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Law

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Kathleen Diaz

on 27 March 2017

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Transcript of Law

Abdul-Jabbar v. General Motors
85 F.3d 407 (9th Cir. 1996)


Why the District Court was Right
Issues
1.) Was the doctrine of abandonment relevant to this case?

2.) Did the defendant violate the Right of Publicity?


Abandonment
Nominative Fair Use
Definition:
1) the product or service in question must be one not readily identifiable without use of the trademark
2) only so much of the mark or marks may be used as is reasonably necessary to identify the product or service
3) the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder

New Kids on the Block case
* newspaper surveys
* commercial calls



VS
Why the District Court was Wrong
Trademark Infringement
Trademark infringement: when someone who is not the owner of a trademark engages in unauthorized use of the trademark that leads to confusion or deceives consumers.
Requires:
1. Ownership (continuous use and first to own)
-
Star-Kist Foods, Inc. v. P.J. Rhodes & Co.
2. likelihood of confusion

Commericial Misappropriation
Facts
Plaintiff sued for violation of the Lanham Act and the Right of Publicity.
The defendant utilized the plaintiff’s birth name, in a commercial, without the authorization of the plaintiff.
However, when the plaintiff converted to Islam he had his name changed to Kareem Abudul-Jabbar.
The district court found that the plaintiff had abandoned his name (mark) when he legally changed it.
The district court ruled in favor of the defendant, but the plaintiff is challenging this ruling in appellate court.
Rule #1
Abandonment
When its use has been discontinued with intent not to resume such use.
When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its significance as a mark.
Rule #2
Right of Publicity
The right of any person to control the commercial use of his own identity; protects against commercial misappropriation.

Commercial Misappropriation
"The use of a person’s name or likeness for commercial purposes without consent is misappropriation"
Group 7: Kathleen Diaz, Sarah Mercier, Alex Pettola, and Tyler Singleton
References
Elements of Appropriation
Defendant's use of the plaintiff's identity
Appropriation of plaintiff's name or likeness to defendant's advantage
Lack of consent
Resulting injury

Eastwood v. Superior Court

“A mark shall be deemed to be "abandoned" if either of the following occurs:
(1) When its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances.
(2) When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its significance as a mark.
Indianapolis colts v Baltimore Colts

Star-Kist Foods, Inc. v. P.J. Rhodes & Co.
, 769 F.2d 1393, 1396 (9th Cir. 1985)
Indianapolis Colts v Baltimore Metro. Football Club
34 F.3d 410; 1994
New Kids on the Block v. New America Pub., Inc.,
971 F.2d 302, 306 (9th Cir. 1992).
Eastwood v. Superior Court,
149 Cal. App. 3d 409
Conclusion
The appellate reversed the judgment of the district court and remand for trial on the claims alleging violation of the California common law right of publicity and section 33044, as well as the claims alleging violation of the Lanham Act.
Full transcript