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Orange County – On July 10th, 2018, Walmart filed a patent for audio surveillance technology for quality assurance purposes. According to the patent, sound sensors will be used to collect audio data to help improve the customer experience by focusing on the details of shoppers such as how long they stand in line, beeps of the scanners, rustle of bags, and even the conversations they have.

Sam Lester, a consumer privacy lawyer for the Electronic Privacy Information Center in Washington, D.C., says, “This is a very bad idea, if they do decide to implement this technology, the first thing we would want and expect is to know which privacy expectations are in place.” Although, at this time it is unclear how the recorded conversations will be used, how long they will be kept on file and who will have access to them.

According to Walmart’s director of corporate communications Ragan Dickens, the audio would mostly be reviewed by computers and will not be “analyzing the words” it picks up. The patent states that a performance metric might be “based on the content of the conversation” to find if employees are following a specific script or greeting.

Lester is not the only one who thinks that this new surveillance technology is a bad idea. In the past, Walmart has had employees fight the company’s surveillance efforts. Walmart began using intelligence-gathering and monitoring of employee’s activities after the union-backed employees protested inconsistent schedules and low wages.

Along with the employees, customers may unknowingly have their conversations recorded. The surveillance system may be deemed illegal in the 12 states that have two-party consent laws, which does not allow the recording of people without their consent. Walmart operates in all 50 states.

Dickens says, “I can assure you if the concept became a reality, we would comply with state and local laws,” and adds that employees would be notified about the sensors before installation.

Dickens continued to say that Walmart frequently files patents, “but that doesn’t mean the patents will actually be implemented,” and that they are always working on new ideas to improve customer service. The potential cost of the system has not become available as of yet, and Walmart has stated that the patent is only a concept.

The post New Walmart Patent will Monitor and Record Customers and Employees appeared first on California Trademark Attorneys.

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Los Angeles – In August 2016, SportFuel filed a lawsuit against PepsiCo, Inc. subsidiary Gatorade for trademark infringement over Gatorade’s use of the SportFuel trademark in a marketing campaign. Now, two years later Gatorade has prevailed and will be allowed to continue its campaign.

SportFuel provides nutritional products and services to its clients including the Chicago Blackhawks, the Rockford IceHogs, and more from the small town of Western Springs, Illinois. SportFuel was founded in 1993 by Julie Burns who registered the SportFuel trademark with the U.S. Patent and Trademark Office in 2008.

Gatorade created the sports drink industry in 1965 when the University of Florida founded the electrolyte-replacement formula. In 2001, Gatorade made its first launch of sports drinks and in 2004 it trademarked the Gatorade brand.

In 2015, Gatorade launched its new ad campaign “Gatorade The Sports Fuel Company” which gained a lot of attention, including the attention of SportFuel who in turn alleged that Gatorade was fully aware of SportFuel as a company and its SportFuel trademark.

The lawsuit goes on to say that Gatorade intentionally used the SportFuel trademark and requested that Gatorade stop using “Sports Fuel” in its ad campaign. The lawsuit also sought damages and any profits that resulted from the ad campaign in question. This was an important case for Gatorade since so many products had been printed with the “Gatorade The Sports Fuel Company” slogan.

Ultimately, U.S. District Judge Matthew Kennelly ruled in favor of Gatorade and stated that “sports fuel” is a descriptive term and that the evidence that Gatorade had knowledge of and intentionally used SportFuel’s trademark was inadequate to prove that Gatorade had acted in bad faith.

U.S. District Judge Kennelly continued to reason that “a picture is worth a thousand words.” When looking at Gatorade’s slogan, you see the large, bold Gatoade text commonly used by Gatorade along with the G-bolt design which makes the slogan distinguishable from SportFuel’s trademark. This led the court to the determination that consumer confusion is unlikely.

While SportFuel did not comment on the ruling, Katie Montiel Vidaillet, spokeswoman for Gatorade, stated, “We are pleased with the outcome of the case and look forward to continuing our mission to fuel athletic performance,” in an e-mailed statement.

The post Gatorade Wins The SportFuel vs. Sports Fuel Case appeared first on California Trademark Attorneys.

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Los Angeles – In August 2016, SportFuel filed a lawsuit against PepsiCo, Inc. subsidiary Gatorade for trademark infringement over Gatorade’s use of the SportFuel trademark in a marketing campaign. Now, two years later Gatorade has prevailed and will be allowed to continue its campaign.

SportFuel provides nutritional products and services to its clients including the Chicago Blackhawks, the Rockford IceHogs, and more from the small town of Western Springs, Illinois. SportFuel was founded in 1993 by Julie Burns who registered the SportFuel trademark with the U.S. Patent and Trademark Office in 2008.

Gatorade created the sports drink industry in 1965 when the University of Florida founded the electrolyte-replacement formula. In 2001, Gatorade made its first launch of sports drinks and in 2004 it trademarked the Gatorade brand.

In 2015, Gatorade launched its new ad campaign “Gatorade The Sports Fuel Company” which gained a lot of attention, including the attention of SportFuel who in turn alleged that Gatorade was fully aware of SportFuel as a company and its SportFuel trademark.

The lawsuit goes on to say that Gatorade intentionally used the SportFuel trademark and requested that Gatorade stop using “Sports Fuel” in its ad campaign. The lawsuit also sought damages and any profits that resulted from the ad campaign in question. This was an important case for Gatorade since so many products had been printed with the “Gatorade The Sports Fuel Company” slogan.

Ultimately, U.S. District Judge Matthew Kennelly ruled in favor of Gatorade and stated that “sports fuel” is a descriptive term and that the evidence that Gatorade had knowledge of and intentionally used SportFuel’s trademark was inadequate to prove that Gatorade had acted in bad faith.

U.S. District Judge Kennelly continued to reason that “a picture is worth a thousand words.” When looking at Gatorade’s slogan, you see the large, bold Gatoade text commonly used by Gatorade along with the G-bolt design which makes the slogan distinguishable from SportFuel’s trademark. This led the court to the determination that consumer confusion is unlikely.

While SportFuel did not comment on the ruling, Katie Montiel Vidaillet, spokeswoman for Gatorade, stated, “We are pleased with the outcome of the case and look forward to continuing our mission to fuel athletic performance,” in an e-mailed statement.

The post Gatorade Wins The SportFuel vs. Sports Fuel Case appeared first on California Trademark Attorneys.

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San Diego – Sesame Workshop, founder of the children’s show “Sesame Street,” has filed a lawsuit in federal court in New York against STX Productions over use of its trademark in a movie trailer. The offending movie is titled “The Happytime Murders” which is a romp centered around puppets being killed. It stars Melissa McCarthy, Maya Rudolph and Joel McHale.

Sesame Workshop claims that the movie trailer has left the Sesame brand tarnished. The lawsuit continues to say that the movie trailer does not uphold Sesame Workshop’s message and uses the Sesame Street brand without authorization at the end of the trailer when you see the line “No Sesame. All street.”

Sesame Street is a registered trademark of Sesame Workshop, and the organization’s message is “helping kids grow smarter, stronger and kinder.” The lawsuit claims that the recently released movie trailer goes against the core Sesame Street message with violence, drug use, profane language, and puppets engaging in sexual activity. Sesame claims that the trailer leads consumers to believe that Sesame Workshop has endorsed the movie.

Sesame Workshop has now been the victim of social media anger from “appalled viewers” because the viewers mistakenly believe that Sesame Workshop supports the film and has broken their trust. Sesame has put in almost 50 years striving to build and maintain its reputation and trust with the parents of young children everywhere. Now with the adult movie trailer centered around puppets going viral, Sesame’s reputation is in jeopardy of being damaged.

“The Happytime Murders” is scheduled to come to theaters August 17, 2018, and is directed by Brian Henson. The description of the film is “When the puppet cast of an ’80s children’s TV show begins to get murdered one by one, a disgraced LAPD detective-turned-private eye puppet takes on the case.”

STX Productions claim they are “confident” in their legal position. STX collaborated with Jim Henson Company and Henson’s son Brian Henson, American Puppeteer, in the creation of “The Happytime Murders.” The film is the untold stories of the puppeteers lives when the children aren’t around. STX continues to say they were “incredibly pleased” with the success of the trailer and viewer’s reactions although were “disappointed that Sesame Street does not share in the fun.”

Sesame Workshop later said, “We take no issue with the creative freedom of the filmmakers and their right to make and promote this movie, rather this is about how our name is being misused to market a film with which we have no association.” Sesame has reached out to STX Productions to request that the Sesame name be removed from the film but were met with a firm no.

In the trademark infringement lawsuit, Sesame Workshop seeks to have its name permanently removed from the film’s marketing and that the film should stand on its own.

The post Sesame Street Sues Over “No Sesame. All Street” Trademark in Movie Trailer appeared first on California Trademark Attorneys.

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Orange County – Recently a Kosher foods company has applied to trademark the name “Trader Schmo,” which is being opposed by the supermarket chain Trader Joe’s. Part of the reasoning behind the opposition is that Trader Joe’s believes that the phrase “Joe Schmo” is so recognized that Trader Schmo will confuse consumers, especially with both companies selling food.

Trader Joe’s began in 1958 and is based in Monrovia, California. There are 475 Trader Joe’s retail grocery stores in forty one states across the country. Trader Joe’s also uses trademarks similar to its core trademark including TRADER MING’S (Chinese food), TRADER JOSE (Mexican food), TRADER JOE-SAN, (Japanese food), TRADER JACQUE’S (French food), and TRADER GIOTTO’S (Italian food).

Jeffrey Glassover of Naples Florida filed the Trader Schmo trademark on November 29, 2016 on an intent to use basis. The application includes Kosher foods in Classes 029 and 030 including: “Baba Ganoush, compote, frozen, prepared ready-to-eat meals consisting primarily of vegetables; Hummus, jellies, jams, Latkes, frankfurters, cold cuts, prepared food kits composed of meat, Matzo ball soup, chicken soup, Borscht, nut based snack bars, fruit based snack bars, stewed fruits, stuffed cabbage with meat, zimmes, vegetable salads, macaroons, Rugelach, candies, ice cream, diary based spreads, Kasha, Knishes, Kreplach, Kugel, Pierogies, grain based snack bars, and Blintzes.”

The Trader Schmo trademark application received two office actions which requested edits to the description of goods, but then the application was approved by the United States Patent and Trademark Office. The application then published for opposition and on April 27, 2018 Trader Joe’s filed its opposition. The opposition alleges priority of use and a likelihood of consumer confusion.

Apart from whether a likelihood of confusion exists, Trader Schmo may also be liable for dilution. Generally dilution concerns whether the accused mark could harm Trader Joe’s reputation without regard to confusion.

It was only a few years ago when Trader Joe’s had to take legal action to protect itself against a company called Pirate Joe’s, which was a Canada based company that would sneak Trader Joe’s products over the border to Vancouver to sell as their own. Eventually, Pirate Joe’s closed due to legal fees.

The post Trader Joe’s Fights the Trademark Trader Schmo appeared first on California Trademark Attorneys.

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Orange County – Last week the US Supreme Court approved the inter partes review (IPR) process for patents, which many believe helps high-tech companies fight patent infringement lawsuits and “patent trolls” more easily and at a lower cost. The justices ruled 7-2 that the U.S Patent and Trademark Office’s in-house patent review does not violate a defendant’s right under the U.S. Constitution to have a case judged by a jury and federal court.

Justices John Roberts and Neil Gorsuch disagreed with the ruling. The case arose when Oil States International Inc., a Houston based company, disputed the legality of the inter partes review process by which a trial is conducted to review the patentability of one or more claims.

While Silicon Valley is celebrating the ruling, name-brand drug-makers are not as happy with the decision. Companies labeled as “patent trolls” are known for suing other companies over patent infringement instead of making any products. The drug-maker companies are calling the IPR “a threat to innovation.”

Other companies who are celebrating the ruling are popular tech companies, such as Samsung Electronics Co Ltd. and Apple Inc., who are often involved in patent lawsuits. Among the companies who are unhappy with the ruling are AbbVie Inc., Celgene Corp., and Allergan Plc.

The inter partes review procedure was enacted on September 16, 2012 as part of the America Invents Act to manage the rising number of poor patents issued by the U.S Patent and Trademark Office in previous years. The agency’s Patent Trial and Appeal Board has canceled part, if not all, of 80 percent of the patents it has reviewed, including a patent protecting wellhead equipment owned by Oil State.

Although Clarence Thomas has called the IPR process “an extension of the Patent and Trademark Office’s decision to grant a patent,” Oil States challenged the cancelation of its patent by saying the patents are protecting private property and can only be canceled by a federal court.

Thomas continued, “Inter partes review is simply a reconsideration of that grant, and Congress has permissibly reserved the PTO’s authority to conduct that reconsideration.” Paul Fucito, a patent office spokesman, said the office is cautiously contemplating April’s review to determine the impact on rulings before its administrative board runs the reviews.

The Oil State case began in 2012 when its subsidiary sued Greene’s Energy Group, another Houston-based company, for infringing Oil State’s patent related to hydraulic fracturing, or fracking, of oil wells. Greene’s Energy Group had the support of the Trump administration, Intel Corps, and Google in its victory in 2016 by the federal court. Oil State then appealed the decision which made its way to the Supreme Court.

The post Supreme Court Approves Legality of Patent Review Process appeared first on California Trademark Attorneys.

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Los Angeles – LeBron James’ company, Uninterrupted, is being sued by Sebastian Jackson’s company, Adventure Enterprise, for trademark infringement. Jackson claims that Uninterrupted infringed his barbershop theme and “Shop Talk” trademark when creating the show “The Shop.” The Show made its debut during the 2017 NBA season and features LeBron James, Draymond Green, Charles Oakley, 2 Chainz, and others.

The barbershop themed shows both include guest speakers who talk about past experiences and success stories as they get their hair cut. Jackson trademarked the “Shop Talk” concept in 2016, listing it as an “organization of events for cultural purposes.” Jackson claims that for two years he and Cree Nix, an employee of Uninterrupted, engaged in many conversations via text message and e-mail about the concept behind the show.

After the first episode of LeBron James’ show aired, Jackson immediately tried to get in contact with associates of Uninterrupted. Jackson alleges that upon speaking with Rodney James from the company, Jackson was told the episode was a “one-time thing” and claims Rodney even showed regret. Since then, another two episodes of the “The Shop” have aired, the second in March. This is what urged Jackson to continue to defend the trademark.

In August of 2017, Jackson sent a cease-and-desist letter to the Uninterrupted with no answer. Ironically, very recently Uninterrupted sent a cease and desist letter about copyright and trademark infringement to the University of Alabama over another web series titled “Shop Talk” that is barbershop themed. The University of Alabama show features Nick Saban, Alabama’s football coach, and Julio Jones. In response the school has changed the name of the show to “Bama Cuts” but continues to release episodes. Nick Saban himself announced that the show will go on and that he doesn’t consider it to be a copyright infringement.

Jackson’s company is suing Uninterrupted for an injunction to stop production, damages for the trademark infringement, and the show’s profits. Although Jackson owns a registered trademark, he may have to at least partly rely on his common law rights to “Shop Talk” because the services listed in the application do not exactly cover the services of the alleged infringement.

The post LeBron James’ Company Sued for Trademark Infringement appeared first on California Trademark Attorneys.

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Orange County – On March 27th, 2018, the Believeland website filed a trademark complaint against Cleveland’s Believeland Beer Festival for unauthorized use of the “Believeland” name. Believeland is a sports website that reports on sports news and sells apparel since 2008. The website owns three trademarks for the term “Believeland,” including for entertainment services and merchandise such as apparel and cups. Believeland originates from the Cleveland Browns football team.

Believeland Beer Festival was founded by Nathan Barnhart and Elaine Lau who have also planned events like the Rocky Run. By day, the married couple runs a business called Run Mfg, which organizing races such as the Cleveland Browns 5K race and more. Both are avid sports fans and Ohio natives. The sports themed event was planned for April 28th at a convention center in Cleveland.

The Believeland Beer Festival is based on Kansas City’s Boulevardia festival and would include a costume contest, a best pretzel necklace contest, two tasting sessions with more than 150 beers and 60 breweries, and former Cleveland Brown running back Earnest Byner as grand marshal. Barnhart says, “We want to bring something like this to Cleveland.” The Believeland Beer Festival has a polka fight song and describes the event as a magical place where anything is possible if you just believe.

The tickets for the Believeland Beer Festival ranged from $40 to $75 and included bonuses such as drink tickets, t-shirts, foam fingers, custom beer koozie, bottle opening keychains, superfan stickers, beer glasses, and other merchandise all sporting the “Believeland” name. The beer festival is also selling designated driver tickets for $20 and includes the foam finger.

Barnhart applied for trademarks with the U.S. Patent and Trademark Office for “Believeland Beer Festival,” “Believeland Beer,” and “Believeland Music Festival.” Although “Believeland Beer” is the only application that has not been denied and is still active.

In 2016, Believeland the website sent Barnhart a cease and desist letter saying that using “Believeland” would constitute trademark infringement and requested that he stop using the term “Believeland.” Supposedly, Barnhart has refused. Believeland is requesting that the term be removed from the festival and is suing for damages.

The post Believeland Files Trademark Complaint Against Believeland Beer Festival appeared first on California Trademark Attorneys.

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San Diego – The University of Maryland Baltimore County (UMBC) Retrievers, a No. 16 seed, had a win no one saw coming during March Madness in Charlotte, NC. The Retrievers played the Virginia Cavaliers, a Number 1 seed, and took the nation by surprise when they won the game in convincing fashion, 74-54. This marked the first time in the history of the NCAA men’s basketball tournament that a Number 16 seed defeated a No. 1 seed.

Throughout the game, Jairus Lyles led the team to the win, as the whole team was energized from his confidence, which only seemed to shake Virginia more. The game really took a turn when Lyles made a three-pointer with 14:57 left on the clock which put the Retrievers up by 14 points. Although Virginia had plenty of time to make their come back, they did not appear confident that they could win the game.

UMBC was not ready for such a big triumph in many ways. With all of the attention that the win created for the program, the leadership of the school quickly made a decision to file several trademark applications with the United States Patent and Trademark Office including for “UMBC Retrievers” which had never been done. UMBC Athletic director Tim Hall also quickly approved trademark applications for “Retriever Nation” and “16 over 1.”

“UMBC wanted to make sure that it took the necessary steps to be proactive as its athletics brand became the most talked about topic in the world,” according to Heitner. It was widely reported that the school submitted Class 25 filings for each trademark, meaning the trademarks will cover clothing and footwear. As of this writing however, none of the trademark applications could be confirmed. Typically trademark applications show up with the U.S. Patent and Trademark Office within 3 business days of filing.

Merchandise is quickly being sold from the UMBC bookstore, which had to open over the winning weekend to keep up with demand. On Sunday, the Cinderella story quickly ended as UMBC was defeated by Kansas State which eliminated the Retrievers from the tournament. Regardless of the loss, the players were still enjoying the upset win. Daniel Akin said, “No one can take away the feeling of beating the No. 1 team in the country” and Arkel Lamar added, “I’m still in disbelief.”

The post UMBC Retrievers Seek Trademarks After March Madness Win appeared first on California Trademark Attorneys.

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Los Angeles – On Thursday, March 8th 2018, Nike filed a patent application for golfing glasses that show all types of data while playing. The glasses would allow golfers to track their ball and read putting greens with a heads-up display. Needless to say, if the glasses work as claimed, for golfers they could become as ubiquitous as golfing shoes and a visor.

Along with the patent, Nike filed a diagram illustrating a hi-tech golf ball which would communicate with the glasses. When paired together, the golf ball will send information back to the person wearing the glasses. The glasses have a display on a small screen so the golfer will be able to check the data seamlessly while playing. Some of the information the user will be able to quickly access will be the following:

• Your current score
• Golf ball’s speed and location
• Spin rate
• Carry distance
• Distance to the pin
• Velocity of your last swing
• Fairways hit
• Average putts and holes
• The slope of Greens

The patent suggests the glasses will also have a camera to help track where you are in the course, plan the trajectory of your next shot, display an enhanced image of the golf ball, and, of course, capture and record images of the golfer’s swing and then send the images to a processor for suggestions on improvement. The glasses can also warn the golfer of any hazards such as water and sand traps.

It would seem that the glasses would also be able to collect data about each golf course to allow data about how often a putt was missed and in which direction, which the golfer could factor in on the next putt. The ability to track the terrain of the course would obviously be superior to the golfers view and would help with club selection and suggested angles for the next swing. The technology that makes this possible is called augmented reality technology, which overlays the topography of the land around the golfer’s location.

Though some patents never turn into real products, it seems that there is a high likelihood that the ideas covered in this patent will come to fruition. It is easily to see the potential this technology has to improve a player’s golf game, and how it could quickly turn into an arms race if golfers begin to use the technology on the course.

The post Nike Files Patent for Futuristic Golfing Glasses appeared first on California Trademark Attorneys.

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