Melvin K Silverman Patent and Trademark Lawyer

3M Earplug Lawsuit Update – Combat Arms Earplugs

MKS — Fri, 27 Jan 2023 17:59:38 +0000

3M's Combat Arms Earplugs Lawsuit – What You Need to Know

A 3M Earplug Lawsuit has been settled this year by the Department of Justice for $9.1 million for selling Dual-Ended Combat Arms earplugs to the U.S. Military without disclosing defects that hampered their effectiveness.

The lawsuit alleged that 3M knew that the earplugs could come loose in people’s ears, potentially leading to hearing loss and tinnitus. Here’s what we know about this case and its potential implications for veterans who served between 2003 and 2015.

The Allegations Against 3M

The Department of Justice accused 3M of knowingly selling defective earplugs to the United States military from 2003-2015 without disclosing the design flaw or warning service members about it.

The dual-ended Combat Arms Earplugs, Version 2 (CAEv2), had an unadvertised design defect which caused them to loosen imperceptibly in users’ ears over time, thus reducing their effectiveness at blocking loud noises like gunfire and explosions. According to estimates from the DOJ, nearly 1.6 million pairs of these earplugs were sold by 3M during these 12 years.

A Failed 3M’s Defense Strategy

After numerous unsuccessful attempts to defend itself in federal civil litigation, 3M Company suffered a major setback last month. In an unprecedented move to prevent further resistance from the company, U.S District Judge issued sanctions against it that prohibited arguments like excusing its liability based on the manufacturing of earplugs by the Aearo subsidiary and described their efforts as “brazen abuse” of the legal process after four years had gone by without raising these points earlier.

With the U.S. Court of Appeals for the Eleventh Circuit’s interlocutory appeal to 3M Company underway, Judge Rodgers remains hopeful a resolution can be achieved through negotiations between all parties involved in this lengthy process.

No further global mediation efforts will take place. However, Special Master Randi Ellis is continuing informal meetings with both sides individually to potentially reach individual settlements as they continue down their respective appeals and bankruptcy paths over the years come.

A just result that mutually benefits everyone stands at hand – should it unfold within MDL or on bankruptcy soil depends solely upon negotiation progress made by each side moving forward.

Consequences for Veterans

As a result of using these defective earplugs, many veterans have suffered hearing loss and tinnitus due to exposure to loud sounds during training exercises or combat missions while wearing CAEv2 earplugs.

Some veterans may be eligible for compensation through legal action against 3M if they meet certain criteria established by the National Institute on Deafness and Other Communication Disorders (NIDCD).

For example, individuals must have been issued these items between 2003 and 2015; must have been exposed to loud noises while wearing them; must suffer from some degree of hearing loss or ringing in their ears; and must not currently be receiving any other form of compensation related to their hearing issues.

Veterans who meet these criteria may be entitled to financial compensation from 3M in a separate lawsuit stemming from their use of CAEv2 earplugs during military service.

3 M’s sale of allegedly defective dual-ended Combat Arms Earplugs Version 2 (CAEv2) has sparked a nationwide controversy due to its potentially devastating consequences for thousands of veteran service members who wore them between 2003-2015 without realizing they could be at risk of hearing loss or tinnitus due to a hidden design defect.

If you are one such veteran who was issued CAEv2 earplugs during your military service and now suffer from hearing damage; as a result, you may be entitled to financial compensation through an individual lawsuit against 3M, depending on certain eligibility criteria set by NIDCD. You must contact an attorney as soon as possible so your rights can be protected throughout this process.

Don’t wait – call us at (954) 489-0502, email us at mks@mkspc.com, or chat with us online now at Melvin K. Silverman and Associates to learn about your legal rights and the rightful compensation you deserve. Let’s get started on protecting what is yours!

Jay-Z Sues Australian Author For Trademark And Copyright Infringement Over Children’s Book ‘A B To Jay-Z’

MKS — Thu, 02 Apr 2020 19:58:17 +0000

Jay-Z Sues Australian Author For Trademark And Copyright Infringement Over Children’s Book ‘A B To Jay-Z’

Jay-Z has filed a lawsuit against Australia’s Jessica Chiha, author of 2017 children’s book A B to Jay-Z (illustrated by Alex Lehours) published by her Kickstarter-funded company The Little Homie in 2017. According to The New York Times, the hip-hop artist’s complaint states that the “use of his name, likeness and references to ‘99 problems’ in the book and other Little Homie products is ‘a deliberate and knowing attempt to trade off the reputation and good will’ of the rapper, and uses his intellectual property ‘for their own commercial gain.’” The Little Homie also sells two version of its 99 problems t-shirt.

On the book’s U.S. Amazon listing, which lists the hardcover edition as in stock but the Kindle edition as unavailable, the copy reads in part: “I Got 99 Problems but my children learning their ABC’s ain’t one! This hip-hop inspired book is designed to pump up your child’s alphabet game. Let Jay-Z, Biggie Smalls, Eminem, Pharrell, Snoop Dog and more, teach your little homie their ABCs. Relive some of the greatest Rap, Hip Hop, and R&B musicians of our time, while teaching your children where it’s at, for real.

Help your kids stay on top of their ABC game before they even start school. While exploring this book, they’ll go on a learning adventure, getting an early start on recognizing each letter of the alphabet. Each page features a letter, a hip-hop artist whose name begins with that letter, and a sentence which adorably incorporates one of their song lyrics. This book is a good time for both the biggies and the smalls!”

The listing concludes with, “Any reference contained in this book to musical artists or their works does not constitute or imply the endorsement, recommendation or approval of those artists.”

The book touts its status as a “#1 international bestseller” in the front pages. The New York Times also reported that Chiha defended the title, saying in a statement, “We are unbelievably disappointed to find ourselves caught in a legal battle with someone whose music we love and adore.”

On The Little Homie’s website, a drawing of Jay-Z’s face appears next to the words “Free Delivery See Shipping Page,” alongside drawings of Tupac Shakur and Snoop Dog.

The Little Homie’s online store lists 12 books for sale, including A B to Jay-Z Coloring Book, which features a drawing of Jay-Z as well as other hip-hop artists such as Biggie Smalls, Outkast, Usher, and others. The coloring book’s copy on Amazon (U.S.) reads in part: “If You Solved Your Alphabet Problems, I’m Proud of You Son. Now You Got 98 Problems and Learning to Color is One!” The Amazon listing credits Lola Willow as the coloring book’s author, and Alex Lehours as the illustrator.

The news of the The Little Homie’s book launch was met with criticism back in 2017, when media outlets such as The Root highlighted accusations of cultural appropriation that surfaced on social media related to the book’s release.

On November 1, The Little Homie posted an Instagram video stating “The sequel is coming” with the hashtag #abtojayz.

Now read more about Jay-Z sues…

Error In The Trademark Office Over Tom Brady’s Trademark Application

MKS — Thu, 02 Apr 2020 19:47:53 +0000

Error In The Trademark Office Over Tom Brady's Trademark Application

It is a little unfortunate that the media frenzy over Tom Brady’s trademark application is serving to reinforce numerous public misconceptions about the trademark registration process. So let us briefly put things in perspective, so that businesses with legitimate trademark interests do not needlessly shy away from the system:

A “refusal” by the Trademark Office is more common than not, even for marks which are eventually granted registration.

Registration is not a requirement to trademark rights in any case (a crucial issue, but a route we will not run again right now).

The decision is one decision by one of the randomly assigned attorneys from among the league of literally hundreds of lawyers (over 500 and counting) who work in the Trademark Office and examine new trademark applications. Most often, these lawyers do not make significant mistakes, but with over two million applications currently pending, and hundreds of thousands of new applications filed each year, mistakes in judgment happen. When they do, these types of initial refusals are frequently withdrawn—often by the same lawyer who issued them.

A very substantial percentage of trademark applications are refused in the first examination. Refusals of trademark applications could be based on a finding that the public would likely confuse the new application with a previously existing application or registration. So if a consumer today were to see collectible trading cards, sports trading cards, posters, printed photographs, or t-shirts and shorts featuring the name “Tom Terrific,” they would have to be likely to believe Tom Seaver was the source. Maybe that would happen. But the Trademark Office needs to offer some proof of this hypothesis, not just an unsupported finding by one trademark lawyer.

It does businesses no good—especially those with minimal experience dealing with the Trademark Office—to believe that the system is just that arbitrary. It is not.

This refusal is truly exceptional. Usually, the Trademark Office will refuse registration if an application interferes with another prior registration. Refusals are not typically based on personal judgments sourced from personal knowledge or beliefs. However, the Examiner in this case did not offer any evidence. If this initial Trademark Office refusal were to be challenged or appealed, it would have to almost certainly be overturned, because this refusal is not supported by any facts. It may be a stretch to think any significant percentage of the public today would associate the nickname “Tom Terrific” with a ballplayer who last laced up his spikes with the Red Sox 33 years ago. This refusal is highly exceptional.

The trademark registration system is not simple. But one strike does not make an “out” in the U.S. Patent and Trademark Office any more than on the diamond.

Tom Brady may not pursue this issue because of the negative publicity. He said as much, even well before this refusal was issued. Doubtless he and his team are competitive enough to fight if that is what they want to do. That fight would demonstrate how the trademark registration system can be lengthy and expensive, especially if the Examiner’s first decision needs to be challenged. Many an application has just been left abandoned because the trademark owner is not prepared to, or cannot afford to, fight. In fact, a first refusal is just like a first down play in football. Sometimes, success comes on second down, often on third down and sometimes even on fourth down.

“I don’t think ‘This Sick Beat’ is descriptive of Christmas stockings,’” Sprigman observes.

By the way, the name “Tom Terrific” was the name of a cartoon character, last owned (according to the Trademark Office records) by CBS. No doubt that is where the nickname originated—not with the Mets, White Sox, Reds or Red Sox clubhouse.

Samsung Patent Suggests Galaxy S10 Lite Is Ready For Release

MKS — Thu, 02 Apr 2020 19:37:53 +0000

Samsung Patent Suggests Galaxy S10 Lite Is Ready For Release

Although the Galaxy S10 family was launched in February this year, there are growing signs that Samsung is preparing a ‘Lite’ version of the flagship phone. It is expected to feature a SnapDragon 855, 8 GB of RAM, a 6.7 inch OLED screen, and a triple lens main camera. Now we have a better idea what it could look like.

Eagle eyes at SamMobile have spotted a potential design of the Galaxy S10 Lite in a recently published patent. that “claims the ornamental design for a mobile phone as show and described”. Abhijeet Mishra reports:

“The patent reveals a device that looks exactly like the Galaxy S10+ from the front, with dual front-facing cameras located on the top right edge of the display. At the back, there’s a dual camera setup with its sensors placed vertically in the center and an LED flash to its right, which is exactly how the camera assembly is laid out on a Galaxy S9+. In fact, it looks pretty similar to a Galaxy S8 prototype that Samsung had tested with dual rear cameras back in 2017, although that prototype had its LED flash and heart rate sensor sitting below the two camera sensors.”

As always, just because something is in a patent does not mean that it will reach the retail shelves. That said a claim on a design elements is a much stronger bet than an esoteric camera lens or hinge fixture. There’s also the connection between what is on show in the patent and other leaks around a potential Galaxy S10 Lite.

These include online specs of an as-yet unreleased Galaxy handset (via Galaxy Club), inside sources reporting new model numbers (via SamMobile), and certification by Brazillian authorities (via GSM Arena).

The question now is not over model numbers, but over branding. The assumption by the geekerati is that this is a ‘Lite’ version of the Galaxy S10 family, presumably launching in time for the holiday season. But it doesn’t sync up with the launch schedules of the Galaxy S family.

To my mind this could be a ‘high-end’ handset in Samsung’s Galaxy A series of handsets. While the ‘A’ handsets do not get as much love from the geekerati, they are a key part of Samsung Mobile’s volume strategy. Bringing out a strong Galaxy A handset just before Christmas will boost sales but preserve the marketing power of the S Class.

Or are the weaker sales of the S Class needing a bit of a boost with a festive special Galaxy S10 Lite?

Delta Airlines Sues Marriott for Trademark Infringement

MKS — Thu, 02 Apr 2020 18:57:48 +0000

Delta Airlines Sues Marriott for Trademark Infringement

Los Angeles – Delta Air Lines, Inc. recently sued Marriott International, Inc. for trademark infringement for utilizing the DELTA trademark in relation to hotels. Marriott purchased the Canadian Delta hotel chain in 2015 and has been expanding its Delta hotels throughout Canada and now into the U.S. Delta claims that with a recent Marriott rebranding they are now even copying the designs and color schemes of Delta’s logo.

Delta is claiming that Marriott has completely disregarded Delta’s trademark rights to gain commercial benefit from travelers that are looking for a hotel while on the road. Delta is obviously a significant player in the airline industry with millions of travelers worldwide flying Delta every single day. While walking through an airport, it is a guarantee that you have seen some aspect of DELTA branding. The Delta name, logo, branded colors and fonts, and advertisements are found everywhere in and around airports. The company is also associated with a wide range of travel-related services, credit card reward programs, hospitality services, and much more outside of the travel industry like entertainment venues, sports teams, and charitable organizations. Delta has alleged that Marriot is using the Delta trademark on airport transportation which is adding to the confusion.

Delta states that Marriott made calculated strategies to mimic the majority of Delta’s trademarks for the Delta Hotels. Marriot has opened what Delta has term “airport hotels” branded under the DELTA trademark, and it has blurred the lines for consumers and especially airline travelers. Delta is concerned that consumers will almost certainly believe that the hotel chain is aligned with the airline in some way.

According to the court dockets, Delta has become the leading airline company in revenue and operates out of all significant travel hubs in the United States. Delta maintains that the hotel chain is not only an infringement on the brand but could be especially confusing for Delta customers who receive airline rewards through their loyal customer benefits. If Delta consumers believe that their rewards are aligned with the Marriott chain, then confusion in the marketplace will only get worse.

Thus far this seems to be a head scratcher as to what Marriott is thinking here. With upwards of 30 hotel brands under the Marriot umbrella, it seems that attempting to expand the Delta hotel chain is a bad idea. If Delta wins the case, Marriott will likely have to rebrand and may also be on the hook for the damages caused by the infringement.

Lawsuit: Target’s Good & Gather line infringes the Trademark of Georgia woman’s business

MKS — Mon, 25 Nov 2019 00:17:12 +0000

Atlanta — A Georgia woman has filed a federal lawsuit against...

Target claiming the retail giant stole her trademark when it launched its Good & Gather flagship food brand in September.

Emily Golub, founder of the Atlanta-based Garnish & Gather, said the name, logo and products sold in Target’s Good & Gather line are too similar to the business name she trademarked in 2014 and could create confusion in the market.

Golub said she provided Target with a notice of trademark infringement in August but the retailer proceeded with the launch of Good & Gather at its more than 1,800 locations across the country.

Golub created Garnish & Gather in 2013 with a goal of connecting customers with locally grown foods and Atlanta chefs and teaching creative cooking techniques. The company sells meal kits, local groceries and prepared foods.

Target’s Good & Gather includes products such as bagged salads, cheese, granola, sparkling water, deli-fresh entrees and sides, frozen fruit, fresh vegetables, chips and nutrition bars. The new food line is part of the company’s business strategy to increase sales and distinguish the retailer from its rivals.

Golub said she identified 40-50 products that overlapped between her business and Good & Gather. Both companies also use a leaf motif in their branding and logos, she said.

“To me there are too many coincidences here for this to not have inspired the design of their brand,” she said. “It was very upsetting when we first found out about this. To take our brand is taking everything we have built.”

Target spokeswoman Danielle Schumann said in a statement the retailer has a “deep appreciation and respect for trademarks.”

“We’re aware of this lawsuit and are confident that Target’s brands, including Good & Gather, are distinctive in the marketplace,” Schumann said. “We’ve shared that feedback with Garnish & Gather and will continue to defend these claims through the legal process.”

Golub filed a complaint in the U.S. District Court Southern District of New York on Nov. 8. It seeks a temporary restraining order to stop the sale of food and beverage products under the Good & Gather brand. Attorneys for Target have filed a motion to transfer the case to Minnesota where the company is based.

Golub said Target offered her “tens of thousands of dollars” to help with search engine optimization for Garnish & Gather but she declined.

“I don’t need that,” she said. “I need to preserve my brand.”

Golub said Garnish & Gather is profitable and has more than 800 weekly meal kit subscribers, but Good & Gather jeopardizes the growth of her business because she can’t match Target’s resources. The company expects Good & Gather to be a multi billion-dollar brand with more than 2,000 products by the end of 2020.
This article originally appeared on USA TODAY: Georgia woman sues Target over trademarked Good & Gather brand

Can Taylor Swift Really Trademark “This Sick Beat”? Yes, and Here’s Why

MKS — Sun, 24 Nov 2019 19:23:01 +0000

The internet almost exploded Thursday over news that pop star...

(and freshly minted New Yorker) Taylor Swift has trademarked the phrases “This Sick Beat,” “Nice to Meet You. Where You Been?,” and “Party Like It’s 1989,” among others.

Actually, that’s not quite true. Contrary to many reports, Swift has not yet been granted any of these trademarks—she’s merely applied for them and is awaiting approval by the U.S. Patent and Trademark Office.

But we still had a lot of questions, like “Can you really trademark a greeting?,” “Would Taylor actually sue me? We’re like besties…,” and “Can I trademark my own ridiculous catch phrases?”

For answers to these pressing issues, we called Christopher Sprigman, a professor at NYU Law School specializing in trademark law, and a man way too knowledgeable and respected to address this nonsense. But instead of hanging up the phone, the professor kindly took us on a magical tour through some of the basic rules of intellectual property.

Turns out, you can pretty much trademark anything you want as long as you follow a few guidelines. First, your trademark can’t be a “generic” term, i.e. the commonly used name of the product you’re trying to sell. An obvious example is that no one can get a trademark for the exclusive use of the word “salt” to sell salt shakers.

Next, your trademark can’t be something that’s entirely descriptive. So, to use Sprigman’s example, you can’t trademark “salty” to use on boxes of Saltine-style crackers. That wouldn’t be fair to someone else who wants to tell customers their snack is salty, too.

But if your trademark is “arbitrary” (meaning it has no connection with the good or service it’s being affixed to) or “fanciful” (meaning it has no inherent meaning at all, like Kodak) you’re generally in the clear.

That’s why, for example, Apple can trademark the word “Apple” to sell computers. (The company couldn’t, on the other hand, trademark Apple brand apples because that would probably be considered both generic and descriptive.)

Just as the word Apple is arbitrary when applied to a laptop, Taylor Swift’s lyrics are equally arbitrary when placed on a Christmas stocking or a “non-medicated preparation for the care of skin”—two of the products that T-Swift has applied for trademarks on.

“I don’t think ‘This Sick Beat’ is descriptive of Christmas stockings,’” Sprigman observes.

The professor also thinks Swift is ahead of the curve when it comes to trademarking random song lyrics. The rise of streaming makes it increasingly difficult for artists to monetize their music, leaving musicians to look for new ways to make money. “The music industry isn’t dying,” says Sprigman, “the music industry is changing. And different revenue sources are coming to the fore, and one of them is merchandise.”

That’s especially true for Taylor Swift, who recently removed her music from Spotify, the largest streaming music provider. “She’s no dummy,” Sprigman adds. “This strategy for her makes quite a bit of sense.”

So it looks like Swift is going to be fine here. But what about you and me? Can anyone just trademark random symbols and phrases?

The answer is probably yes, assuming you choose a phrase that’s distinctive enough. And as long as it’s not descriptive or generic and no one else has trademarked it or is already using it commercially, you probably will be in the clear. One Brooklyn artist even managed to trademark the pi symbol with a period after it.

Basically, all you need to do is pay an electronic filing fee ($225 to $325, plus maintenance fees), stay within the rules we’ve described, and you can be just like Taylor.

Except not famous or talented. But you both can at least sell Christmas stockings with a trademarked thing on them. And that’s something. Right?