My very good friend and former colleague Eric Goldman has recently posted a link to trademark filings and merchandising related to President-Elect Barak Obama. As you will see, the various logos (as the one in the picture) are certainly cute and/or funny, as often it happens in trademark cases. Yet, these trademarks can open several questions as to the legitimacy of using the President-Elect’s name and image without his (explicit or implicit) consent.  What are the limits of these uses?  Should these uses be allowed?  Are they in any way offensive?  Can a third party prevent others from using the President-Elect’s name and image on competing goods or services?  Where is the line here between free speech and commercial use?  These issues (much simplified here), and similar ones based on many similar cases, will be, in part, the subject matter of my Trademark Seminar next semester. It will be, as is always the case with this course, a lot of fun!

I am currently in Italy combining work commitments and holidays with my family. As part of my (modest because of what is called here “the American Crisis”) holiday shopping, I have decided to opt for useful gifts for my children: so books and DVDs in Italian — fundamental items for little children growing in a bilingual environment (and for anyone who wants to learn a foreign language well). Books: no problem (apart, of course, from making sure to avoid too much weight for the plane). The problems start, however, with DVDs. And here is why.

The world of DVDs and DVD players is divided into six different zones or regions, i.e. DVDs from one zone only play on certain DVDs players, also sold in the same zone, and not in the other zones (so, DVDs bought in the U.S. do not work on common DVD players in Europe). The reason for these differences (that do not apply, on the other side, to music CDs) has traditionally been control. Motion picture studios (primarily in the U.S.) wanted to control the release of movies around the world since movies were released on DVD at different times (later in Europe or Japan, for example). In order to prevent the (uncontrolled) flow (i.e., parallel imports) of DVDs from one region to another (where a certain movie, for example, was still playing in theaters), these different regions with different technical standards were created. Thus, because of different technical standards on DVD disks, users could not use DVD products freely around the world.

Much has changed, however, since the advent of DVD regions in the DVD world.

To anyone who knows IP law, the title of this post looks like either ignorance or craziness. I assure you, it’s not ignorance. Everyone knows that one of the distinguishing features between copyrights and patents is that patents require novelty and nonobviousness, and copyrights don’t. All you need to get a copyright is to have an “original” work of authorship — and “originality” is an extremely low threshold. It doesn’t require that the content be new, and it certainly doesn’t require that it be nonobvious; it only requires that it be yours (that is, “original” to you).

That’s the theory, but I don’t think that’s the practice. I was struck by this thought (ow!) over the weekend as I was reading materials on substantial similarity and the idea-expression distinction. (Perhaps this thought occurs to all copyright lawyers at some point; maybe it’s just my week.) There are certain famous passages that get intoned by copyright scholars and practitioners to explain such concepts, a bit like the missal in a Catholic mass. Originality is sometimes explained with this reading from the book of Learned Hand: