Court Sides With Nike And Dismisses Kawhi Leonard's Lawsuit Over 'Klaw' Logo

from the just-sue-it dept

Sometimes you turn out to be wrong. When we initially discussed Kawhi Leonard's lawsuit against Nike over the "Klaw" logo, I'd said I was interested to hear Nike's response. That was because my glance at Leonard's description of the history of the logo, one which he created in rough draft form when he was young to one which Nike used as inspiration for the eventual Nike Kawhi shoe logo, it sure seemed like Nike was being hypocritical. After all, Nike has a reputation for being extremely protective of its own intellectual property rights while being rather cavalier with those of others. As a reminder, Leonard created a logo that makes something of a "K" and "L" outlined via the tracing of his own hand. It sure seemed that if that all wasn't unique enough that Nike shouldn't be trying to trademark a version of the logo from under him, what could be?

Well, a U.S. District Judge in Oregon appears to disagree. And, given some of the side by side comparisons that Nike brought in its response... perhaps he has a point.

U.S. District Judge Michael W. Mosman ruled that the logo Nike designers helped create with Leonard marked an “independent piece of intellectual property’’ that was distinct from the original sketch Leonard initially conceived and shared with Nike.

“It’s not merely a derivative work of the sketch itself,’’ the judge ruled from the bench after an hour of oral argument held by phone as well as multiple briefs filed in the case. "I do find it to be new and significantly different from the design.''

Here is Leonard's rough draft side by side with the Nike logo.

Are they creatively different. Yes, I think that's fair. But the real problem here is that Leonard's entire use of the logo in commerce appears to be his deal with Nike.

Still, it sure feels like this logo, on a Nike shoe or not, is associated in the public's eye as much or more with Kawhi Leonard as Nike. Yeah, there are creative differences in the designs as drawn above. But one sure feels to me to be derivative of the other. And, yet, Leonard's lawyers argued the exact opposite.

One of Leonard’s lawyers, Mitchell C. Stein, urged the judge to view Leonard’s initial sketch and the final logo as "one and the same.''

Leonard isn’t claiming ownership of a derivative work. “We’re claiming ownership of the logo Leonard created,’’ Stein told the court.

"The KL, the No. 2 and the hand as expressed by Mr. Leonard in his sketch and as modified is the protectable element that appears in the Nike Klaw,'' Stein argued.

That... feels like a stretch. And the court apparently thought likewise, having sided with Nike and stating clearly that the two logos were definitely not "one and the same."

As stated on the record, I GRANT the motion with respect to Defendant Nike's ownership of the Claw Design. As a result, and because amendment of the complaint would be futile, I DISMISS Plaintiff's claims with prejudice.

And that should be the end of that. Frankly, I'm, again, a little surprised in this case, because it just... doesn't all feel as cut and dry as the ruling would suggest. Nike had an endorsement contract with Leonard, the clear author of an original logo for which Nike created an a derivative logo... and yet this all ends with Nike getting the all clear? The same as though it had created this logo whole cloth? And to what end? Leonard is no longer a Nike athlete. So Nike gets that logo and he has shoes elsewhere?

Like I said: messy.

Filed Under: kawhi leonard, logo, similarity, trademark
Companies: nike

Dune's New Logo Started Disappearing From Twitter Due To Copyright Claims, But No One Is Quite Sure Why

from the it's-a-logo-people dept

Late last week, Boing Boing reported that after the logo for Denis Villeneuve's upcoming Dune movie that people have been obsessing over for decades (well, the idea of a new Dune movie, not Villeneuve's version in particular), some people posted some photos of the launch event, showing a stage with an image and the logo behind whoever it is on stage. It looked something like this:

People seem very, very opinionated about the logo -- in both good and bad ways. At the very least, it generated a lot of discussion. However, people started to notice that many of the Twitter accounts that posted the image had had it pulled down due to a DMCA takedown. And suddenly a bunch of Twitter accounts were looking like this:

It even got so crazy that one guy tried to recreate the logo from scratch to try to avoid a DMCA:

That said, I can find a bunch of accounts showing the logo now (and a bunch more making parody/memes out of the background image and a similar font). However, what remains unclear is who is actually taking down the logo and under what basis. Many have assumed that it's Legendary Entertainment, which produced the film, and/or Warner Bros., which is handling distribution. Still others have argued that it could be the Australian photographer, Leah Kennedy, whose otherworldly aerial image of sand dunes in Namibia appears to be the basis for the background in the original screenshot shown.

What's even less clear is under what basis there would be to take down such an image. Yes, it's possible that Warner/Legendary had a promotional plan that wasn't set to launch just yet, but that's not a legitimate reason to abuse copyright law to take down what are clearly fair use images of the logo in action. It's also unclear why anyone thinks some crazy whac-a-mole over a logo is ever actually going to work. Copyright is a tool that can, and frequently is, used to take down content, but that doesn't mean that it's supposed to allow such blatant censorship, or that such efforts will ever be particularly effective.

Filed Under: copyright, dmca, dune, logo, takedowns

Kawhi Leonard Accuses Nike Of Trying To Steal His Logo Via Trademark

from the from-downtown dept

As we've stated in previous posts, Nike has a reputation for jealously protecting its intellectual property, while also on occasion acting as though those same rules don't apply to its actions. This isn't terribly uncommon among those that treat IP concerns more severely: IP for me, but not for thee. Still, Nike does have some past examples of its own hypocrisy that are fairly glaring.

But nothing compares to the accusations against the company made by Toronto Raptors star Kawhi Leonard, who claims that Nike basically tried to trademark his logo design out from under him.

Kawhi Leonard has sued Nike, the apparel company with whom he recently ended an endorsement contract, over control of the “Klaw” logo used to identify his branded merchandise. Kawhi says he provided the logo to Nike, and that Nike’s claim to ownership of the logo is based upon an underhanded move to go to the United States Copyright Office and claim “authorship” and “rights and permissions” behind his back.

The lawsuit says that the “Klaw” logo marketed by Nike when they had Kawhi under contract was the product of Kawhi’s imagination, and was refined by Kawhi mostly without Nike’s participation, before he ever signed with the brand.

The lawsuit states that for the period of time in which Leonard was under Nike contract, everyone was in full agreement that the logo was his. Nike sought to alter the logo several times, but Leonard rejected those requests. In 2014, he did allow Nike to use the logo on its Kawhi Leonard merchandise, but only for as long as he was contracted for sponsorship with Nike. The acknowledgement of ownership went so far as Nike declining to pursue legal action against 3rd parties that used the logo, ostensibly at Leonard's request.

It was only in 2018, when Leonard left Nike for a sponsorship deal with New Balance, that he discovered Nike had gone ahead and trademarked his logo in 2017 without his knowledge.

But Nike’s quiet registering of the logo in 2017 eventually came to Kawhi’s attention late in 2018, after Kawhi left Nike to sign with New Balance in November. Apparently Nike executive John Matterazzo sent Kawhi’s people a cease and desist letter the following month, asserting Nike’s ownership of the logo and demanding that it not be used on non-Nike merchandise.

You will remember, this is the logo that the Los Angeles Clippers reportedly looked into buying away from Nike as part of their anticipated courtship of Leonard this summer. The organization was apparently interested in passing along Nike’s ownership share of the logo to Kawhi as a condition of Kawhi jumping to the Clippers in free agency. Marc Stein reported then that Nike, meanwhile, “is intent on rebuffing all approaches and retaining its rights to that logo for as long as it can.”

Nike's response to the lawsuit is going to be fascinating. Hearing the legal retort as to why the company has any trademark rights save what was in Leonard's sponsorship contract ought to be interesting. As is, perhaps, why certain other IP rights to the logo shouldn't apply, given Leonard's claim that he created it, such as copyright. For a superstar like Kawhi Leonard, it seems absurd to think that such a detail in a sponsorship contract wouldn't have been uncovered by his own legal representation prior to filing this lawsuit. It's also beyond weird to have Leonard no longer be a Nike athlete, but to have Nike still utilize his logo that denotes his brand.

All of this is strange, but it's also worth recalling the hypocrisy in all of this. Nike is aggressive, it seems, both in its enforcement of its own IP rights and in allegedly how it violates others'.

Filed Under: contracts, kawhi leondard, logo, ownership, sneakers, trademark
Companies: new balance, nike

Apple Objects To Norway Political Party's Logo Claiming Potential Customer Confusion Over Trademark

from the politics-equals-commerce? dept

Apple has a long and storied history of playing make believe that only it can, in any way, use the image of an apple in any sort of branding. Despite trademark laws around the world generally being built on the notion that branding must be used in commerce, must be in a related industry, and must cause or have the potential to cause confusion in the public, Apple's lawyers have generally demurred on the subtle aspects of these laws. This has led to disputes with small German cafes, with Chinese food manufacturers, and with pharmacies. It can be said without question that such disputes initiated by Apple are specious at best, but it can at least be said in Apple's defense that each of those cases involve a foe that was a private, commercial business.

Such is not the case when it comes to Apple's recent trademark opposition of the logo of a political party in Norway.

Bryn Aarflot, a Norway-based patent and intellectual property prosecution firm representing Apple in the matter, formally objected to Fremskrittspartiet's trademark registration in a letter dated Feb. 26. Apple claims the political party's mark could be confused with five of its own registered trademarks. Further, the logo resembles or incorporates elements of well-known, established branding and is thus in violation of Norway's Trade Marks Act.

Registered with the Norwegian Industrial Property Office last November, Fremskrittspartiet's trademark overlays stylized "FR" iconography on a large red apple, complete with black stem and green leaf. The design is reminiscent of Apple's trademark, a two-dimensional rendering of an archetypal apple silhouette.

Is it really, though? Doing a Google image search, below is about as relevant a logo as I could find for Apple Inc.

And below is the image registered by Fremskrittspartiet.

Are those logos really so similar? Even if another Apple logo that is slightly more similar exists, are they really likely to be so similar so as to cause confusion that isn't born of the fact that Apple's logo is... an apple? And if we then layer on top of that the fact that this logo is being used by a political party and not a private enterprise, then what is the validity for this opposition at all? Did the party register the mark for the kinds of goods you'd expect a political party to produce, such as buttons and t-shirts and the like? Yup. Is anyone in Norway going to think any of that indicates that Apple had endorsed this political party, or was somehow now in the political party arena? Come on.

So this now all is pending a response from Fremskrittspartiet. If that response is anything other than, "Are you freaking kidding me?", I will be sorely disappointed.

Filed Under: fremskrittspartiet, likelihood of confusion, logo, norway, trademark
Companies: apple

Last Chance To Get Your Techdirt Anniversary Gear!

from the throwback dept

It was last week that we celebrated Techdirt's 20th anniversary, and part of that included digging up the very first Techdirt logo...

...and turning it into some limited edition t-shirts, hoodies and stickers! Now it's your last chance to get your hands on this special anniversary gear, as the sale ends tomorrow, Sunday September 3rd. So if you want one, hurry up and order now! And don't forget to check out our store on teespring for other Techdirt gear.

Filed Under: anniversary, gear, logo, t-shirt

University Sending Out Trademark Letters To Parody Artist Over Logo/Mascot It Abandoned

from the sue-sioux dept

As you may recall, we had written about the University of North Dakota getting trolled by a jackass over attempts to give themselves a new school team name. Once called The Fighting Sioux, the school bent to local tribes' requests and agreed to abandon that name and come up with a new one. After soliciting suggestions from the public, a guy who wanted the school to keep its old team name went ahead and registered for trademark all of the new possible team names. It was a move as annoying as it is ineffective since, as we pointed out at the time, this man would have to prove he was using those marks in the same marketplace as the school in order to allege any kind of trademark violation. UND was the victim of trademark bullying.

But now the shoe is on the other foot, as UND lawyers have sent cease and desist notices to a Denver UND alumnus who has created clothing featuring a parodied version of the old UND mascot logo. Here are the two logos side by side.

So, yeah, there isn't a ton of differences there, but what changes were made make a significant impact. Parody only works if there's similarity, of course, and it seems unlikely that anyone is going to miss the outstretched tongue and think they're buying official UND clothing. That isn't stopping the school from sending out the letters, though.

Karl Larson is still making and selling clothing that parodies UND's retired Fighting Sioux logo after the school's legal counsel sent a letter asking him to stop. The Fighting Sioux nickname was controversially retired in late 2012 after the NCAA threatened sanctions, but UND still owns the trademark to the logo, which was designed by American Indian artist and sculptor Bennett Brien. The cease and desist letter from UND dated Sept. 23 states Larson's logo is an "unauthorized reproduction," and is likely to cause confusion, constituting copyright infringement.

"While your website includes a self-serving referenced to 'parody,' we do not believe that there is any legal authority that would even remotely suggest that the minor, almost imperceptible modification to the work here qualifies as permissive use."

The use clearly is parody. The entire point of the change in logo is to mock the school for abandoning its trademarked name and associated images. Finally, the school abandoned the trademark and images. That should end the trademark argument right there. For a trademark to be valid, it needs to be actively used in commerce. The school abandoned its nickname and logo in 2012. Spend some time on the school's athletics page and you won't find the old logo anywhere.

Larson has reportedly retained counsel out of Fargo to respond to the letter, but I wouldn't expect much other than an explanation of how trademark law works to be required.

Filed Under: fighting siux, karl larson, logo, mascot, parody, trademark
Companies: university of north dakota

MLB Claims That Finance Company's 'W' Logo Violates 2 MLB Teams' Trademarks

from the 2-too-many dept

Let's play out a little thought experiment. Let's say that a corporation involved in the money business has a logo for themselves. Now, let's say that two separate trademark holders both claim that this company's logo is too similar to their own. However, let's also stipulate in this scenario that the two offended trademark holders, who both claim similarity concerns with the finance company's logo, aren't bothering to file against each other for trademark claims, even though both are intimately knowledgeable of the other. Now, just to really make all this as face-palming-ly silly as possible, let's consider that these are the three logos in question:

Well, this isn't a thought experiment, it's actually happening, and it is maddeningly silly. The top left image is a registered logo for the Washington Nationals baseball team, the bottom left is the registered "W" flag the Chicago Cubs fly on the rare occassion they win anything, and the logo on the right is that of Evolution Finance's website, WalletHub, through which users can compare credit card prices and get financial advice. So what's the problem, you ask?

Evolution Finance has been locked in a trademark dispute with lawyers representing the Washington Nationals and Chicago Cubs for two years after Major League Baseball, on behalf of the teams, opposed their attempt to trademark the white-and-green logo. The league asserts that the WalletHub logo bears a strong resemblance to Ws trademarked by the two teams, and that granting Evolution Finance rights to use the mark without restrictions could create confusion for customers and complications for both businesses.

So many issues here, one struggles to know where to begin. Let's start with the fact that Evolution Finance is as much in the baseball business as it is in the puppy-murdering business, which is to say not at freaking all. "I came here to buy baseball tickets and I ended up transitioning my 401k into a personal Roth IRA on the basis of better returns in the bonds market" is a phrase that is nearly impossible to even have imagined, thus showing the extreme and dangerous power of dumb ass trademark claims. Add to it that half the problem appears to be that a trademark was granted on what barely amounts to more than a letter and we've already got issues with MLB's claims.

But to really make this a head-scratcher, I'm trying to figure out why the two teams, who actually are in the same market, are being allowed to make this claim when they haven't bothered to go after each other over their respective marks. I mean, the obvious answer is that the league likely wants the two teams to play nice over the Ws each as trademarked, but that shouldn't make anyone more comfortable with a specious move attacking a company that isn't in their market.

“It is common for trademark owners to sometimes overreach in protecting their marks,” said S. Lloyd Smith, an attorney at Buchanan, Ingersoll and Rooney who represents Evolution Finance. “They’re always concerned or cautious that if they don’t enforce their marks they might lose their rights. The real question is why does MLB care?” Smith said. “They don’t own the letter W. There’s lots of other Ws out there. They’re just plainly overreaching in this case.”

Overreaching and fanning on a curve ball for strike three, more like it.

Filed Under: baseball, cubs, finance, logo, nationals, trademark, w, win
Companies: chicago cubs, evolution finance, major league baseball, mlb, washington nationals

DC Comics Refuses To Let Superman Logo Adorn The Headstone Of A Young Child Who Was Starved To Death [Updated]

from the copyright-as-kryptonite dept

Please see update at the bottom

Superheroes: they're awesome. While they are often conflicted, they stand for truth and justice, protecting the fictional masses from unseen evils without so much as a paycheck. You know, like Edward Snowden, but with masks and bikini briefs and whatnot. Children, in particular, love superheroes, because they're still young enough to not yet have had their view of humanity deflated through the experience of living. Still, even for those reading the most tragic of stories, there is an important lesson to be learned: superheroes are awesome, but the people who own them aren't.

You can't meet Jeffrey Baldwin of Ottawa, because at five years old he was the victim of his own grandparents, who starved him to death. But if you could meet Jeffrey, he'd probably tell you all about Superman. See, Jeffrey loved the Man of Steel so much that members of his community that had never even met him were moved to provide for a memorial statue in his name, with the Kryptonian "S" on the boy's chest. Todd Boyce, who had been taken with Jeffrey's death and the testimony in his trial, tried to do the right thing and contacted DC Comics to get their blessing.

The request to the comic books publisher had been made by Todd Boyce, an Ottawa father who did not know the Baldwin family. Boyce was so moved by the testimony at the coroner’s inquest into Jeffrey’s death last year that he started an online fundraising campaign for the monument.

You already know what comes next, don't you? DC Comics wrote a polite but still utterly infuriating reply that essentially said, "Nope!" This reply cited a "variety of legal reasons" that likely boils down to copyright and trademark rights. And, from DC's standpoint, I'm sure they also considered the sudden flood of requests they'd get from people who would also like to have Superman's logo on their headstones, family crests, and all the rest. But, seriously, we really couldn't have figured out a way to get a little Superman on Jeffrey's memorial statue? Superman was created over eighty years ago, but we're still at a place where we can't let a child have his hero moment, even in death?

For Boyce, it was a huge blow, as he felt the Superman aspect was a crucial part of the bronze monument, which will include a bench. The coroner’s inquest heard from Jeffrey’s father that his son loved to dress up as Superman.

“I’m sort of empathetic to (DC’s) point of view on this, but I feel very strongly that the image of Jeffrey is so powerful,” said Boyce. “It’s the image of a vulnerable boy dressed up as the most invulnerable character in the universe. So I just feel like there’s something lost if we change it.” Boyce said he understood DC’s stance, in that he felt they didn’t want the Superman character associated with child abuse.

That's very understanding of Boyce, but what!?!? If DC's legal reasons for this refusal have anything to do with not wanting the logo to be associated with child abuse, then we have some lawyers on our hands that are serious candidates for lobotomies. This is a child victim we're talking about, the kind of person the fictional Superman would damn well have stood up for. It's too bad Superman's real-life owners don't share those same convictions.

Update: And... as is often the case following public shamings, DC has now relented and will allow the use of the logo.

Filed Under: child abuse, copyright, dc comics, headstone, jeffrey baldwin, logo, superheroes, superman, tombstone, trademark
Companies: dc comics

US Spy Satellite Logo Not At All Subtle: Octopus Enveloping The Earth

from the nothing-is-beyond-our-reach dept

Over the past few months, I've certainly wondered quite a bit about just how bad the NSA seems to be at recognizing how the public feels concerning what it's doing. This week's revelations about tracking mobile phone locations was incredible because folks at the NSA must have known that information about this program was in Snowden's collection, and yet when they were asked about collecting location info a few months ago, they made statements that would clearly look bad, when put next to the truth:

“We don’t get any cell site or location information as to where any of these phones were located.” -- Keith Alexander

These phones. Under this program. But under this other program we collect pretty much everything. Beyond that, the various "code names" the NSA uses are somewhat revealing as well. Lots of people commented on the insanity of calling the giant database FASCIA. But, at the very least, you could argue that the NSA never expected those code names to be made public. And with the misleading statements, they were still holding out hope that maybe, just maybe, a meteor would magically flatten Glenn Greenwald, Barton Gellman and Laura Poitras before the info got out.

But... how about when the US intelligence community actually does something publicly. Like live tweeting the launch of a new spy satellite. Apparently, they slap the most unsubtle logo on it that you can imagine.

Here's a photo of NROL-39 being readied for launch. Check out the full gallery: http://t.co/dHrcSxXhG0 pic.twitter.com/sEHEqPYWRB

— Office of the DNI (@ODNIgov) December 5, 2013

You may not be able to see the logo used on the rocket, but here's a closeup. Yes, it's an octopus, with tentacles reaching all over the globe. And the tagline is "Nothing is Beyond Our Reach."

Sure. They're spies. This is what they do. But, somehow, you'd think that maybe, just maybe, someone with a tiny bit of sense back there at the office of the director of national intelligence would think that, "gee, a lot of people around the globe are pretty fucking angry at us for all the spying we're doing right now. maybe we shouldn't be spitting in their faces, mocking their concerns, and reminding them that we're blatantly evil people who really don't give two shits about their privacy."

Of course, that would take some actual recognition of what anyone thinks of them, and that doesn't seem to be part of the way that the US intelligence community operates.

Filed Under: logo, nsa, odni, spy satellite

NSA Infringed Adam Hart-Davis' Photograph For Its PRISM Logo

from the uh-oh dept

Perhaps the NSA has finally met its match: copyright infringement. You may have seen the logo that the NSA is using for the PRISM program (shown here upside down for a reason that will become clear shortly): Well, it turns out that the prism image that they used is being used without permission. The photo was actually taken by Adam Hart-Davis, a well-known BBC presenter. You can see the original below:
Photo by Adam Hart-Davis/DHD Multimedia Gallery As Adam's son, Damon, notes in the link above, the image is free for use via his gallery under some simple terms, including acknowledging the author. Damon jokingly suggests asking the NSA for a small donation, though he worries about any undue attention from the folks at the NSA.

Of course, in a country where copyright laws trump all, perhaps Damon could sue for infringement and seek discovery to find out all the documentation on PRISM.

Filed Under: adam hart-davis, copyright, damon hart-davis, logo, nsa