The Answer My Friend Is Blowing In The Wind

by Debby Winters

The use of wind turbines to power homes and small businesses has been steadily increasing over the past few years. While much of the growth can be attributed to the increase in popularity of alternative green energy sources, the 30 percent tax credit offered by President Obama’s $787 billion economic stimulus package has further encouraged consumers interested in this alternative energy source to purchase turbines to power their homes or small businesses. Formerly the credit could not exceed $4,000 but the government recently sweetened the pot by removing the credit cap so the amount of the tax credit is now based on the total installed cost of one or more wind turbines.  If you aren’t familiar with wind turbines, simply put, a wind turbine is a device that converts energy from the wind into energy that can be used to produce electricity.
Forecasts indicate that this tax credit, combined with the increased popularity of green energy, has the potential to grow the small-turbine market by 40 to 50% annually and companies who manufacture wind turbines are ready to fight for that market share.  General Electric (GE),who controls about 40% of the US wind turbine market, and Mitsubishi Heavy Industries (MHI) have been in a tousle that is reaching gale-force over wind turbine patents.  MHI was ordered to pay $170 million in damages after a jury found the company infringed on one of GE’s wind turbine patents.  The suit was filed after GE lost a case at the U.S. International Trade Commission (ITC) to block MHI turbine imports based on perceived patent infringement.

More and more people catching wind of this emerging alternative energy source for powering homes or businesses could mean big revenue for turbine manufacturing companies.  The struggle between GE and MHI for these patent rights is sure to continue.

 

 

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Start-Ups ‘Shame’ Bigger Companies as a New Tool in Trademark Fights

by Debby Winters-

As the economy recovers and competition heats up, trademark disputes are on the rise. According to U.S. district court records, trademark lawsuits rose 5% in 2011 to an all time high of to 3,692. These costly scuffles can be difficult for start-ups with limited resources. But a growing number of small business owners have begun fighting back using a tactic lawyers describe as “shaming,” or exposing what they view as baseless trademark infringement threats on the Web or through social-networking websites such as Facebook and Twitter.

The strategy has been useful in providing entrepreneurs with negotiating leverage. Wendy Seltzer, a Yale Law School Fellow founded the website Chillingeffects.org for just such a purpose.  The site will collect cease-and-desist letters in trademark disputes so the notices are posted online. But not everyone is convinced that social media can really help to deter big corporations from coming after the smaller entrepreneurs. Some feel that it won’t really deter the big corporations because after all,  intellectual property laws require them to be aggressive—even against minor infractions—or risk weakening the scope of their protections. Trademark law, as well as patent law requires the holder of the trademark or patent to go after others who are using it illegally.

Also, many trademark infringement claims raise legitimate concerns and shaming tactics can backfire by highlighting infringing conduct. However, social media gives defendants a new way to try to embarrass trademark owners who may be overreaching.

A recent example of this use of social media brings us to the story of a T-shirt maker in Vermont who received a cease-and-desist letter from Chick-fil-A Inc. when he began to use the slogan “Eat More Kale.” Of course we all know that the famous trademark slogan “Eat Mor Chikin” belongs to Chick-fil-A. When The T-shirt owner received the letter, he not only created a Facebook page and an online petition, which has several thousand supporters—including the governor of Vermont, but by adding a “donate” link, he has already raised more than $10,000 in his defense against giant Chick-fil-A. https://www.facebook.com/pages/Support-Eat-More-Kale/140912602685987

Sometimes customers use social media to shame bigger companies on behalf of a local business they patronize. In 2010, General Mills, Inc., holder of the Pillsbury Dough Boy trademark, sent a cease-and-desist letter to a Salt Lake City, Utah, baker then using the name My Dough Girl. One of her customers was so upset; he created a protest page on Facebook that attracted more than 2,000 fans in eight weeks. https://www.facebook.com/my.dough.girl.vs.pillsburycorporation

If these events had happened 10 years ago these stories would have been very different.  And many of the folks who turn to social media in cases like this say that they rarely used Facebook or Twitter before the dispute arose.

And while some small companies use this approach of using social media to shame these large companies into backing off, not all do. Recently in my hometown of Fayetteville, Arkansas, several businesses received letters from big companies. A woman who prepares organic, vegan food for customers who pick it up once a week and calls her business Lean Green Cuisine, received a letter from Nestle, the company that owns Lean Cuisine frozen foods, asking if she would be willing to change the name of her business. At first she was not willing to do so but eventually she gave in because she did not want to expense of fighting a big company like Nestle. Dairy Queen recently filed suit in federal court against the Northwest Arkansas business J.J.’s Grill over the use of the term “grill-N-chill.” Dairy Queen holds the trademark for the term “grill and chill.” Neither of these companies set up Facebook pages or posted on Chillingeffects.org. This must happen every day, but what doesn’t happen every day is the use of social media to fight back. But maybe it should.

I don’t know whether there is any trademark infringement in any of these stories. The crux of any actual claim is whether the use of the name or slogan creates customer confusion and whether there is a loss of profit from this confusion. Other factors are how long the two brands have existed and if the second brand would dilute the value of the existing brand. As in all areas of law the facts speak for themselves. But maybe in these cases, social media is doing a little of the talking for them.

Do Products called “Navajo” or “Navaho” Make You Think They Were Made In The Navajo Nation?

Trademark registration is all about customer confusion. If you saw a product called Navajo or Navaho, would you think it was made in the Navajo Nation? The Navajo Nation is arguing that you would. It has sued Urban Outfitters alleging trademark violations and violations of the federal Indian Arts and Crafts Act. This Act makes it illegal to sell arts or crafts in a way to falsely suggest they are made by American Indians when they are not. The Navajo tribe has at least 10 registered trademarks on the Navajo name.

“The fame or reputation of the Navajo name and marks is such that, when defendant uses the ‘Navajo’ and ‘Navaho’ marks with its goods and services, a connection with the Navajo Nation is falsely presumed,” the lawsuit states.

Urban Outfitters set off a firestorm of criticism last year with its line of Navajo-branded clothing and accessories — particularly underwear and a liquor flask, which the tribe said was “derogatory and scandalous,” considering the sale and consumption of alcohol is banned on the reservation that spans parts of northeast Arizona, southeast Utah and northwest New Mexico. The company removed the products from its website after acknowledging receipt of the cease and desist letter from the Navajo Nation.

The clothing boutique’s website features several pieces of jewelry labeled vintage “Navajo” with turquoise stones and silver. A description for a handmade cuff says it originally was sold at a trading post, and has etched arrow detailing with a “sterling” stamp on the back.

Urban Outfitters had stated that it has no plans to alter its products.  Urban feels it is just interpreting trends and will continue to do so. “The Native American-inspired trend and specifically the term ‘Navajo’ have been cycling thru fashion, fine art and design for the last few years” spokesman for the company said

This isn’t the first time the Navajo Nation has asserted its trademarks. The tribe successfully forced the cancellation of a “Navaho” trademark last year that was used by a French company doing business in the United States. The tribe argued the name was phonetically identical and infringed on its trademark. The tribe has identified about two dozen companies it believes are violating the Navajo trademark. Would you be confused by a product called “Navaho” and think that it was a product made by the Navajo Nation?

-Debby Winters