The FTC has ordered Sunmark to pull its matchmaking advertising campaign because the ad misleads consumers into thinking that the company has a higher marriage rate than it can prove. The ads amounted to false advertising, under Section 5 of the FTC Act.

Sunmark, which operates a matchmaking service, ran advertisements in national magazines in which it claimed that it was responsible for the marriages of 3,478 of its members. In fact, only about 950 of its members actually married other members; 1600 members were married to third parties not related to the site. Another 800 members included in the count were dating, but had not actually married. The ads, which ran in magazines for 2 months, suggested that Sunmark’s matchmaking rate was 8%, when in fact it was only 4.7%.

Practice Note: To rectify the blunder, Sunmark could have placed a disclaimer in its advertisement, noting that of the 2,550 actual marriages, only 950 marriages were member-to-member. Simply stating that “some” marriages were not member-to-member, however, would have been insufficient. Indeed, the FTC cited another matchmaking company for failing to provide the actual number of non-member marriages, even though it placed a disclaimer in its ad.

Just when we were getting comfortable with sorting out the multiple layers of ownership and contribution in the faux Open Source world, the South San Francisco Democrat, Gene Mullin has decided that California needs a state “Office of Intellectual Property”. This new office would act as the broker and auditor of state funded research that leads to patents, copyrights, trade secrets and trademarks.

Bill 2721 specifically does not apply to any of the Stem Cell Research, but would apply to research in agriculture, geothermal resources, breast cancer and other areas. It does not address who would own what when the project is funded by federal or other state’s monies as well.

As one whose grandfather was one of the horticultural genius’s of his age, the idea that plant hybrids are patentable is still a new idea. The idea that a state experimental station researcher’s efforts are now even more complicated in ownership is an even more startling idea. If you haven’t read Michael Pollen’s book “The Omnivores’ Dilemma” you will enjoy reading how he thinks the intellectual property ownership of agriculture should be handled: agribusiness or artisan.

Dorley Kindersley was getting ready to publish a cultural history of the Grateful Dead illustrated with over 2,000 images. Seven images of concert posters were thought to be the perfect chapter heading.

Dorling Kindersley approached the Bill Graham Archives to use the posters; and permission was refused.

Notwithstanding that ‘not only ‘no’, but ‘hell no” answer, Dorley Kindersley made use of the seven same concert images for which it had asked permission, but made use in a different place in the book; a different size; and a different role.

The Second Circuit Court of Appeals in Bill Graham Archives v. Dorling Kindersley (05-2514) ruled on Monday that the Dorling Kindersley’s use of the posters qualified under the Fair Use Defense. The court held:

“This conclusion is strengthened by the manner in which DK displayed the images.” First because the use was substantially smaller than that for which DK had asked; and because the posters graphic was used in the chronological time line which conveyed the historical significance of the graphic art of the posters.

“Overall, DK’s layout ensure that the images at issue were employed only to enrich the presentation of a cultural history of the Grateful Dean, not to exploit copyrighted artwork for commercial gain”.

If you haven’t got a copy of today’s New York Times magazine in which the cover article is

“WHAT WILL HAPPEN TO BOOKS? Readers take heart! (Publisher, be very, very afraid.) Internet engines will set them free.”

You will want to read it. The author isn’t as informed on copyright law or its history as he is on the mechanics of the Google Library Project, but he makes some good points. Among his more contentious concepts is one in which he would impose a quid pro quo for copyright claimants and authors. He calls it the ‘counterbalance’ that is needed to make copyright more like patents (just what we need, huh?). He echoes the best biggest reason, if there is one, for legitimizing the Google Library Project as “Having searchable works is good for culture.” He proposes that the copying be a new ‘covenant’ and be a precondition to a copyright arising. Kelly would call it a “copyduty” that a copyright creator has an obligation to allow the work to be copied for searching purposes. “No search, no copyright”.

No small ambition does Mr Kelly articulate. Not to mention how such a ‘covenant’ comports with international treaties and laws…..

R.J. Reynolds has agreed to pay $5 million to finally settle a lawsuit brought by the California Attorney general over the company’s practice of giving cigarette’s away at public events. Reduced from the $14.8 million dollar judgment originally awarded, the settlement means the parties avoid a costly appeal.

Federal law prohibits free distribution of cigarettes when it is done in federal buildings, but does not place bans on cigarette distribution in other locations. California health and safety law prohibits the giving of cigarettes on public property and private property open to the general public. Reynold’s lawyers argued that the six instances in which it gave away cigarettes (on pulic property) were not violative of Federal law, which has the exclusive right to regulate tobacco promotions, and that the California law was over-reaching. The California Supreme Court disagreed.

While acknowledging that Federal law regulated tobacco “promotions”, the Court found that Reynolds’ distribution of cigarettes in public places where minor were present, constituted a a health hazard and was therefore subject to state regulation based upon its health and safety laws.

Both state and Federal law contain exceptions to the tobacco give-away provision that do allow distribution of cigarettes in places where minors are not present (such as bars and nightclubs). In the Reynolds case, the company was handing out cigarettes and street fairs and auto shows, at which minors were allowed. Reynolds argued that the cigarettes were being handed out from a tent, that the tent was open only to people 21 years of age or older, and each recipient of the free cigarettes was required to prove (s)he was an existing smoker by producing a pack of cigarettes. Attorney General Bill Locker argued that such precautions were not sufficient to keep cigarettes out of the hands of minors and that, under California law, the entire event had to be off-limits to anyone under 21.

Habeeba’s Dance of the Arts, Ltd. (”Habeeba”), which provides dance instruction and performances under the mark HABEEBA, sued dance instuctor Susan Knoblach and the YWCA for, inter alia, trademark infringement and contributory trademark infringement.

The YWCA rented space to Knoblach so she could teach dance classes, all of which were taught under the mark HABIBA. Prior to filing suit, Habeeba notified both the YWCA and Knoblach of Knoblach’s infringing use of HABIBA, but both parties ignored Habeeba’s request to cease using the mark.

YWCA filed a motion to dismiss the case as to the claim against it of contributory liability. In its defense, the YWCA argued that it merely rented the space to Knoblach and had neither proper notice of the infringement nor sufficient control over her to stop the infringing use. It could, therefore, not be held liable under a contributory theory, it argued. The court disagreed, finding, under the Fonovisa case that after receiving the notice from Haebeeba that contained sufficient information to find that a cause of action existed, the YWCA became “willfully blind” to its tenant’s activities while it collected money from her each time she taught a class.

In its motion, the YWCA also attacked the validity of the mark, claiming that, under the doctrine of foreign equivalents, the mark was descriptive and not entitled to protection. Habeeba means, loosely translated, “loved one” in Arabic. Without making a final determination as to the descriptive nature of the mark, the court dismissed this defense, finding, quite correctly, that the doctrine is not a rule, but a guideline that doesn’t necessarily govern each case and every language. Oh, and one more thing (and this is from your friends at Cobalt): YWCA you may want to look up the meaning of “descritptive” for trademark purposes, or any purpose.

Gregory Colbert, the Canadian film author of “Ashes and Snow”, was watching the Superbowl this year when the frequency of animals in advertising (Clydesdales, monkeys….). Animals seemed the necessary equation to an ad being popular and also represented the closest interaction most people had with animals.

Colbert has called friends far and wide with the result that some are proposing “Animal Copyrights” and some in advertising are agreeing to pay 1% of their media buy to wildlife conservation.

Larry Page, co-founder of Google, is reportedly calling the idea “subversively brilliant”. Colbert promises that advertisers who participate will get an animal rights seal of approval. Here’s hoping that he’s already got the certification mark on file at the PTO and the copyright registration filed for the graphics and manual.