Executives at Levi’s concede they missed important fashion trends as the denim industry ballooned over the last several years, but they deny the lawsuits are connected to any downturn in their business.

Instead, they say they are simply trying to preserve their intellectual property. Like pharmaceutical companies that sue generic drug makers over their patents or technology companies that duke it out over who owns the right to microchip designs, Levi’s says it is trying to protect its most valuable asset, its trademarks.

Really?  Would old Mr. Strauss not have continued making jeans if he couldn’t prevent others from mimicking his back pocket design?  Silly me, I thought it was all about the product.  But still, does imitating Levi’s back pocket create confusion?

“It was an original design,” [Steven Shaul, the founder and chief executive of Jelessy Jeans] said. “Why would I use Levi’s stitching? If my jeans sell for $200, I would not knock off $40 jeans from Levi’s.”

Very true.  Does anyone paying $200 for jeans think they’re buying Levi’s?

Alas, it played no music when I plugged my headphones into it, but my confusion was soothed by the tastiness of this pod’s contents.  It’s even funnier to think that the “Frypod” also sounds like “iPod.”  Confused minds may disagree about whether this little dandy tread’s on Apple’s “pod” turf, but I get a kick out of seeing the word “pod” plastered on anything.

Have your own “pod” sighting?   Well please, send it in.

Sure there are many machines out there that use the single-use pods, but they’re all one-cup systems and vary the pods enough so you can only use the manufacturer’s own pods in the machine. And what if you are attached to a favorite brand of java, like Starbuck’s or Dunkin’ Donuts? Make it easy by making it in advance. Make it disposable. Make it in the perfect strength. Make as many cups as you want with one pod. Make it your favorite blend. Make it Perfect Pod.

Apple’s FairPlay certainly does make their pod less than perfect and I’m not sure who’s going to confuse coffee with digital music.

Via BB.

Assuming that the low costs of owning music (purchasing and storage) are actually enabling people to fulfill unrequited desires of building massive collections that can complement any mood, guest, or situation, what does this mean for the status of the artist?

If you would like, please share how many songs are in your library.  I’m rocking it out with 4754, which gets me 13 days without hearing the same song twice.

The TXU mark is the blue one at the top.  It’s so tiny.

Public Citizen is involved in the case and decries TXU’s abuse of trademark law to stifle protected speech (the link also leads to copies of the correspondence between PC, DAR, and TXU).

Since not even a moron in a hurry would think TXU is the source of this protest piece, DAR’s use of the TXU logo should clearly not  be trademark infringement.  From Mattel, Inc. v. MCA Records, 296 F.3d 894, 900 (9th Cir. 2002) (at bottom of page 10488):

The First Amendment may offer little protection for a competitor who labels its commercial good with a confusingly similar mark, but “trademark rights do not entitle the owner to quash an unauthorized use of the mark by another who is communicating ideas or expressing points of view.” L.L. Bean, Inc. v. Drake Publishers, Inc. 811 F.2d 26, 29 (1st Cir. 1987). Were we to ignore the expressive value that some marks assume, trademark rights would grow to encroach upon the zone protected by the First Amendment. See Yankee Publ’g, Inc. v. News Am. Publ’g, Inc., 809 F.Supp 267, 276 (SDNY 1992).  When unauthorized use of another’s mark is part of a communicative message and not a source identifier, the First Amendment is implicated in opposition to the trademark right.”). Simply put, the trademark owner does not have the right to control public discourse whenever the public imbues his mark with a meaning beyond its source-identifying function. See Anti-Monopoly, Inc. v. Gen Mills Fun Group, 611 F.2d 296, 301 (9th Cir. 1979).  (“It is the source-denoting function which trademark laws protect, and nothing more.”).

Dilution works differently and is concerned with free riding on the fame or good will of a well known mark.  However, the Federal Trademark Dilution Act section (A)(4)(B) creates an exemption for “noncommercial use of a mark,” even if dilution exists.  DAR is “diluting” TXU’s mark (ie. using TXU’s trademark to “mischaracterize” it as a polluter), but is doing so in a noncommercial way.  Since DAR’s use is political speech and not commercial, it should fall under the FTDA’s safe harbor.

Via Techdirt.

The case is ACLU v. Gonzales, 98-CV-5591.