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Grammarly discovers that right of publicity is a thing.

In 1902, Abigail Roberson sued when she discovered her face printed on flour sacks everywhere without her consent; the case led to one of the first privacy statutes in NY. But AI impersonations are fine, I guess

Album Of The Day Acclaimed #383 Artist: Sonny Rollins Album: Saxophone Colossus Year: 1957 #NowPlaying #AlbumOfTheDay

Last session of #WIPIP2026, and Alex Roberts @lexlanham.bsky.social asks “are we human, or are we brands now?” Or “I curated this look, so I must own it!” - Litigating Personal Brand: Intellectual Property & Construction of the Self

margo bagley & christine haight farley: "when procedure becomes policy: the hidden substantive effects of the design law treaty" is international design law a thing? WIPO has adopted two new treaties, so it might be a thing now! GRATK & RDLT

pantone has a TM in PANTONE & PANTONE MATCHING SYSTEM for color forecasting & services & its chip that it uses to promote colors does it have copyright in its booklets? pre-feist it enjoined another co. from producing similar booklets (facilitated selection/matching)

what role does the standardization of creative information have on the recognition of IP rights, including trademark & copyright, in creative industries?

can brands that standardize creative info make legal claims to those standards? what is the essence of a standard?

proposals, w/ truthfulness as organizing principle: *reimagine failure to function *expand abandonment doctrine *strong duty of candor *expand standing to include consumers

problems w/ current framework: there's a doctrinal gap between false ad & trademark law focus on literal deception leaves space for "license to cheat" & erodes consumer trust in trademarks

ramsey: matter w/ preexisting informational, expressive, or decorative value in an industry or community before it was claimed as a mark should fail to function

so focus on the goods/services (t-shirts or refrigerators?), content of the mark, location or likely location of the mark

or at least let's be clear on the burden of proof--it should be clear & convincing evidence that something is generic if that mean it's going to be fatally unprotectable & "key aspect" needs to go, vs. "immediately convey"--too blurry a test

lorelai ritchie, "question mark (TM)": what if there's no such thing as genericness, only degrees of descriptiveness? it's a spectrum, not an absolute. #wipip26

disckson likes the farley/@LPRamsey proposal: dft would have initial burden of showing use is informational or expressive; burden shifts to plaintiff to show it's a false statement/likely to mislead

stuart semple: believes color marks they shouldn't exist, so makes art materials as cultural critique, not for profit (easy klein blue, tiffany blue) he does understand color trademarks but misrepresents intentionally

rachael dickson @tudorsandtms.bsky.social: "the art of trademark disobedience" #wipip26 dickson argues current fair use tests are often insufficient for protecting speech & expression using trademarks as a form of civil disobedience

3rd parties rely on pantone to ground their TM rights with reference to pantone numbers in their registrations rights seem based on value creation, systemic organization of commons material, gap exploitation through contract law, authenticity & consistency, interoperability

are these booklets really original? does copyright in them give pantone some copyright by extension in the system, which should be part of the public domain? can taxonomies be copyrightable? we have a circuit split on that currently.

With alt text. I’ve…never seen a court talk like this before?

deepa varadarajan kicking off the post-lunch trade secrets panel at #wipip26 with "considering misappropriation's purpose"

kicking off our last #wipip26 panel with felicia caponigri, "a pantone prerogative: defining the privilege to standardize color" how does pantone's mission to standardize (& forecast) color intersect with intellectual property?

trade secret societies! @jeannefromer.bsky.social #wipip26 the psychology & sociology of secrecy are at the core of what's being protected by TS law but the law hasn't done much grappling with it

what does distinctiveness mean? we need to focus on whether a symbol is actually indicating source in the marketplace w/ DRIVE SAFELY, ttab said even though people do associate the phrase w/ volvo, it still isn't functioning as a mark

or maybe we should add a statutory defense for use of a mark other than as a trademark?

"trademark use, failure to function doctrine, & free speech" with @LPRamsey should the US explicitly adopt a tm use requirement for infringement liability? how do we determine whether use is use as a mark? when does a sign fail to function?

zombie marks: resurrected by firms w/ no ties to original producer, using residual goodwill or notoriety--may create consumer mistrust of the trademark system (what are the consequences of consumer mistrust of TM system?)

examples: masking marks: connection b/w mark & product has changed, but the consumer doesn't know, e.g. philip morris changing to altria to avoid negative associations for food products w/ tobacco or "masquerading as the same thing": splenda's change from natural to artificial

"truthmarks," aman gebru *TM owners misuse their marks in ways that conflict w/ TM policy goals *recalibration of current doctrines can create a heightened truthfulness requirement that helps address issue

every category leaks, as @linfordinfo has also argued arbitrary marks smuggle in symbolic, cultural meaning

shd we treat arbitrary marks as presumptively weaker than fanciful? (do we not already?) shd arbitrary marks not be automatically entitled to the broadest scope of protection? cultural screen at registration given the appropriation going on? should we require secondary meaning?

so what? 1. genAI T&C eviscerate copyright owner's exclusivity 2. users exposed to liability risk 3. moot democratic deliberation on copyright law & policy

reps & warranties: most include R&Ws that you have all necessary rights & permissions and won't infringe others' rights by submitting through prompt that's a hook for the indemnification clause, ofc--you indemnify the genAI co for damages they suffer as a result of breach

next on the copyright & AI panel: @apublicgood.bsky.social (andres sawicki) on genAI's IP terms & conditions

justin koo: "direct copyright liability & a licensing mechanism for online platforms" #wipip26

"circuit court judge valentine issued an order in favor of hunter house, requiring better burgers to put up appropriate signage by friday. by monday, BB must put signage over the entrance of the building that is no smaller than the original 'hunter house' sign."

hunter house sues burger join in its old location for vague "total image & appearance" trade dress, citing "distinctive white, flat-roofed building, prominent standalone 'hamburgers' & 'carryout' signage, & a unique interior w/ counter, stools & a grill." www.detroitnews.com/story/entert...

instead of relying on exclusion & destruction, landry argues courts could focus on duty to account for profits and "nemo dat quod non habet"

the use of exclusion and destruction shift the default rules of copyright coownership out of alignment with copyright's normative commitments both reduce access; exclusion also reduces incentive

ben landry: "the rights of joint owners in american copyright law: reframing the default rules" #wipip26

kicking of day 2 of #wipip26 with dustin marlan & "the arbitrary myth" judge friendly in abercrombie treats arbitrary marks as just as inherently distinctive as fanciful ones, but that's based on myth

"you'll boo me when you hear my hypothesis & that's ok" are less educated consumers more likely to be confused?

this seems to be a flaw in a lot of trademark surveys--though many surveys (and studies about surveys) don't track or weight all of these factors

"education, wealth, & weird trademark surveys" with @jakelinford.bsky.social WEIRD = are we oversampling populations w/ western, educated, industrialized, rich, democratic respondents? #wipip26

All because they replaced human beings (who would know you can’t expect to deliver something to a person at 6 a.m.) with some AI agent that knows nothing about how people operate.

Woman comes to US at age 6. Graduates nursing school. Work permit. No criminal record. Snatched and imprisoned by ICE for 6 months now. About to be forced back to Honduras. A life destroyed and one less nurse. Merry Christmas. www.nola.com/news/educati...

Reuters reached out to everyone that Trump or his subordinates singled out publicly for retribution, and reviewed hundreds of official orders, directives and public records. The result: the most comprehensive accounting yet of his campaign of payback. www.reuters.com/investigates...