Listening to the new “3-1-1″ airport public service announcement, the approved phrasing for the rules of what liquid/gels are allowed through security is:

“Three One One means that you can take as many separate three ounces of liquid/gels that fit in one 1 quart ZIPLOCK bag per person”

The trademark ZIPLOCK is owned and registered throughout the world by SC Johnson as applied to “disposable, re-sealable plastic bags and containers”.

But the government approved verbiage is not that the “3-1-1″ analysis will include any ‘disposable, re-sealable, plastic bags’. It states that 1 quart ZIPLOCK bags are required.

Travelling as much as I have since the liquid/gel airport security issue arose on August 10th of this year, I have not seen any resealable bags, not from SC Johnson, turned away. And there are many such nonZIPLOCK bags which are going through security every minute.

Could SC Johnson make a claim that the government use of the mark ZIPLOCK is causing genericide?

One of the chestnuts of trademark lore is that once a trademark falls into the generic, it can not be redeemed back into the more elevated status of being a trademark. The exception that proves the rule, as the idiom goes, is when the U.S. Government was accused of having caused the mark SINGER to fall into generic, and was then found to be a trademark in the case of Singer Mfg. Co. v. Briley, 207 F. 2d 519, 520-21 (5th Cir. 1953). [Compare Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169 (1896) (holding that “Singer” a generic term for sewing machines) with Singer Mfg. Co. v. Briley, 207 F.2d 519 (5th Cir. 1953) (holding that “by the constant and exclusive use of the name ‘Singer’ in designating sewing machines and other articles manufactured and sold by it and in advertising the same continuously and widely – [plaintiff] recaptured from the public domain the name ‘Singer’. . . [which] has thus become a valid trade-mark . . . and is entitled to protection as such”). If, as this Court recognized in Singer, it is possible to reclaim from the public domain even a mark held generic by the Supreme Court

Why would SC Johnson not claim that the government is emperiling the validity of that valuable mark, ZIPLOCK? And what is the statute of limitations on trademark infringement, anyway?

Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 2006 WL 3182468 (E.D. Va. Nov. 3, 2006)

Pamela Reeder is the founder of Haute Diggity Dog which is dedicated to making fun of our globalized disease of affluenza while making some of her mortgage payment. Her company is self described as a “parody, plush, pet toy company” and the images of her products are depicted below, including “Sniffany & Co,” “Chewnell No. 5″ and “Chewy Vuiton.”

When Louis Vuitton filed a trademark and dilution action in Virginia against the parodist, the court lost no time in ruling in favor of Haute Diggity Dog, saying:

“This dog of a case gave the court a great amount of facts to chew upon and applicable law to sniff out. Nonetheless, having thoroughly gnawed through the record, this Court finds that no material dispute of the fact remain.”

and:

“The name “Chewy Vuiton” is, like “Timmy Holedigger,” an obvious parody of a famous brand name. The fact that the real Vuitton name, marks, and dress are strong and recognizable makes it unlikely that a parody-particularly one involving a pet chew toy and bed–will be confused with the real product.”

Vuitton also claimed copyright infringement. Why not just trademark infringement? Because, in 2002, Vuitton collaborated with Japanese pop artist Takashi Murakami to re-invent Vuitton’s signature gold and brown monogram design. What resulted was a multicolor monogram design and a line of handbags and accessories that inspired a cult-like following. It seems that Murakami filed a copyright application for his design in 2002. On-line Copyright Office records list Vuitton as claimant and the work as “work made for hire.”

The opinion raised the question of ownership of the copyright but concluded that the issue was irrelevant because defendant’s use of the copyrighted work was fair use, specifically a parody.

It is interesting to note that the court analyzed whether “Chewy Vuitton” and the “CL” monogram constituted copyright fair use, even though LOUIS VUITTON and the VL monogram are really trademarks, not copyrights. The issue should have been instead whether defendant’s overall design and arrangement of colors constituted fair use of the Murakami copyrighted design.

The case of MGM v. Grokster continues while everyone has moved on. Streamcast, one of the defendants, in the action was found liable under copyright contributory infringement for the Morpheus software.

Judge Wilson in Los Angeles held “evidence of Streamcast’s unlawful intent is overwhelming” in the way that the Morpheus encouraged users to violate copyright law.

Two other defendants, Grokster and Kazaa, have already settled.

Recently, the Belgian Court of First Instance ordered Google to both cease excerpting snippets of text from French and German-speaking papers; and that Google post the injunction order on the Google website.

Google contintues to scan thousands of news outlets and books and has done so since 2002.

The Belgian court was unmoved by Google’s defense that the snippet copying was intended to drive traffic to the originating news site. Google found the order to post on the Google website the Belgian website “disporportionate and unnecessary”.