Trademarks, Copyrights & Business Law

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Fundamental Trademarks

Attorney, bon vivant, and all-around good guy Gene Quinn over at IPWatchdog recently posted a short primer on U.S. trademark law with links to more detailed information that succinctly outlines some of the more salient points for any business owner interested in protecting the most valuable aspect of their brand, the trademark.

Trademarks are a universal phenomenon. Virtually all legal systems around the world recognize some form of identification of the source and quality of goods. Trademarks have been in existence for almost as long as trade itself, with identification symbols that today we would call trademarks dating 4000 years.  In free market economies, trademarks are legally recognized and protected as an inherent feature of the marketplace and of consumer protection.

From an economic point of view, a trademark is just a symbol that allows a purchaser to identify goods or services that have been acceptable in the past and reject goods or services that have failed to live up to the desired standards, which will vary from consumer to consumer.

Trademarks differ from copyrights, which protect original artistic or literary works, and patents, which protect inventions. A trademark primarily protects names, logos or symbols that identify a particular creator of goods or provider of services. More specifically, a trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.  A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. In most instances the term “trademark” is simply used to refer to what the law calls either a trademark or a service mark, so do not be surprised if you see a service mark (an example would be Roto Rooter) simply referred to as a trademark by judges, lawyers and business people.

You do not need to file any document or application to have at least some trademark rights, although it is highly advisable to obtain trademark protection and not rely on the common law approach of simply using a trademark. Still, it is true to say that trademark rights, albeit relatively weak rights, can be established simply based on legitimate use of a trademark alone. Having said this, owning a United States federal trademark registration has significant advantages and really should not be considered optional. Some of the more important advantages of a federal trademark registration include:

  • constructive notice to the public of the registrant’s claim of ownership of the mark;
  • a legal presumption of the registrant’s ownership of the mark and of the registrant’s exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;
  • the use of the U.S registration as a basis to obtain registration in foreign countries; and
  • the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.

You do not need to have a federal trademark in order to bring a federal lawsuit under 15 U.S.C. 1125(a), but having a federally registered trademark makes the case much stronger. Indeed, one of the factors considered by the courts when weighing evidence in a lawsuit based on 1125(a) is whether a federal trademark registration exists. Technically, a trademark lawsuit based on 1125(a) is not truly a trademark infringement lawsuit, but rather one based on the existence of a likelihood of confusion, which is a form of an unfair business practice.  In a trademark infringement lawsuit you are alleging another is using your trademark, which happens but is not as common as someone using something that is quite similar, but not identically the same.  In the case where someone is using a similar but not identical trademark any federal action would be brought pursuant to 1125(a). Thus, even if your claim is not specifically a trademark infringement matter there is significant advantage to having a federally registered trademark.

For the rest of the story, check out What you really should know about trademark law



By David Baker, Esq.

I’m pretty sure I see a cross-marketing opportunity here.

If you spend much time in Texas or the Southwest, then you’re familiar with WhatABurger, a chain of fast food hamburger restaurants based on San Antonio. It’s a popular, well-known, and very successful chain and you’ve probably had your share of burgers, fries and chocolate shakes.


And, if you spend much time at your local comic book store, then you’re familiar with Wonder Woman, the DC superhero who was born an Amazon on an island populated entirely by women and who found her way to the United Stated where she fights for truth, justice, and the American way. You also may have seen her in the recent Batman versus Superman movie and you probably know she’ll be played (again) by actress Gal Gadot in her own movie next summer.

So, what’s the problem?

Well, it seems the new logo for the Wonder Woman movie closely resembles the familiar WhatABurger logo, the “Flying W,” which has been used since 1972 and is a registered trademark of the restaurant chain. Oddly, Wonder Woman’s own trademark, which was registered back in 1985, has always resembled the WhatABurger mark, but no one complained until the new logo was unveiled and someone overseeing the hamburger chain’s mark decided it was time to take action.



It seems doubtful anyone would confuse Wonder Woman movie posters and associated consumer goods (e.g., action figures, comic books, etc.) for Whataburger ads. However, the cause for concern seems to have been sparked by a DC Comics filing with the U.S. Patent and Trademark Office in May seeking registration of the Wonder Woman mark in association with a number of food and beverage products, including fruit and vegetable juices, sports drinks, cookies, breakfast cereal, bubble gum, cake decorations, tea, and even “meat tenderizers for household purposes.”

Even though cheeseburgers and fries were not mentioned in the registration applications, there is obviously a possibility of confusion when it comes to food products. Of course, if litigation were to ensue, one of the parties (either Whataburger or DC Comics) might be barred from using their current logo.


Luckily for purveyors of both comic books and cheeseburgers, it appears the two companies are trying to work things out amicably, perhaps even coming up with a cross-promotion campaign of some sort. But if all else fails, a WhatABurger spokesperson has suggested that a mutually beneficial resolution would allow Wonder Woman to “continue to focus her efforts on keeping planet Earth safe from evil villains while Whataburger continues to make delicious, 100-percent beef burgers.”

This isn’t the first time WhatABurger has had to address concerns about possible trademark infringement.

In 2002, the Texas-based WhatABurger chain sued (and was sued) by a different What-A-Burger chain that has locations in Virginia and the Carolinas called. The only substantive differentiation between the two companies was their respective branding, menu, and the use (or lack) of hyphens.  The two chains had been aware of one other since 1970, but for reasons that were never made clear waited more than 30 years to sue each other for alleged trademark infringement.  However, the trial court found no actionable “likelihood of confusion” and ruled that both chains could continue to use their marks with no changes.  Essentially, the court found that it would be highly unlikely that anyone would be unable to tell the difference between the two hamburger chains.

Why It Matters. As illustrated by the 2002 battle between the two What-A-Burgers, not every instance of consumer confusion leads to a finding of trademark infringement.  Likelihood of Confusion is the legal standard that determines whether or not trademark infringement has occurred and the specific standard itself is defined by a vast body of law and varies jurisdiction by jurisdiction.  The essential ingredient for the likelihood of confusion test is that consumers encountering one trademark are likely to be confused with a different trademark.  Trademark confusion means the incorrect assumption on the part of a hypothetical consumer that the two trademarks belong to the same source.

Of course, actual confusion can be very influential in deciding the outcome of any trademark infringement lawsuit, but it is not a requirement in order to prevail. The likelihood factor means that a court merely must determine that the propensity for confusion is strong enough to warrant prevention of the newcomer’s use of the mark.  Consequently, many trademark infringement lawsuits proceed without a shred of evidence of any actual confusion.

IP LAW 101. What are Trade Secrets?

A trade secret is defined as any valuable business information that is not generally known and is subject to reasonable efforts to preserve confidentiality. Generally speaking, a trade secret will be protected from exploitation by those who either obtain access through improper means, those who obtain the information from one who they know or should have known gained access through improper means, or those who breach a promise to keep the information confidential.


While virtually every business has at least some trade secrets, they are quite fragile because they protect information and resources that are secret, which necessarily means that protection is lost if and when the secret becomes publicly known. For that reason, when other forms of intellectual property protection are available, such as copyright or patent protection, one should carefully consider the wisdom of relying only on trade secret protection.

“It is hard to imagine that any business could ever operate without having protectable trade secrets. The trouble is that most small businesses don’t know what a trade secret is, what trade secrets they have, nor do they know what could be protected as a trade secret.”

It is critical to understand that a trade secret protects any business related information that is valuable because it is secret. Every business has at least some information that could qualify.  One key category of information that can be and should be preserved as trade secret information is your customer list. Would it be valuable to an upstart competitor to obtain your customer list so they could market directly to those who they know already are interested in the products or services they are selling? Of course!

If you must disclose information about a trade secret to a third party, perhaps information relating to an invention, particularly prior to having a patent application pending, you should absolutely use a Confidentiality Agreement.

Similarly, you should make sure your employees sign agreements promising to keep your trade secret business information confidential and not to use it for their own benefit even after they have stopped working for you. This is called a non-compete agreement. State law varies with respect to what you can put into a non-compete agreement, so you should consult an employment lawyer in your state to help you draft the proper language. It will cost you a little up front to do it right, but save you a lot later because if you are making money in business you can be certain others will try and enter your market and frequently those others are former employees.


How much longer will the Washington Redskins be the Washington Redskins?

By David Baker, Esq.

Late last week, the U.S. Supreme Court announced that it will decide whether federal trademark law is unconstitutional because it limits free speech.

This law, known as the Lanham Act, is the same law that was used against the NFL’s Washington Redskins when the team appealed the U.S. Patent and Trademark Office’s decision in 2014 cancelling its trademark registrations. The cancellation was based on a determination that the Redskins’ trademarks were “disparaging” to Native Americans.  However, the upcoming Supreme Court decision will be based on an entirely different case, one involving a Portland, Oregon rock band self-named The Slants.


More specifically, the Court will decide if an appeals court was correct in declaring the Lanham Act to be unconstitutional under the First Amendment because it allows trademarks considered disparaging to be rejected. The Slants’ case and the Redskins case had both been on track to be considered by the justices, but this morning the Court denied the Redskin’s motion to have the two cases heard contemporaneously.  Instead, the Court will only consider issues raised by the band’s effort to register its trademark, a registration that was rejected because the name disparages Asian Americans.

The Slants maintain that they want to register their trademark as a way to take ownership of a term used disparagingly by others against Asian Americans.

Why It Matters. Section 2(a) of the Lanham Act prohibits the registration of trademarks that are of a matter which “may disparage…persons, living or dead, institutions, beliefs, or nationals symbols, or bring them into contempt, or disrepute.” But, how do you know if a particular mark is disparaging?

At the moment, there are two tests to apply when examining whether a mark is disparaging.

  1. Disparaging a Group of People. If the mark disparages a subset of people, such as a racial or religious group, then a reviewing court will have to determine:

(a)        What is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and

(b)        If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group.

  1. Disparaging and Individual or Business. If the mark is potentially disparaging to an individual or commercial entity, then the court will consider whether or not:

(a)        The mark “reasonably would be understood as referring to the plaintiff;” and

(b)        The mark “would be considered offensive or objectionable by reasonable person of ordinary sensibilities.”

Even if a trademark is found to be disparaging, it is important to understand that a trademark owner will only lose the benefits that come with having the mark on the federal register. The owner will not lose the right to use the mark because the owner will still hold common law rights to the trademark which come from use of a mark with goods or services. Regardless of how this case turns out before the Supreme Court, this rule of law will not change.


Effectively, this means that even if the Court rules against them The Slants can still use the trademark “The Slants” and the Redskins can still use their “Redskins” trademarks. They just would not be allowed to register them with the U.S. Patent and Trademark Office.

How far does the long arm of U.S. trademark law reach? At least to Canada

By David Baker, Esq.

Late last month, the U.S. Court of Appeals for the Ninth Circuit determined that U.S. courts have jurisdiction over a trademark lawsuit filed by a U.S. grocery store against a Canadian reseller even though the products at issue were only sold in Canada. The implications of such a decision are significant because it may give U.S. companies the ability to enforce trademark rights against foreign infringers even when those infringers don’t sell their wares within the U.S.

Trader Joe’s operates a popular chain of grocery stores in the U.S. and holds numerous trademarks related to those operations, including the registered trademark “TRADER JOE’S” (USPTO TM Reg. No. 1424176) dating back to 1986. It also sells a broad array of products under its own private label and many of its customers are devoted to them.  But, Trader Joe’s does not currently operate any stores in Canada.  And, to Michael Hallett, this presented an opportunity of sorts.


Mr. Hallett set up his own store north of the border and called it Pirate Joe’s. He also designed the store to resemble familiar elements of the Trader Joe’s chain and even stocked the shelves with products he purchased at Trader Joe’s in Washington State and then transported to the store in Canada. Apparently, Pirate Joe’s was well-received by Canadian, but not by Trader Joe’s itself.

In 2013, Trader Joe’s sued Hallett in the U.S. District Court for the Western District of Washington for trademark infringement and unfair competition under the Lanham Act. Trader Joe’s alleged that Hallett intentionally misled Canadian customers into thinking Pirate Joe’s was an authorized Trader Joe’s retailer by displaying its trademarks and mimicking its trade dress. Not surprisingly, Hallett denied these allegations and claimed that had had informed customers that he was not an authorized Trader Joe’s retailer and the district court agreed to dismiss the case, largely because of a determination that the Lanham Act did not apply to trademark infringement beyond U.S. borders.


But, on appeal, the Ninth Circuit reversed the district court’s findings on the federal trademark claims and held that Hallett’s conduct “could harm the reputation of Trader Joe’s American-held marks.” The appellate court reasoned that a defendant’s activities abroad, even if not substantial or significant, could fall within the purview of the Lanham also found that, under certain circumstances, the Lanham Act applies extraterritorially.  The net effect on Hallett and Trader Joe’s is that the case was remanded back to the district court for further litigation and, eventually, trial.

Why It Matters. The Ninth Circuit’s opinion suggests that infringement abroad, even when the goods at issue are never brought into the U.S., can be the basis for a trademark claim if the infringement otherwise affects a U.S. mark. There are implications for companies doing business internationally that compete with U.S. marks because U.S. mark holders may only need to show the right amount of harm (actual or foreseeable) to broaden their ability to sue foreign companies for trademark infringement.

According to the Ninth Circuit, this is especially true where “(1) the alleged violations create… some effect on American foreign commerce; (2) the effect [is] sufficiently great to present a cognizable injury to the plaintiffs under the Lanham Act; and (3) the interests of and links to American foreign commerce [are] sufficiently strong in relation to those of other nations to justify an assertion of extraterritorial authority.”

Will the Raiders Gamble on Vegas, Baby?

Rumors have been running rampant about the future home of the Oakland Raiders for quite some time, especially while they were still in the running to return to Los Angeles.  But, speculation ahs really stepped up in the last couple of weeks following the team’s registration of various trademarks for the team name and logo combined with the name “Las Vegas.”  The Raiders fans in my office certainly did not receive this news with much joy.  Nevertheless, there does seem to be a certain symmetry to a team like the Raiders (possibly) relocating to the gambling Meccas of the world.


In an article entitled “Oakland Raiders file three trademark applications suggesting potential Las Vegas relocation” published on the  IPWatchdog blog, Steve Brachmann comments on the possibility of a move and what it might mean for the NFL, for Las Vegas, and for trademarks.

In the National Football League, as with other major sports leagues, relocation of a team is a subject that can give owners leverage during negotiations and strike fear into the hearts of diehard fans. This summer saw the relocation of the St. Louis Rams to their former home in the Los Angeles Coliseum, where the franchise played its football games between 1946 and 1979.

It’s likely that the Rams move is simply the first in a series which could dramatically alter the NFL landscape on the West Coast. The San Diego Chargers have opted to remain in their current city but they do have an agreement in place with the Rams to share a new stadium being built in the Inglewood area once it’s complete. The Oakland Raiders were initially rumored to be returning to Los Angeles along with the Rams, but a series of recent trademark application filings at the U.S. Patent and Trademark Office show that Las Vegas is a much more likely destination for the Raiders.

On August 20th, the Oakland Raiders filed three trademark applications with the USPTO for standard character marks on “Las Vegas Raiders,” suggesting the team is very serious about relocating to Las Vegas in the near future. U.S. Trademark Application No. 87145341 would protect the use of Las Vegas Raiders on football helmets, downloadable software and electronic guides related to football, jewelry, trading cards and other souvenir items. U.S. Trademark Application No. 87145339 would protect the use of Las Vegas Raiders for the conducting of professional football games, football fan club services, sports and entertainment information provided via cable or satellite as well as live shows featuring football competitions. U.S. Trademark Application No. 87145331 would protect the use of Las Vegas Raiders on a variety of clothing items, including jerseys, caps, visors, earmuffs, T-shirts, sweaters, gloves and scarves.


For the rest of the story, check out Raiders Invade Vegas?

Europe Takes the Lead on Copyright Reform, Sorta

Yesterday, the European Commission released its legislative proposal for changes to copyright law in the European Union copyright law and has been introduced as a Directive on copyright in the Digital Single Market. The intent of the Directive was to bring European copyright law, last updated in 2001, into line with the prevalent use of the Internet and the explosion of information-based technology.  Many hoped the result might set the standard for changes around the world, including an update of the U.S. Digital Millennium Copyright Act.

However, not everyone is pleased by the Directive. Many have complained, among them Internet users, teachers, startups and even consumers, that the Commission has done little more than further entrench the rights of existing copyright owners under the pretense of overhauling the way copyright law is enforced.

As reported in The Wall Street Journal on Wednesday by Sam Schechner and Stu Woo,

The copyright proposals would grant news publishers new online rights to their articles, making it easier for them to negotiate payment when aggregators like Alphabet Inc.’s Google post snippets of their articles online. Other provisions would oblige online-video sites to automatically comb their catalogs for pirated uploads, and to be transparent to authors and performers about how much profit is made from their works to help them negotiate better licensing deals.

Meanwhile, behemoths like Facebook, Microsoft, and Google have taken a very proactive stance by issuing their own recommendations to the Commission in hopes of influencing key provisions of the Directive. More than 25 tech companies urged the Commission not to pass a law that would require payment to newspapers for the use of news snippets on social media platforms.  They also asked that the Commission not weaken protections against lawsuits based on copyright infringement against hosting platforms like YouTube or Instagram.

On the other side of the debate, record labels have lobbied for YouTube and other hosting services to be required to actively scan uploaded material for potentially infringing material and to report these results to content owners, something that is not currently required under U.,S. copyright law. And consumer advocates complained that strengthening copyright laws and enforcement mechanisms would hurt consumers more than other groups and, ultimately, stifle creativity.


Much of the debate over the Directive has focused on the following provisions,

  • An ancillary copyright that would act as a “link tax” for press publishers to extract fees from search engines for incorporating short snippets of—or even linking to—their content.
  • A copyright exception for education covering digital content that European Union members can ignore if there’s a content licensing option available for the educational materials.
  • A limited exception for text and data mining available only to nonprofit research institutions.
  • A copyright exception for cultural heritage institutions to digitize their collections, but not put them online.
  • A mechanism that would require Internet platforms to proactively monitor user uploaded content in order to identify and remove copyright infringing content.

Why It Matters.  Worldwide copyright law has been the subject of increasing debate in recent years as traditional content sources have shifted their focus to the Internet, a place when infringement is much easier and, many contemn almost inevitable.  It is likely that these latest  proposals will be subject to months or years of debate in the European Union’s parliament and its council of member states before they can be adopted, if they are adopted.  Meanwhile, many are questioning how Great Britain will respond to the Directive given the vote earlier this year to leave the Union.  Much remains to be seen about how copyright law will evolve in Europe and elsewhere..

Stairway to an Appeal, but not to Attorney’s Fees

By David Baker, Esq.

In June, a Los Angeles jury decided that Led Zeppelin’s hit song “Stairway to Heaven” did not infringe the copyright held by Randy Craig Wolfe in the lesser known 1969 Spirit song “Taurus,” but by August the Randy Craig Wolfe Trust (the singer-songwriter is deceased) had filed a notice of appeal.


Shortly after the trial court victory, Led Zeppelin filed a motion for attorney’s fees, seeking almost $800,000 that the group, including guitarist Jimmy Page and vocalist Robert Plant, had spent to defend itself against the copyright infringement lawsuit. Zeppelin’s music publisher, Warner/Chappell Publishing, joined in the motion for legal fees and expert witness costs, which argued that the underlying lawsuit was frivolous, that it was intended to shake down the rock stars for money and that awarding fees and costs to the defendants would deter future meritless copyright claims.


However, Judge R. Gary Klausner didn’t agree. Instead, he ruled that the band’s songwriters, record label and associated companies were not entitled to legal fees and other costs because the copyright lawsuit against them was not frivolous.

In the original case, Michael Skidmore, acting as the trustee for the Wolfe Trust, argued that that Led Zeppelin had stolen the famous opening of “Stairway” from a similar-sounding passage about 45 seconds into “Taurus,” the instrumental from Spirit’s 1968 debut album written by Randy Wolfe, better known by his nickname Randy California. Over the course of the 7-day trial, Led Zeppelin’s lawyers successfully argued that similar sections of the two songs are common musical elements and are not protected under copyright law. And, the jury found that, while Page and Plant did have access to “Taurus” before writing “Stairway,” the songs are not substantially similar, the legal standard required to prove unlawful infringement.


In a prepared statement following the jury’s decision in their favor, Led Zeppelin said, “We are grateful for the jury’s conscientious service and pleased that it has ruled in our favor, putting to rest questions about the origins of ‘Stairway to Heaven’ and confirming what we have known for 45 years. We appreciate our fans’ support, and look forward to putting this legal matter behind us.”

In the formal notice of appeal, Skidmore asserted, “Please take notice that Plaintiff Michael Skidmore, Trustee for the Randy Craig Wolfe Trust, hereby appeals to the United States Court of Appeals for the Ninth Circuit from the final judgment entered on June 23, 2016, as well as any and all interlocutory rulings, decisions, and orders that gave rise to the judgment and are merged therein.” Specific grounds for the appeal will not become apparent until briefing begins.

Now, it will now be up to the Ninth Circuit to decide if there was sufficient error in the lower court proceeding to require a different outcome. However, the odds don’t favor Skidmore.


Why It Matters. The losing party in a decision by a trial court in the federal courts normally is entitled to appeal the decision to a federal court of appeals. Although some cases are decided based on written briefs alone, many cases are selected for an “oral argument” before the court. Oral argument in the court of appeals is a structured discussion between the appellate lawyers and the panel of judges focusing on the legal principles in dispute. Each side is given a short time — usually about 15 minutes — to present arguments to the court.

Most appeals are final. The court of appeals decision usually will be the final word in the case, unless it sends the case back to the trial court for additional proceedings, or the parties ask the U.S. Supreme Court to review the case. In some cases the decision may be reviewed en banc, that is, by a larger group of judges (usually all) of the court of appeals for the circuit.

A party who loses in a federal court of appeals, or in the highest court of a state, may file a petition for a “writ of certiorari,” which is a document asking the Supreme Court to review the case. The Supreme Court, however, does not have to grant review. The Court typically will agree to hear a case only when it involves an unusually important legal principle, or when two or more federal appellate courts have interpreted a law differently. There are also a small number of special circumstances in which the Supreme Court is required by law to hear an appeal.

How accurately did Star Trek predict the future?

Today is the 50th anniversary of the debut of the Star Trek television series on CBS and in honor of the milestone numerous articles have been written about the groundbreaking nature of the series and its importance in setting up the mythos that would pervade several follow-on TV series and a slew of successful movies.  Arguably, the original television series, starring William Shatner as Captain James T. Kirk and Leonard Nimoy as the Vulcan Mr. Spock, did much more in the way it predicted an enlightened approach to race relations, international politics, and, of course, technological advances.  But, just exactly how close did the series (and its progeny) come to predicting the future world that we know as 2016?


Earlier today, Steven Brachmann, writing for the IPWatchdog blog, posted an intriguing article on the subject entitled “50 years of Star Trek inspires innovations in mobile computers, speech recognition and tricorders,”

On September 8th, 1966, the American broadcast network NBC aired the first episode of Star Trek, a science fiction television series conceived by Gene Roddenberry. In the decades which have followed, the original series which only lasted three seasons inspired a growing list of additional series and feature films, making a huge impact on both science fiction and pop culture.

As the 50th anniversary of the first Star Trek episode comes around this September, fans around the world continue to be fascinated by the adventures of the crew of the USS Enterprise and the rest of the Starfleet as they explore space, the final frontier. Early August saw the 15th annual Star Trek Las Vegas convention where stars from the original series and cosplaying fans express their admiration for the show and its futuristic vision of a world where differences are explored and not feared. In Scotland, a free September 10th screening of Star Trek II: The Wrath of Khan will bring many fans to a 600-year old castle in Linlithgow, the Scottish town from which Enterprise crew member Scotty hails. This summer saw the release Star Trek Beyond, the latest addition to the franchise’s canon of movies. In January 2017, Star Trek: Discovery will become the newest TV series in the Star Trek franchise when it becomes available on CBS All Access, so the Star Trek universe will continue to expand in the future.

One of the more interesting aspects of Star Trek is just how much of the show’s science fiction has become technological reality. Earlier this year, we profiled the discovery of spinel, a material which closely resembles the transparent aluminum which played a large role in the 1986 movie Star Trek IV: The Voyage Home. With 50 years of scientific progress haven taken place since the first Star Trek episode aired, many of the technological wonders created for television and movies have either become commonplace or are being seen on the horizon of research and development.

Star Trek PADD Presages the Rise of Mobile Computing

Star Trek: The Next Generation began its seven-year run in 1987, showing the adventures of the USS Enterprise under the direction of Jean-Luc Picard who was portrayed by British actor Patrick Stewart. It was the series which introduced viewers to the Personal Access Display Device (PADD), a handheld computing device used by Starfleet and others. Crew manifests, diagnostic reports and other data could be input through a touch-sensitive screen powered by printed circuit boards and were generally rectangular in shape.

Most people watching The Next Generation or any of the following series in which PADDs were used would very quickly recognize that the devices closely resemble the tablet computers which have been commercialized over the past decade, most notably the iPad developed by consumer tech company Apple Inc. (NASDAQ:AAPL) of Cupertino, CA. Personal digital assistants (PDAs) had already become a popular piece of consumer gadgetry through the 1990s but they lack the touchscreen interfaces which have been realized both by tablet computers as well as smartphones.

Interestingly, budget constraints appear to be a major reason why PADDs incorporated a large touchscreen and mainly utilized software-definable functions. Ars Technica reports that, compared to the Star Trek movies, the television series did not have large art budgets. The use of a large screen without control knobs and on which colored sheets could be displayed as the computer interface was a cheap option for creating a believable mobile computing platform.


The Replicator: An Early Vision of 3D Printing

The Next Generation also introduced Star Trek fans to the replicator, a piece of technology which could produce food for consumption, mechanical parts for repairs and just about any other object imaginable, except for fatal poisons. Replicators used transporter technology which improved upon the performance of food synthesizers from the original series by dematerializing matter to get rid of waste and then rematerializing matter in its requested form.

3D printers may be a step behind replicators in terms of transportation technology but we do live in a world in which programmable printing devices can be sent instructions to create objects from toys to electronic components to food. This February, scientists at Wake Forest University announced that they had created a transplantable organ which was 3D printed. Edible printing filaments are used by the Foodini, developed by Natural Machines of Barcelona, Spain, which connects to cloud-based recipe sites so users can select their dinner.

The waste reductions realized by 3D printing is also having an impact on the manufacturing sector, where the technology is known as additive manufacturing. American automaker Ford Motors (NYSE:F) and Chicago-based Boeing Company (NYSE:BA) were recently announced as partners with 3D printing developer Stratasys (NASDAQ:SSYS) of Eden Prairie, MI, and will incorporate Stratasys’s 3D printing platforms into their manufacturing processes. Global spending on 3D printing tech is expected to reach $26.7 billion in 2019 according to the International Data Corporation.

Real-World Tricorders Provide Handheld Data Analysis Tools

Tricorders, handheld devices which help Starfleet crew members detect atmospheric and biological data in unknown locales, appeared as early as the original Star Trek series in the 1960s. Star Trek tricorders are multipurpose and some versions have been finely tuned to detect diseases in the human body or to aid in starship engineering. Although tricorders may have different purposes, every tricorder achieves three functions: sensing conditions, computing the data and then recording that data.

The first manmade device marketed as a tricorder was the TR-107 Mark 1, a device first released in 1996 by the now-defunct Vital Technologies Corporation. It was capable of measuring electromagnetic fields and offered other components including a clock, a timer, a thermometer and a barometer. Outside of this, there have been some limited developments on the road towards a true functioning tricorder. Late last year, media outlets were reporting on research out of Stanford University which could result in a medical tricorder which can detect tumors within a human body from up to a foot away. Verily, the life sciences arm of tech conglomerate Alphabet Inc. (NASDAQ:GOOGL), has also announced its work on a cancer-detecting tricorder, although development of that project seems to have stalled in recent months.


For the rest of the story, check out 50 years of Star Trek tech



of the series to

Grand Theft Auto – Now with even more Lindsay Lohan! Not.

By David Baker, Esq.

Last week, a New York state appeals court dismissed a lawsuit by actress Lindsay Lohan that sought monetary damages from the producers of the popular video game Grand Theft Auto because, Ms. Lohan claimed, they had used a likeness of her without her permission.

A panel of judges in the Manhattan Appellate Division ruled in favor of Take-Two Interactive Software Inc. on the grounds that “This video game’s unique story, characters, dialogue, and environment, combined with the player’s ability to choose how to proceed in the game, render it a work of fiction and satire.” Further, the video game doesn’t “fall under the statutory definition of ‘advertising’ or ‘trade.’ And, because the judges determined that the game didn’t use her actual “name, portrait or picture” it didn’t violate her right to privacy. As such, the court said the depictions deserved First Amendment protection.

In the lawsuit, Ms. Lohan had argued that Take-Two modeled her physical features, including clothing, shoulder-length blonde hair and voice in the fifth installment of Grand Theft Auto. She had claimed that the game violated her privacy under New York the state civil rights law by “misappropriating” her likenesses, language, attire and life stories for commercial purposes without her permission or compensating her.


GTA, as it is widely known amongst fans, is actually a series of video games that take place in fictionalized American cities where players act as car-stealing criminals and compete to move up within a criminal, Mob-like organization. Lohan had claimed that a character in GTA, Lacey Jonas, looked and dressed just like she had in “Mean Girls,” fled the paparazzi like Lohan and wore a line of accessories like the ones Lohan had promoted just two years before the game was released.

Why It Matters.  Ms. Lohan’s lawsuit against Take-Two was based on a claim that her “right of publicity” had been infringed by the images in the game depicting someone with her likeness and that she had been portrayed without permission or compensation. She sued in New York because the right of publicity is a matter of state law under the New York Civil Rights Law Sections 50 and 51.  [California has a similar law which is codified as California Civil Code Section 3344.]

The right of publicity is the right to control the commercial exploitation of a person’s name, image or persona. Usually, it is associated with celebrities because the name or image of a famous person often is used to sell products or services. The right only extends to commercial exploitation and uses for purposes of news, information, or public interest are not a violation of the right of publicity. However, the right doesn’t just protect celebrities.  Everyone has a right to privacy and, therefore, a right of publicity.

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