natal de Portland.

Nollaig Shona ó Portland.

Sretan Božić od Portlanda.

Buon Natale da Portland.

С Рождеством Христовым от Портленда.

God jul från Portland.

Vrolijke Kerstmis van Portland.

聖誕快樂從波特蘭

Christmas Truce of 1914

One hundred years ago today, the British and German soldiers along the Western Front in France put down their guns and sang Christmas carols to one another. Pope Benedict XV in early December 1914 suggested to the nations fighting the Great War that a truce should exist over Christmas. The warring countries refused, but their soldiers didn't.

The scene along the Western Front is described in History.com:

At the first light of dawn on Christmas Day, some German soldiers emerged from their trenches and approached the Allied lines across no-man’s-land, calling out “Merry Christmas” in their enemies’ native tongues. At first, the Allied soldiers feared it was a trick, but seeing the Germans unarmed they climbed out of their trenches and shook hands with the enemy soldiers. The men exchanged presents of cigarettes and plum puddings and sang carols and songs. There was even a documented case of soldiers from opposing sides playing a good-natured game of soccer.

Merry Christmas from Portland.

Public Domain Christmas Carols

Ah, Christmas carols, wafting through the shopping mall.

Most people do not consider the copyright implications of Christmas carols.They are concerned more with last minute gifts.

But many popular Christmas carols are covered by copyright protection. Singing these songs at home in front of a small gathering does not violate the public performance right in copyright. But for those of us who are more adventuresome and desire to stretch our tonsils in public, there is a list of well-known public domain Christmas carols published at the Public Domain Information Project.

And here is a list of other well known Christmas songs still under copyright protection.

We wish you a Merry Christmas ...

Merry Christmas Johnny Marks

Christmas music has been dominating local radio play since Thanksgiving. For five weeks every year, many old – and some newer – seasonal standards are played over, and over, and over on local radio stations, cable and Internet music services and at local music shops. And we have Johnny Marks to thank for much of this.

Johnny Marks may be Mr. Santa Claus to the recording industry. He is responsible for composing some of the most well-known and beloved holiday music, including: Rudolph, the Red-Nosed Reindeer; Run, Rudolph Run; Rockin’Around the Christmas Tree; A Holly Jolly Christmas; Silver and Gold; Happy New Year Darling, and many, many more. Marks is a member of the Songwriters Hall of Fame, and a complete listing of his song catalog appears on the SHF website.

Marks passed away in 1985, but his estate continues to profit from the five week bonanza of air play for his songs. And by far, his single most famous and most profitable song is Rudolph the Red-Nosed Reindeer. Numerous singers have recorded versions of Rudolph, including Gene Autry, Bing Crosby, Dean Martin, Ray Conniff, Alvin and the Chipmunks, Paul Anka, Burl Ives, The Temptations, The Jackson Five, Ray Charles, Dolly Parton, Ringo Starr, Lynyrd Skynyrd, Destiny's Child, Barry Manilow, DMX and more. A1980 article in People Magazine states that Marks earned over $800,000 in annual music royalties at that time, with 75% attributed to Rudolph.

Merry Christmas, Mr. Santa to the record business -- Johnny Marks.

Lies, Damn Lies and Trademark Lies

Some people lie. Shocking.

Some trademark applicants lie on their official government forms. Doubly shocking.

Trademark owners are required to establish use of their trademark on the goods or services indicated in their trademark filings. Proof of use of the trademark requires both a declaration confirming use in commerce plus an appropriate specimen for at least one of the designated goods or services in each class. These filings are signed pursuant to an official declaration or oath.

But during a two year period, from July 2012 to mid-October 2014, the federal trademark office conducted a pilot study to determine compliance with the use requirement. What the PTO learned is not pretty -- in about one-half of the registrations the trademark owners were not able to verify claimed use.

The PTO selected 500 registrations for this study. In about 16% of the selected registrations, the trademark owner failed to prove use of the mark on the indicated goods or services. The PTO cancelled these registrations. And in about 35% of the selected registrations, the trademark owner was not able to prove use on at least some of the listed goods or services, causing the PTO to delete the unsupported goods or services from the registrations.

The PTO reached this sorry conclusion: "of the 500 registrations selected for the pilot, to date a total of 253 registrations, or 51%, were unable to verify the previously claimed use in their Section 8 or 71 Declarations." The statistics for the falsely claimed trademark use are provided by the PTO:

Deletions/Cancellations/Acceptances to Date by Basis for Registration

Basis for Registration	Percentage of Registrations Selected for the Pilot Deleting Goods/Services Queried Under the Pilot	Percentage of Registrations Selected for the Pilot Receiving Notices of Cancellation	Percentage of Registrations Selected for the Pilot Receiving Notices of Acceptance (Including for a Narrowed Scope of Goods/Services)
Section 1(a)	27%	18%	80%
Section 44(e)	58%	7%	89%
Section 66(a)	59%	14%	82%
Combined Section 1(a) and 44(e)	63%	13%	81%

The concern here goes beyond the false statements contained in government filings. That is, of course, bad in and of itself for both legal and moral reasons. But the concern here, too, relates to the misuse of government filings to obtain a trademark monopoly grant, thereby depriving a genuine user of the right to register the same or similar trademark on similar goods or services.

We may all be aware of genuine trademark users who were unable to register their marks because someone obtained an active registration when, in fact, the registrant was NOT using the mark on its indicated goods or services.

The federal trademark office has established an e-mail address for public comments and suggestions for potential solutions to this problem: TMPolicy@uspto.gov. 

Trademark Office Reduces Filing Fees

If you can wait three weeks to file that new trademark application, you can save some money. Effective Saturday, January 17, 2015, the U.S. trademark office is reducing some of its fees.

The fee for a new electronic trademark application filed on and after January 17, 2015 is reduced $50, provided that the applicant agrees to e-mail communication and agrees to file documents electronically during the prosecution period.

So, a TEAS fee will reduce from $325 to $275 per class, and a TEAS Plus fee will reduce from $275 to $225 per class. There is no reduction in the fee for a new paper application. This remains at $375 per class.

The registration renewal fee will also reduce by $100 for electronic renewals through TEAS, from $400 per class to $300 per class.

More information about the reduced fees is available in the Federal Register notice.

The Copyright Act's Limit on Post-Mortem Author Rights

A window or widower of a copyright author has certain rights available under the Copyright Act, but these rights may be cutoff depending on which State the copyright author was domiciled in at the time of death. The present Copyright Act, in Section 101, defines an author's widow or widower as the "surviving spouse under the law of the author's domicile at the time of his or her death."

One problem here relates to same-sex married couples. An author's widow or widower does not include a same-sex married spouse if the State in which the author is domiciled at death fails to recognize same-sex marriage.

Of import, the Copyright Act, in Sections 203 and 304, grants the author's widow or widower the termination interest of a deceased author. Since the Copyright Act preempts conflicting common law and State law, Section 301(a), this restricted definition of widow or widower is a big deal.

Legislation was recently introduced in Congress to resolve this issue. Pending bills in the House and Senate would include same-sex spouses in the definition of widow and widower. The pending revision to the Copyright Act would provide that:

An individual is the widow or widower of an author if the courts of the State in which the individual and the author were married (or, if the individual and the author were not married in any State but were validly married in another jurisdiction, the courts of any State) would find that the individual and the author were validly married at the time of the author’s death, whether or not the spouse has later remarried.

It does not appear likely that the pending bills will become enacted in the current lame duck Congress, and it is presently unclear how the makeup of the new Congress in January will impact this issue.