What’s in a name? – Two timely questions of identity and personality rights

July 6, 2011

For the past few weeks, my mind has been trained on the intersection between personality/publicity rights and trademark rights.  Initially I was inspired by events in my own life, but headlines have fueled further internal debate on the subject.  Currently I’m focused on two interesting and completely unrelated cases regarding the names of individuals: DJ Paulie vs. Pauly D and Rick Santorum vs. Google.  Each poses a compelling question.

In the case of Pauly D, I am left asking myself, “Does an individual own an unabridged right to use their birth name or a obvious derivative of their name in business?”  Currently Paul Lis aka DJ Paulie asserts that Paul “Pauly D” DelVechhio of the Jersey Shore is infringing upon his registered trademark and causing him to lose work.  Additionally, last year when Pauly D sought to trademark his name, the USPTO denied Mr. DelVecchio for a likelihood of confusion.  Nothing outright prevents the registration of similar or identical marks so long as it can be show that the two marks won’t create a likelihood of confusion.  Also, DJ Paulie doesn’t seem to assert that Pauly D is creating any level of confusion, but he does claim that the Jersey Shore star is diminishing the fame of his mark.

It is my personal opinion that the likelihood of confusion between Pauly D and DJ Paulie is minimal.  The DuPont Factors identify multiple criteria that must be examined in order to find a likelihood of confusion beyond name similarity including the fame of the prior mark, products displaying the mark, and the condition under which goods baring the mark are purchased.  DJ Paulie appears to be a cookie-cutter internet radio station with a moderate sized social media reach.  Whereas, Paul DelVecchio has created an enormous brand surrounding his nickname due to his reality TV appearances.  Ultimately, I believe this case hinges on consumer sophistication.  With the boom of social media, listeners have access to more music and entertainment than ever before in the history of man, and with that, comes a heightened sense of individuality of taste.  Whatever you want to hear can be found almost in an instant, so today’s listeners aren’t prone to making impulse purchases regarding music as they once were.  With that being said, I don’t think anyone would confuse a middle-aged internet radio DJ with a young reality TV celebrity that happens to deejay in clubs for additional income.

The second question is what right does an individual like Rick Santorum hold in fighting a Google bomb.  Eight years ago, Rick Santorum infuriated an individual with a negative comment towards homosexuality, and that internet user set out on a campaign to smear Santorum’s name by having it associated with an obscene situation.  Through an understanding of search engine optimization said user succeeded in making his new definition the top result when anyone Googled “Rick Santorum”.  There is very little you can say to dispute the internet as the primary disseminator of information in the modern world, and with Google being the leading search engine, this must debase the value of his name.

Because Rick Santorum is a public figure, he’s afforded very little protection in the way of personality rights, libel, and intentional infliction of emotional distress as counterbalances by First Amendment rights.  On the other hand, if Rick Santorum were a business or celebrity, I think he would have a potential claim under the personality rights of Indiana.  Indiana requires that a portion of a party’s personality be misappropriate in a commercial use.  To me, name is obviously at the core of personality.  If a non-political blogger chose to Google bomb an individual as was done to Rick Santorum, I think most attorneys could craft an argument that the Google bomb was commercial in nature and meant to bolster the career of the blogger.  Although I believe Rick Santorum has little recourse available to him, I think the situation poses an interesting question.

Per usual, this isn’t meant to be legal advice.  These are just my mental musings on a reoccurring subject.


Viacom Actively Infringed Upon Itself on YouTube

May 22, 2010

As the war between Viacom and Google heats up, this has become one of my favorite news bits from the past couple of months.

As court documents from the feud became public, it was discovered that Google alleges that some of the challenged content was intentionally posted on Youtube by Viacom. This presents an interesting defense.  In an economic environment where viral marketing is the most effective, Viacom has a multitude of reasons to infringe upon their own rights.  If they chose to do so, does that constitute a waiver of their copyrights?

In the world of Web 2.0, viral marketing has become and essential component of nearly every business.  Social media has made the consumer tremendously stronger when it comes to promoting any product or service.  Having a user create a Facebook campaign for you seems to be even more effective than a Super Bowl Commercial (the Betty White SNL campaign).  In order to appear as if a product has grassroots support, companies will use secondary companies to post content from IP addresses not associated with either company.  Ever notice how the first few episodes of every new show get “leaked”?

The concept of viral marketing poses very few IP questions to the average company as they have little content to protect.  Entertainment companies like Viacom, however, have a lot to lose and gain from viral marketing and user created content.  How does a company go about exploiting the new technology while still protecting their content?  And if they chose to promote the infringement of their content via specific outlet, does that create a blanket waiver of the infringement of their content on that outlet?

The first lesson that I feel like needs to be learned by most businesses is that social media is leveling the playing field.  We all have a link to mass media and a wide base of consumers.  In order to stay relevant, traditional companies are going to have to make use of the new medium.

Secondly, copyright laws in this country need to be overhauled to handle this new level of mass communication.  If web users are going to drive your sales, then you need to make concessions to said users when it comes to enforcing your intellectual properties.

Full story @ USA Today


RIAA Halts Prosecution of Individual Pirates

December 27, 2008

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In a move that generally shocks me, the RIAA has decided to quit filing suit against individual MP3 downloaders, but this shift in policy is not a sign of surrender.  The RIAA has shifted strategies to notifying ISPs of offenders and potentially having them blacklisted from the internet.  

Under the new policy, if an offender is caught downloading copyrighted content illegally three times, the RIAA will request that offenders internet access be revoked.  This could create a whole class of citizens that have been denied access to the fastest growing communications tool humanity has ever seen without so much as a single government hearing.  Even an administrative agency would have to hold a hearing to determine the presence of an infringement.

As telecoms continue to bundle packages that include internet, TV, and voice, would they be forced to revoke all services upon the third infringement?

Full article @ Wired