Weekly IP Buzz for the week ending November 23, 2018

Here’s a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending November 23, 2018.

Chilling Adventures of Sabrina Series Leads to Netflix Suit for Trademark and Copyright Infringement

Netflix made waves in the intellectual property news this month but not its usual reasons. Instead of more news about Netflix’s recent licensing deals or television show wrangling, headlines broke about a recent lawsuit against Netflix regarding one of its original series, Chilling Adventures of Sabrina.

In a recent lawsuit filed by the Satanic Temple, Netflix was sued for both trademark and copyright violations. The Satanic Temple is a New York City-based religions organization that prides itself on protecting any blurring of the separation between church and state in the United States. In other words, they are often a protest group that will protest any type of gesture made by federal or local governments that seem to promote religion.

At the heart of the lawsuit is a statue commissioned by the Satanic Temple that cost about $30,000 and was completed in 2014. Although the group unsuccessfully tried to donate it to a state government, the statue ultimately ended becoming a sort of protest symbol that the group would use in other targeted campaigns.

Netflix inadvertently became involved in the situation when it allegedly copied the statue, full scale, for incorporation into its original series. Having not been contacted for use or licensing rights, the Satanic Temple suspects that a production member of the Chilling Adventures of Sabrina may have simply instigated an Internet search for satanic statutes and ended up having the design department copy the statute wholesale, assuming, wrongly, that its likeness or rights were already in the public domain.

A costly lesson could be learned with the use of the statue in the Chilling Adventures of Sabrina. Creative artists should be aware of the importance of attribution, licensing, and distinction from fair use.

Read more here.

Sensory Marks: Hasbro Trademarks Signature Play-Doh Scent

While the U.S. Trademark Office has long allowed the trademarking of scents and smells as sensory marks, few companies apply to have scents trademarked because the application can be difficult to complete and because few companies find it necessary to enforce such trademarks.

This year, Hasbro made news by filing a trademark application to protect the scent of Play-Doh. Although Play-Doh has been around for over two decades, Hasbro only recently decided to file for federal protection of the product.

Because the trademarking of scents is rare, discussion about the process should be examined. Like all trademarks, the applicant must successfully describe the trademark in protectible terms to the trademark examiner. Basically, Hasbro had to describe the scent in a way that was protectible. In this case, Hasbro described the scent as “a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough.”

Like applications to protect sounds, applications for scents fall under the category of sensory marks. The U.S. Trademark Office (USPTO) defines sensory marks as goods that are not physical, but instead, are a sound, feel, or scent that the applicant wishes to protect. Generally, applicants will protect sensory marks in order to ensure that all aspects of particular intellectual property is protected.

Find the full article here.

Click to read last week's Weekly IP Buzz. View on LinkedIn.

For more posts, see our Intellectual Property Law Blog.

--------

Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and business law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.