do we think these are bona fide chik-fil-a sandwiches purchased saturday night, stored, & delivered sunday morning? or any other guesses (paid employee with a key will sneak in & make sandwiches sunday?)
i'm enjoying mschf's website, of course, including the graphics, assumption of risk including injury or death (helpful when you're serving day-old chicken w/o a food service license), waiver & release, & indemnifcation agreement.
if chik-fil-a chose to sue, it has precedents for its complaint. restaurants have recently sued delivery sites for TM infringement/unfair competition for using their TMs & offering delivery w/o their permission & delivering food in unrepresentative quality/condition.
MSCHF likes to argue, as it did in the nike/lilnasx #satanshoes case, that whatever it's selling isn't actually sneakers or chicken sandwiches but art or performance art. sunday chik-fil-a as expressive work.
we don't see a lot of (any?) first sale cases involving perishable food goods!
obviously chik-fil-a would argue that waivers aside, if you sell old chicken & call it "chik-fil-a" & someone ends up in the hospital, that's pretty egregiously tarnishing to their brand.
also, ew.
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this is tricky territory for a few reasons (& not just the ones you might think). we're at the intersection of "avoid overpolicing trademark rights in expressive uses" & "use IP law to help small indie artists, often POC, profit off of their creative works."
supermodel & sexual wellness brand co-owner cara delevingne wore a dior power suit (umpire vest? buckle corset?) emblazoned in red with the words "peg the patriarchy" to the met gala, nailing the theme of "in america: a lexicon of fashion,” where millions saw & contemplated it.
nike sues MSCHF over lil nas x "unauthorized satan shoe" for infringement, false designation of origin, & dilution (blurring & tarnishment); allegations of actual confusion backed by social media evidence
(i typed "nike satan" into the bloomberg search bar, so that's fun)
i'll live-tweet the complaint @questauthority-style even though i am supposed to be grading.
right out the gate--in literally the 1st sentence--nike characterizes the shoes as "materially altered to prominently feature a satanic theme."
this is key to rejecting a 1st sale defense, which protects ability to resell genuine branded goods but not "materially altered" ones.
why is hailey bieber calling her new beauty brand RHODES & not BIEBER BEAUTY as originally planned? well for one thing, @uspto found a likelihood of confusion with her husband's JUSTIN BIEBER line. i talked w/ @pagesix:
hailey appended a consent & coexistence agreement to her office action response, which was supposed to indicate justin's consent to her brand name, belief it wouldn't cause confusion, & commitment to address any that arises-- but she forgot to get her husband to sign it. #oops
uspto also deemed "bieber" primarily merely a surname. hailey argued it was rare, wouldn't be perceived as a surname, and...umm, this.
"the 'bieber beauty' mark creates an aura. the mark evokes thoughts of a look, lifestyle, or image: in which mrs. bieber gracefully walks." wut
the decision in the @TheJimCornette v. @StaySickGRAVER trademark & right of publicity lawsuit came out last month and it is a treat. big thanks to @ericgoldman for sending it my way. here's one of the shirts at issue (thread):
g-raver is a deathmatch wrestler; he wrestles others w/ "improvised weapons, e.g. light tubes, barbed wire, thumbtacks, panes of glass, & weed whackers...graver’s signature weapons are tattoo needles."
he did not bring any of those items to court to defend this suit afaik tho.
cornette is a wrestling commentator w/ 2 popular podcasts. the court calls him a "celebrity" w/ a "professional persona."
cases about the wrestling world are always fascinating b/c the parties are not exactly people but not purely fictional characters (see hulk hogan).
a band called lady antebellum recently realized its name was racist & announced it would go by lady A instead. but another artist has performed as lady A for decades. today, the band sued. i'll try to explain the suit & break down some of the trademark issues in this thread.
1st let me say i agree w/ those calling out the band for its faux activism & hypocrisy. @thejournalista, @ira, @matthewacherry, @IWriteAllDay_ , & @yashar all have excellent threads on what's wrong w/ the band effectively silencing a black artist in the name of anti-racism.
i focus on the TM aspect to clarify the legal issues, not to defend the band's actions. in the end, the band may be legally well-situated but morally wrong. & painting themselves as victims is a particularly bad look. (see @pitchfork quotes: YIKES.)