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Comment Re: How is this paid for? (Score 1) 1291

That's why their leaders come to the USA for treatment.

As an American, I don't see how I benefit from a health care system that according to you is good at providing care to the wealthy and powerful of the world, but which we also know is crappy at providing care to the rest of us. Are you suggesting that good health outcomes for select individuals trickle down?

If a health care system that worked better for the vast majority of Americans happened to also discourage the elite from treatment here, I'm prepared to live with that. In no small part this is because under the current system I might not wind up living at all.

Comment Re:If I were king.... (Score 5, Informative) 70

The last time somebody tried this was the Library of Alexandria which required the dictates and commands of several kings. Even then they had to pay money to the Athenians to get some documents.

Well, that was because the Library wanted to make a copy of the original manuscripts of Aeschylus, Sophocles and Euripides. Athens was reluctant to allow the manuscripts to be sent to Alexandria (presumably they would've preferred to have them copied in Athens), but ultimately allowed it provided that the Library provided a cash deposit to ensure the safe return of the manuscripts.

Instead, predictably, the Library kept the originals and returned the copies, and was happy to forfeit the money, which was almost 500 kilograms of silver.

The normal M.O. of the Library was just to require that all documents going through Alexandria be available for copying by the Library, and to be a major port and trading hub so that a lot of documents happened to pass through.

It all worked pretty well (for a library that relied on hand-copying, the printing press not being invented yet) until some assholes burned the place down.

Comment Re:Microsoft Menus .. (Score 1) 354

There was a crappy icon dock extension in System 7.5 that was sort of like the modern ability to pin programs to the taskbar though.

I can't help but think that you're thinking of DragThing. It wasn't an extension, though, it was its own program. And it certainly wasn't crappy.

Comment Re:Sorry, but Apple still deserves most of the cre (Score 2) 354

Eject a disk by moving it from my desktop to the trash with all the files I want to delete? Makes sense.

Well, to understand this, you have to recall that early Macs had to be able to run off of a single floppy drive. Users might buy a hard drive or a second floppy drive (or if they had a dual-floppy SE, a third floppy drive for some reason) but it couldn't be relied on. Yet they still had to be able to tolerate having the OS disc ejected at times.

So there was a distinction between physically ejecting a disc while keeping it mounted (which was represented onscreen by a greyed out disc icon) so that you could copy to it, and both physically ejecting _and_ dismounting a disc.

The formal way that you were supposed to do this was by using menu commands. The Eject command was for eject-but-keep-mounted while the generally ignored Put Away command was for eject-and-dismount. It was also possible to use Put Away on an already greyed out, ejected-but-mounted disc icon.

User testing showed that this was inconvenient, and one of the OS developers eventually created a shortcut for the Put Away command, which was to drag a disc icon to the trash. It wound up being so popular that it shipped.

Apparently there had been some thought at the time about changing the Trash icon into some sort of Eject icon in the case of ejecting a disc, but apparently this was felt to be confusing or too difficult, so it wasn't done. In OS X the idea was revisited, and now the Trash icon does turn into a standard Eject icon when you're dragging a disc.

In any case, in real life, whatever confusion dragging disc icons to the trash might have caused, everyone got over it basically immediately.

Switching tiled applications makes the one menu bar change? Sure. It's not like moving the cursor half the screen for each click is a waste of time.

It's not; since there's nothing above the menubar, you can just slam the mouse up. It turns out to be faster and easier than having multiple menu bars. The Mac and Lisa groups did consider per-window menubars, but having tested the idea, it was rejected. For example, here's some polaroids of a screen from 1980 showing a Lisa with a menu attached to the bottom of a window: Later that year, the menu had moved to the top of the windows: And early the next year, it finally settled at the top of the screen:

Comment Re:Half the story (Score 1) 213

For example, if you were to open a fast food shop and call it Walt Disney's Fries Company, the Walt Disney cartoon and theme park company may try to fight this, but they wouldn't stand much of a chance.

Ha, no. They would destroy you so utterly that even brave men would only whisper about you when safe behind locked doors, and as for the store itself, it would be smitten so hard that nothing but twisted weeds would ever grow on that spot again. You might want to read up on trademark dilution.

Comment Re:Half the story (Score 2) 213

It depends.

There's really no such thing as a copyright on a character; there's just copyrights on works, which characters may be part of. Also, where more than one work is at issue, note that the copyright for derivative works only applies to new material added in the derivative work; it doesn't protect the pre-existing material at all.

Not all characters are defined well-enough to be protectable by the copyright to begin with. The degree of characterization matters. A character that's nothing more than a chessman could get reused pretty freely. An extremely well-defined character probably couldn't be. This is like the difference between a butler that did it, but about whom nothing else is told in the book, and a well-defined butler (well, valet, technically) like Jeeves, where we know a lot about him (preferred foods, what he reads, his club, things he knows about, etc.)

So assuming a protectable character, the issue basically boils down to whether the first work in which that character appeared is in the public domain. If it is, then the character -- as he was defined in the public domain material -- is fair game. Otherwise, you'd just be making a derivative of a copyrighted work, which is infringing. Remember, character attributes that first appear in works that are still copyrighted are not available.

As for a trademark, it would unavoidably be lost in this scenario. A trademark can only exist where it serves to indicate that goods bearing the mark originate from a particular source. Since copyright law would allow anyone to make copies or new works which included the mark, and since in the event of conflicts, copyright law trumps trademark law (many people in this discussion have noted the Supreme Court's opinion in Dastar on this point), the mark could no longer indicate that copies shared a common source, and so it would become an unprotected generic mark. If that were not so, the trademark would act like a copyright, which would be unconstitutional.

Comment Re:Half the story (Score 1) 213

Just because the story is in the public domain, that doesn't mean you have the ability to use the trademarks.

Actually, it's usually not a problem. Here's the Supreme Court, weighing in in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 US 23 (2003). The thing to know about the case is, there was a tv series based on a book; the book was copyrighted, but the tv series' copyright hadn't been renewed (back when that was a thing), so it had entered the public domain. Dastar made copies of the public domain tv show and sold them. Meanwhile, Fox got the tv rights to the book, then made copies of the tv show and sold them. Fox sued on trademark grounds (specifically section 43 of the Lanham Act).

It could be argued, perhaps, that the reality of purchaser concern is different for what might be called a communicative product -- one that is valued not primarily for its physical qualities, such as a hammer, but for the intellectual content that it conveys, such as a book or, as here, a video. The purchaser of a novel is interested not merely, if at all, in the identity of the producer of the physical tome (the publisher), but also, and indeed primarily, in the identity of the creator of the story it conveys (the author). And the author, of course, has at least as much interest in avoiding passing off (or reverse passing off) of his creation as does the publisher. For such a communicative product (the argument goes) "origin of goods" in 43(a) must be deemed to include not merely the producer of the physical item (the publishing house Farrar, Straus and Giroux, or the video producer Dastar) but also the creator of the content that the physical item conveys (the author Tom Wolfe, or -- assertedly -- respondents).

The problem with this argument according special treatment to communicative products is that it causes the Lanham Act to conflict with the law of copyright, which addresses that subject specifically. The right to copy, and to copy without attribution, once a copyright has expired, like "the right to make [an article whose patent has expired]including the right to make it in precisely the shape it carried when patented-passes to the public." Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 230 (1964); see also Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 121-122 (1938). "In general, unless an intellectual property right such as a patent or copyright protects an item, it will be subject to copying." TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U. S. 23, 29 (2001). The rights of a patentee or copyright holder are part of a "carefully crafted bargain," Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 150-151 (1989), under which, once the patent or copyright monopoly has expired, the public may use the invention or work at will and without attribution. Thus, in construing the Lanham Act, we have been "careful to caution against misuse or over-extension" of trademark and related protections into areas traditionally occupied by patent or copyright. TrafFix, 532 U. S., at 29. "The Lanham Act," we have said, "does not exist to reward manufacturers for their innovation in creating a particular device; that is the purpose of the patent law and its period of exclusivity." Id., at 34. Federal trademark law "has no necessary relation to invention or discovery," Trade-Mark Cases, 100 U. S. 82, 94 (1879), but rather, by preventing competitors from copying "a source-identifying mark," "reduce[s] the customer's costs of shopping and making purchasing decisions," and "helps assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product," Qualitex Co. v. Jacobson Products Co., 514 U. S. 159, 163-164 (1995) (internal quotation marks and citation omitted). Assuming for the sake of argument that Dastar's representation of itself as the "Producer" of its videos amounted to a representation that it originated the creative work conveyed by the videos, allowing a cause of action under 43(a) for that representation would create a species of mutant copyright law that limits the public's "federal right to 'copy and to use'" expired copyrights, Bonito Boats, supra, at 165.

When Congress has wished to create such an addition to the law of copyright, it has done so with much more specificity than the Lanham Act's ambiguous use of "origin." The Visual Artists Rights Act of 1990, 603(a), 104 Stat. 5128, provides that the author of an artistic work "shall have the right ... to claim authorship of that work." 17 U. S. C. 106A(a)(1)(A). That express right of attribution is carefully limited and focused: It attaches only to specified "work[s] of visual art," 101, is personal to the artist, 106A(b) and (e), and endures only for "the life of the author," 106A(d)(1). Recognizing in 43(a) a cause of action for misrepresentation of authorship of noncopyrighted works (visual or otherwise) would render these limitations superfluous. A statutory interpretation that renders another statute superfluous is of course to be avoided. E. g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837, and n. 11 (1988).

[The Court found that the Lanham Act did not prevent Dastar from selling copies of the public domain video, and then said:]

To hold otherwise would be akin to finding that 43(a) created a species of perpetual patent and copyright, which Congress may not do. See Eldred v. Ashcroft, 537 U. S. 186, 208 (2003).

Comment Re:Can't copyright titles (Score 1) 224

Actually, you cannot trademark the mere title to a work.

In order to just function as a trademark, a mark must indicate that all goods bearing a particular mark originate from the same source; merely identifying the good is insufficient.

The title to a work merely identifies the work. That's not enough to be a trademark. Only if there are multiple works, forming a series, and the mark is a shared part of the title indicating that all the works are part of that series, and that anything in that series shares a common source, can there be a real trademark.

So in 1991, the book DOS for Dummies was released. If that had been the end of it, it wouldn't be trademarkable. But it was followed up by Windows for Dummies and about a million others, and so FOR DUMMIES became a protectable mark. (And apparently there had been a single book by a different author back in the 70's called Auto Repair for Dummies, but since it was a standalone, it didn't have prior rights to the mark)

This is why the Harry Potter books are all titled Harry Potter and the Something Something. Otherwise they'd probably indicate somewhere on them that they were part of the Harry Potter series (as the Lord of the Rings books, among others, do).

Comment Re:Seems simple enough to reverse this strategy (Score 3, Informative) 224

Sorry, but that won't work.

You're citing 17 USC 106A. That only applies to the author of "a work of visual art." That term is specially defined in the Copyright Act, in the definitions section at 17 USC 101. The relevant parts of the definition are:

A "work of visual art" is--

(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

It really isn't possible for anything online to qualify, due to the requirement of there being only a single copy (a copy is defined in the Copyright Act as being a tangible object containing the work; a computer file isn't a copy, but a hard drive can be, which means that if other people can download it, they're necessarily making a new copy), or no more than 200 copies if each copy is signed and numbered and which are a limited edition.

What this is actually meant for is fine art, like a painting, art prints, etc. Not art posted online. It was a nice try, but you've got to check the statute more thoroughly if you want to cite it correctly.

Comment Re:Mickey Mouse copyirght extenstions... (Score 1) 183

The Mickey Mouse character has trademark protections, not copyright protections.


Characters are not creative works themselves, eligible for copyrights, but where characters appear in copyrightable creative works, the work itself, including the sub-part of the work which is the description of the character, is copyrighted. If the description is very minimal, a third party may be able to avoid infringing on the copyright of the work even though he reuses the character without permission. On the other hand, if the character is described in quite a bit of detail, reuse of that character may rise to the level that could qualify as infringement. If the character reappears in other works, the qualities of the character added there may also be copyrightable. If the original work in which the character appears enters the public domain, so does the character -- as he appeared in that work. Later changes to the character may remain protected until the works in which those changes first appeared also enter the public domain.

Character copyrights is a commonly understood shorthand for this concept of copyrights in those portions of a work in which a character appears.

For a fictional character to be a trademark, it must be used in a trademark capacity; just appearing in a creative work will not suffice. The character must be used in such a way as to indicate that the source of the goods or services that it's used in conjunction with are understood by the public to all originate from a particular source. When the character is used with goods that could come from any source, it has no function as a trademark.

For example, in the US, all of the original works by JM Barrie in which Peter Pan appears are in the public domain. Thus, anyone is free to make their own creative works featuring the Peter Pan character, plots, etc. And boy, do they ever -- I think there's yet another Peter Pan movie adaptation coming out this year, and there's always plenty of books, comics, cartoons, etc. Since anyone can do it, no one can have a trademark on the Peter Pan character with regard to any sort of creative work; the character is utterly incapable of indicating a single source.

However, there is a PETER PAN brand of peanut butter. The company that makes it has a trademark on it, and a perfectly good one. There's only one source of PETER PAN-brand peanut butter, and the public domain status of the character for creative works has no relevance in the field of peanut butter. Ditto for KING ARTHUR for flour, or BIBENDUM as used with tires.

Mickey Mouse's original appearance was in a still-copyrighted short film, so there is a copyright that protects the use of the character. There is also a well-known MICKEY MOUSE trademark used on all manner of products. It can be used in conjunction with creative works because no one else is allowed to use them with such works due to the copyright; thus all such works must originate from one source, and trademark protection is possible. When that first short film enters the public domain however, anyone can use the Mickey Mouse character in creative works, and this will kill the MICKEY MOUSE trademark with regard to goods that are creative works. The mark will only retain vitality in unrelated fields.

Derivative works could be created of Steamboat Willie once the copyright expires, but COULD *NOT* feature Mickey Mouse because Mickey Mouse would still be protected by trademark.

Wrong. Derivatives could feature Mickey Mouse, and the MICKEY MOUSE trademark applicable to such things would have ceased to exist at the same time as the copyright.

Those trademark protections would not be able to keep people from making copies of Steamboat Willie because Steamboat Willie itself always had authorized use of the character.

Wrong. First, because as noted the trademark would be dead at that point. Second, you utterly don't understand how trademarks work; if anyone can produce a good using the mark, that will kill the mark. It doesn't matter whether or not it's an exact copy of a good that was allowed to use the mark. In fact, that is precisely the sort of situation that trademarks are meant to protect against!

Trademark and copyright protect entirely different things, and you cannot reasonablyy use both to protect the same work

And yet it happens every day. Copyright and trademark can protect different aspects of a single work. There is no rule, outside of your absurd imagination, that says otherwise. I discussed this before with the Coca-Cola bottle.

If you are going to debate hypothetical situations, you should probably ask a lawyer or somebody else with a sufficient experience in IP law how it will go down, if you aren't willing to listen to somebody from another country.

Congratulations: I am a lawyer, (have been for some time, in fact) and my practice centers on copyright and trademark law. I assure you, I know what I'm talking about.

Still, if you'd like to read more on the issue of character copyrights and trademarks, try this law review article that a moment's googling produced: http://connecticutlawreview.or...

As for me, I don't think this discussion is going to become productive, so I'm done.

Comment Re:Mickey Mouse copyirght extenstions... (Score 1) 183

if they used the LEGO term, even to say they were compatible with LEGO, even with all explicit trademark acknowledgements, it would be at LEGO's discretion to either issue a C&D or not to bar them from continuing to refer to them, unless they company were somehow able to show that they were not a competitor for LEGO in any way

Sigh. I'm getting tired of having to do your homework for you:

It is the wholesale prohibition of nominative use ... that would be unfair. It would be unfair to merchants seeking to communicate the nature of the service or product offered at their sites. And it would be unfair to consumers, who would be deprived of an increasingly important means of receiving such information. As noted, this would have serious First Amendment implications. The only winners would be companies like Toyota, which would acquire greater control over the markets for goods and services related to their trademarked brands, to the detriment of competition and consumers. The nominative fair use doctrine is designed to prevent this type of abuse of the rights granted by the Lanham Act. ...

Trademarks are part of our common language, and we all have some right to use them to communicate in truthful, non-misleading ways.

That's from Toyota Motor Sales, Inc. v. Tabari, 610 F.3d 1171 (9th Cir. 2010). Hint: Toyota's LEXUS mark was at issue, and had been used by a competitor, and the court did not come down on the side of Toyota.

Nominative use is a doctrine in US trademark law by which parties other than a trademark holder can use a trademark without permission if:

1) The product is not readily identifiable without using the mark. (LEGO bricks are not readily identifiable without using the LEGO mark to refer to them; otherwise you'd have to say something stupid like 'plastic toy bricks made by a well-known Danish plastic toy brick company')

2) The defendant does not use more of the mark than necessary. (The word LEGO in an ordinary typeface would be fine; the red, yellow, black and white square-shaped LEGO mark, with its distinctive balloonish typeface, on the other hand, would be too much merely to indicate compatibility)

3) The defendant cannot falsely suggest sponsorship or endorsement by the trademark holder. (This is typically done by not using the mark in a way that suggests a relationship, while also disclaiming any relationship. It doesn't require not using the mark at all, however; the public recognizes that not all uses of a mark indicate endorsement)

Note, there is no requirement that the defendant claiming nominative use not compete with Lego. That's perfectly fine. If I make toy bricks and I want to say that based on a survey, children prefer my bricks 10 to 1 over LEGO brand bricks, I'm totally free to do so. (Provided, of course, that I have got such a survey; I can't just make crap up)

The decision of whether advertising should directly refer to competitors (e.g. People who took the Pepsi challenge preferred Pepsi to Coke) or whether it should not (e.g. Our dishwashing liquid works better and faster than brand X) is entirely one of the advertiser's preference. There is no legal requirement compelling one over the other, provided that the ad is truthful and (to some extent) not misleading.

I am suggesting that Steamboat Willie describes the cartoon, and Mickey Mouse describes the character.

If the MICKEY MOUSE mark describes the character, and the copyright on the Mickey Mouse character lapses such that anyone can create works featuring the Mickey Mouse character (which is a copyright issue), the MICKEY MOUSE mark no longer is capable of indicating that all such marked goods originate from a common source, which is a fundamental requirement for a trademark. Thus, the MICKEY MOUSE trademark is lost with regard to such goods, e.g. DVDs, comic books, and the like.

So if one makes an unauthorized copy of Steamboat Willie, they are not actually using the trademark in Mickey Mouse without permission

Yes, they are. "Without permission" means the same thing as "unauthorized," genius. It's no different than if I make an unauthorized copy of a Louis Vuitton purse.

Copyright and Trademark protect different things

Yes, but different aspects of a single object can be protected by different sorts of rights.

Consider a humble glass bottle of refreshing Coca-Cola. The shape of the bottle is protected by a design patent. The COCA-COLA mark is protected as a trademark. The formula for the liquid inside is protected as a trade secret. If it's a decorative bottle with a picture of Santa or a bear, or Santa Bear, the artwork is likely copyrighted. If the artwork is of a particular real person, it may also be protected by that person's right of publicity. And if they make the bottle out of some new sort of safety glass, the formula for the glass itself may be an invention protected by a patent. All this wrapped up in a single item that you can get out of a vending machine with the change in your pocket.

The Mickey Mouse character is protected, in different capacities, even in the same work, by both copyright and trademark. This is not even slightly unusual.

As I said, even though their trademark continues to be respected, the copyright on their oldest cartoons have already expired in several first-world countries with IP laws quite similar to those in the USA, and that did not extend their copyright as the US did. I live in one such country. The character was never freely copyable here even though the cartoon itself was.

I have no idea what your country is or what its laws are like, and as I said before, I really don't care. I've been discussing US law this entire time, which is reasonable on a US-based website, like this one, and that's all I'm really interested in.

Comment Re:Mickey Mouse copyirght extenstions... (Score 1) 183

when the Steamboat Willy copyright expires ...

Someone could make a derivative work of the Disney short and call the title character something other than Mickey Mouse, but if they tried to call him Mickey Mouse, Disney could take action against them for using their trademark without permission.

Wrong, because the instant the copyright expires, a large part of the trademark lapses. Disney no longer has any rights to base a cause of action on. The reason for this is that because copyright law no longer prevents anyone from making copies or derivatives and putting them into commerce, the MICKEY MOUSE mark changes from being descriptive (of the character named Mickey Mouse) with secondary meaning (which can only originate from Disney) to being merely descriptive, without secondary meaning.

It looks to me as though you're putting the cart before the horse, incorrectly believing that the trademark survives the entry of the work into the public domain. But it does not; only a few fragments of the trademark survive.

Ultimately, copyright and Trademark are two wholly different pieces of intellectual property that govern entirely different things, handled almost entirely orthogonally to eachother, and in practically all cases, one has absolutely no effect on the other.

Sure. But this is one of those exceptional cases.

The only way that trademark could possibly be affected by Steamboat Willie falling into public domain is if that would or might cause the public to not realize who Mickey Mouse belongs to, but since the copied work is still a *COPY* of the work, and so would still be clear who owns the intellectual property that is still very much alive.

Actually that is exactly what happens; when everyone and his dog can legally create new, derivative, Mickey Mouse cartoons, because the underlying copyright has expired, the public is assumed to no longer associate the MICKEY MOUSE mark, to the extent it pertains to goods including creative works, only with such goods made by Disney. This is SHREDDED WHEAT, which I'll get to in a moment.

Also, note that trademark doesn't care about whether a work is a reproduction of something or not. It cares about the origin of a specific, tangible copy, not of the underlying work. If you start Mark-T Press, and print up copies of Romeo and Juliet, I am not allowed to start Kangarooski Press and print up copies that bear your mark. OTOH, I am perfectly entitled to print up copies of Romeo and Juliet under my own mark. In fact, so long as you're just reprinting the play (and not making such substantial changes as to amount to a new work, which is a bit more difficult than you'd think), I'm even entitled to make copies of your version, so long as I take care to not use your mark and to only use my own, thanks to Dastar, which eliminated reverse passing-off for works (and hopefully is the beginning of a trend of eliminating reverse passing-off altogether).

Be aware that the copyright status on the short has already expired in several countries that do not practice the copyright durations the US currently has in place, and the cartoon can be freely distributed or copied in said jurisdictions, while the trademark status has remained entirely unaffected.

I'm only familiar with US law, and that's all I've been discussing the entire time. I have no knowledge or interest in how other countries handle this, except as how it might provide us with good ideas or cautionary examples in our own legal reform efforts.

I am not directly familiar with the Shredded Wheat case you mentioned

It is Kellogg Co. v. National Biscuit Co., 305 U.S. 111 (1938).

The relevant language:

The plaintiff [Nabisco] has no exclusive right to the use of the term 'Shredded Wheat' as a trade name. For that is the generic term of the article, which describes it with a fair degree of accuracy; and is the term by which the biscuit in pillow-shaped form is generally known by the public. Since the term is generic, the original maker of the product acquired no exclusive right to use it. As [defendant] Kellogg Company had the right to make the article, it had, also, the right to use the term by which the public knows it. ...

Moreover, the name 'Shredded Wheat', as well as the product, the process and the machinery employed in making it, has been dedicated to the public. ... Since during the life of the patents 'Shredded Wheat' was the general designation of the patented product, there passed to the public upon the expiration of the patent, not only the right to make the article as it was made during the patent period, but also the right to apply thereto the name by which it had become known. ...

It is contended that the plaintiff has the exclusive right to the name 'Shredded Wheat', because those words acquired the 'secondary meaning' of shredded wheat made at Niagara Falls by the plaintiff's predecessor. There is no basis here for applying the doctrine of secondary meaning. The evidence shows only that due to the long period in which the plaintiff or its predecessor was the only manufacturer of the product, many people have come to associate the product, and as a consequence the name by which the product is generally known, with the plaintiff's factory at Niagara Falls. But to establish a trade name in the term 'shredded wheat' the plaintiff must show more than a subordinate meaning which applies to it. It must show that the primary significance of the term in the minds of the consuming public is not the product but the producer. This it has not done. The showing which it has made does not entitle it to the exclusive use of the term shredded wheat but merely entitles it to require that the defendant use reasonable care to inform the public of the source of its product.

the terminology accurately described the product in the first place

Are you suggesting that MICKEY MOUSE does not 'accurately describe' a product including the Mickey Mouse character?

As a counter-example, while Lego's last standing patent on Lego bricks expired in 1989, nobody else that makes so-called compatible building blocks is allowed to call their product Lego, nor are they allowed to even explicitly say they are compatible with Lego (even if they are) without first getting permission from Lego to do so (and they would be extremely unlikely to receive such permission, since they would be a direct competitor), because Lego still holds trademark status on the term in the context of a toy (and also as a company name).

As the last part of the quote from SHREDDED WHEAT discusses, there is a difference between a mark that is associated with a product, and a mark that is associated with the source of a product. If you sell ELEVATOR-brand vertical conveyance devices, you're doing okay. But if the public associates the ELEVATOR mark with the actual device itself, then you lose your trademark because it has become a generic term for any such device. This is genericide. It's happened with ELEVATOR, TRAMPOLINE, ESCALATOR, THERMOS, and YO-YO. It came very close to happening with SANKA but then people started using decaf as a generic term instead. XEROX, BAND-AID, VELCRO, KLEENEX, Q-TIP, and in fact, LEGO have been teetering on the precipice for years. But this is why you see their advertising very clearly refer to things like VELCRO-brand hook and loop fasteners, KLEENEX-brand tissues, and in the case of legos, LEGO bricks. Xerox has been running public awareness ads for decades in order to keep their mark alive. My favorite had the tagline 'You can't xerox a xerox on the xerox,' pointing out that they would greatly prefer it if people did not use the XEROX mark as a generic term for photocopying, photocopies, and photocopiers, respectively.

If the applicable patents are expired, then anyone can make LEGO compatible bricks. And thanks to the nominative use doctrine of trademark law, anyone who does make LEGO compatible bricks is allowed to say that they are compatible with LEGO bricks, so long as they don't misrepresent their bricks as originating from the Lego company itself.

But Lego NEVER refers to their product as LEGOs. That would be to invite the loss of the LEGO mark. They refer to their product as bricks. Go ahead and tell me that MICKEY MOUSE doesn't mean the Mickey Mouse character, in the minds of the relevant portion of the public.

Of course, if Disney had trademarked the title "Steamboat Willie", they would lose certainly lose trademark protection on that title once the work with that fell into public domain.

You can't trademark the title of a creative work for the same reason; it's a descriptive term for the work itself, without secondary meaning. When you see a trademark in a title, it's because it's part of a series of similarly named works. Like for Harry Potter books, the HARRY POTTER mark can only arise because all the books are named Harry Potter and the something something. If the titles were all totally distinct (e.g. "The Sorcerer's Stone," "The Chamber of Secrets," etc.) without an overarching series name, the titles would not be trademarkable.

Comment Re: Mickey Mouse copyirght extenstions... (Score 1) 183

If you create something, you have the natural, "god-given" right to exclude others from doing anything with it.

Wrong. You only have a natural right to control whether or not you create it at all.

someone else's free speech rights don't extend to seeing or copying it at all.

A third party certainly doesn't have a right to compel you to reveal your work to them. But if you do deliberately or inadvertently reveal it, they do have a natural free speech right to copy it and to distribute those copies as they see fit.

You have mail.