US Copyright Group (“USCG”) is a newly established company which, like Las Vegas’ own (and now infamous) Righthaven, seeks to enforce copyright rights through the filing of mass lawsuits. The company, which purports to represent the copyright interests of motion picture producers and distributors, grabbed news headlines this year with its mass lawsuits against “Doe” individuals suspected of illegally downloading movies using bittorent. See articles here, here, and here.
USCG now finds itself facing a lawsuit . . . in the trademark realm. On October 11, 2010, a company named Media Copyright Group, LLC (“MCG”) filed a declaratory judgment action against Legacy 21, LLC (“Legacy”), in the U.S. District Court for the Northern District of Illinois. See Media Copyright Group, LLC v. Legacy 21, LLC, Case No. 10-cv-06498 (N.D. Ill.). A copy of the complaint can be downloaded here.
According to the complaint, Legacy does business using the name USCG under a purported license from the owners of the registered (on the Supplemental Register) service mark US COPYRIGHT GROUP for “Providing worldwide copyright enforcement and protection services, namely, assisting copyright holders prevent copyright infringement and recover losses due to copyright infringement”) (“COPYRIGHT” disclaimed), which is jointly owned by two LLCs, Screaming Eagle LLC and Red Eagle LLC [ed.—hmm, joint ownership?].
Interesting sidenote, the trademark applicants stated that the term “US” in the mark is intended to mean the pronoun that is the objective form of "we" rather than implying an association with the United States (U.S.) -- and argument that the PTO rejected in part based on the fact that the mark as used on the speciment and on the applicants' website indicated that the term “is used to indicate the United States not the object case of 'we' . . . applicant consistently uses the term in upper cases rather than 'Us' or 'us.'” [ed.—oops. Trademark Lesson -- always review your client's website before making any assertions like this on the client's behalf.] (Would also be interesting to know if when you contact USCG's offices, do they call themselves the “Us Copyright Group” or the “U S Copyright Group”? Of course, try finding a contact number for USCG online – very clandestine organization with most roads leading back to USCG’s counsel, Dunlap, Grubb & Weaver, PLLC.)
MCG, operating under the name Media Copyright Group, also provides copyright-related services to adult entertainment media companies On October 8, 2010, counsel for Legacy sent MCG a cease and desist letter alleging that MCG’s use of the name Media Copyright Group constituted trademark infringement of Legacy’s trademark rights to the name US Copyright Group and that MCG’s registration of the domain name http://www.mediacopyrightgroup.com/ constituted cybersquatting. Legacy demanded that MCG cease doing business under the name Media Copyright Group and pay Legacy $25,000 [ed.—interesting choice of dollar amount].
MCG, not missing an opportunity to gain the home court advantage (and probably recognizing that if it did not act fast, USCG would not hesitate to file its own legal action given its record of filing lawsuits), immediately filed the instant action against USCG seeking a declaration that its use of name Media Copyright Group and the website http://www.mediacopyrightgroup.com/ did not infringe USCG’s trademark rights.
MCG’s complaint also includes a cause of action for cancellation of the US COPYRIGHT GROUP Supplemental Registration based on purported fraud on the U.S. Patent and Trademark Office – although the supposed fraudulent statements focused upon in the complaint appear to be arguments that the mark was not descriptive or generic. Yet, in that same office action, the mark was amended to be registered on the Supplemental Register instead of the Principal Register. Thus, the PTO, by allowing the mark to issue of the Supplemental Register, clearly did not rely upon such fraudulent statements regarding the mark’s non-descriptive nature in allowing the mark to register. Indeed, the fact that the mark did not register on the Principal Register is further evidence that the mark is merely descriptive and USCG must rely upon its common law trademark rights in taking any action against potential infringements (including having to show some degree of acquired distinctiveness for its admittedly descriptive mark). (For some background regarding supplemental registrations, see INTA’s article entitled “U.S. Trademark Registrations: Principal Register vs. Supplemental Register”; see also prior blog posts here and here).
Does it surprise anyone that a company that has no qualms in filing mass copyright infringement lawsuits would seek to aggressively enforce its own trademark rights, however extremely weak such trademark rights may be? Now that MCG has called USCG’s bluff and gone on the offensive, how much longer will USCG want to continue to fight what is almost certainly a losing battle? A lot may depend on MCG’s willingness to fight its battle (as many of us know, it’s not enough to be legally right, one must have the financial resources to prove such in court). One wonders if USCG now regrets asserting such rights in the first place.
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