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PostPosted: Mon Apr 16, 2018 6:53 pm 
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Paradigm Karaoke wrote:
JimHarrington wrote:
I don't think it's the same thing. There's a lot more to PEP's theory of consumer confusion. For one thing, it's not "an SC song." It's dozens of SC songs, night after night, largely to the exclusion of other brands, when they haven't paid a dime for that content.

don't you mean "when they haven't paid for permission to use the content that they paid for"?


No, I meant exactly what I said.


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PostPosted: Mon Apr 16, 2018 7:09 pm 
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Elementary Penguin wrote:
JimHarrington wrote:
There's a lot more to PEP's theory of consumer confusion. For one thing, it's not "an SC song." It's dozens of SC songs, night after night, largely to the exclusion of other brands, when they haven't paid a dime for that content.
So somehow the consumer is more apt to be confused about who the host works for if the content wasn't paid for? But if the content was properly paid for, then the consumer somehow knows the host does NOT work for PEP? What kind of magic is this? Do you confuse apples with oranges often?


I'll explain this again since you didn't seem to get it the first 100 times.

Let's say there's a KJ who plays a 4-hour show at a venue. During that 4-hour show, he plays 60 songs. 50 of them are SC songs that he pirated off an IRC channel or some other source. Over the course of the night, he puts the SC logo up on his monitor somewhere between 100 and 120 times (since the logo comes up in the middle of some songs).

Now, here's what the law says: The SC logo is supposed to indicate Phoenix as the source of karaoke entertainment services. In other words, legally, as a matter of law, when that logo shows up on the screen 100 times a night, it's signalling to the consumer that "Phoenix is either providing these services or standing behind them through some sort of sponsorship, affiliation, or approval." That is what a trademark or service mark does.

The consumer is supposed to be able to take that at face value.

But, in reality, Phoenix has absolutely nothing to do with that show. The KJ isn't Phoenix's licensee. He's never bought a SC product at all. Phoenix isn't actually standing behind that show at all. So, any consumer who takes the display of the logo at face value, AS THE LAW SAYS THEY ARE SUPPOSED TO DO, is being deceived. And that deception is what the Trademark Act is supposed to prevent.

This is not difficult, except for two things: (1) People with a pro-piracy agenda have bent this argument into something it's not, like claiming that Phoenix expects karaoke patrons to believe that the KJ works for Phoenix. That's never been an argument we made (and by "we" I mean me when I was working for Phoenix, and everyone else who has worked for Phoenix). I agree that it would be ridiculous to claim that. The deception is in the use of Phoenix's trademark in connection with something Phoenix has nothing to do with.

What if one of your competitors decided they liked the name you use, and undercut you on price and started putting on shows at one of your (former) venues using your name? Don't you think you'd be pretty pissed about that, even if everybody knew it wasn't your show anymore, and nobody thought the competitor was "working for you"?


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PostPosted: Mon Apr 16, 2018 8:00 pm 
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JimHarrington wrote:
Elementary Penguin wrote:
JimHarrington wrote:
There's a lot more to PEP's theory of consumer confusion. For one thing, it's not "an SC song." It's dozens of SC songs, night after night, largely to the exclusion of other brands, when they haven't paid a dime for that content.
So somehow the consumer is more apt to be confused about who the host works for if the content wasn't paid for? But if the content was properly paid for, then the consumer somehow knows the host does NOT work for PEP? What kind of magic is this? Do you confuse apples with oranges often?


I'll explain this again since you didn't seem to get it the first 100 times.
I got if just fine the first 99 times. It's in that 100th iteration you have compounded two entirely separate matters, implying in the last way you worded it that there is a correlation between your hypothetical consumer confusion over service affiliation and piracy. But the two things are not really interrelated. You base potential confusion on frequency of logo displayed -- fair enough and for a moment let's take that as a given. If the consumer sees the SC logo 50 times in one night, how is it any different if the tracks were legally purchased or not? The logo is the same, whether the host is playing illegally downloaded tracks, or legally purchased original discs. Piracy and service mark confusion are two totally separate things. If the pirate is confusing the consumer by using a preponderance of SC tracks, then so is the legal host. This tactic you're advocating is disingenuous, as it's asking the courts not for a weapon to just use against pirates, but a weapon that could be abused to leverage extorted fees from ANY host using SC product, including legal ones. Then you insult the legal hosts who might oppose such a weapon by calling us pro-piracy. How are you going to regain the trust and cooperation of legal hosts if you openly plot against us and call us names? The obvious answer to that is that you don't care about us at all. Terrible marketing strategy if you want to get back into the production business, isn't it?


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PostPosted: Tue Apr 17, 2018 6:43 am 
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Elementary Penguin wrote:
If the consumer sees the SC logo 50 times in one night, how is it any different if the tracks were legally purchased or not?


If the tracks were legally purchased, then the use of the logo correctly indicates the affiliation created by the purchase of the tracks, and there is therefore no confusion.

Elementary Penguin wrote:
This tactic you're advocating is disingenuous, as it's asking the courts not for a weapon to just use against pirates, but a weapon that could be abused to leverage extorted fees from ANY host using SC product, including legal ones.


SC has NEVER "leveraged extorted fees" from anyone, and especially not from hosts who legally use SC products. On the exceptionally rare occasions when SC sued someone who actually had 1:1 correspondence, that host got a free certification after demonstrating ownership of the discs.

Elementary Penguin wrote:
Then you insult the legal hosts who might oppose such a weapon by calling us pro-piracy. How are you going to regain the trust and cooperation of legal hosts if you openly plot against us and call us names? The obvious answer to that is that you don't care about us at all. Terrible marketing strategy if you want to get back into the production business, isn't it?


I'm not a part of SC anymore, as I have repeatedly said. I will say this, however: If you don't want to be called "pro-piracy," stop supporting piracy. When you accuse SC of doing something it has never done—as you did above—to try to undermine the legitimacy of what it has done in opposition to pirates, that is "supporting piracy," by definition. You know that what you said wasn't true, and you said it anyway. If you genuinely oppose piracy, stop lying about what SC does to try to stop it.


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PostPosted: Tue Apr 17, 2018 6:50 am 
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8) No logo no confusion, move along nothing to see here. I'm all for not supporting pirates small or large Jim. It still hasn't been explained how you can represent a client in court and still not be associated,or be part of them? If you figure that one out you should tell Trump's lawyer and see how far that goes with Mueller.


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PostPosted: Tue Apr 17, 2018 11:29 am 
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The Lone Ranger wrote:
8) No logo no confusion, move along nothing to see here. I'm all for not supporting pirates small or large Jim. It still hasn't been explained how you can represent a client in court and still not be associated,or be part of them? If you figure that one out you should tell Trump's lawyer and see how far that goes with Muller.

To be fair he did state when he made the announcement he was leaving them that there were a handful of active open cases that he would continue to case close.

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PostPosted: Tue Apr 17, 2018 1:04 pm 
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JimHarrington wrote:
Elementary Penguin wrote:
If the consumer sees the SC logo 50 times in one night, how is it any different if the tracks were legally purchased or not?


If the tracks were legally purchased, then the use of the logo correctly indicates the affiliation created by the purchase of the tracks, and there is therefore no confusion.


You didn't acquire the service mark for Sound Choice until years after they stopped producing discs. The vast majority of discs sales occurred long before your service mark. Those sales were not under an affiliate relationship, but rather a customer relationship.
When we purchased our Sound Choice discs we weren't purchasing with any affiliation in mind, nobody including Sound Choice/Slep-Tone was running Sound Choice shows, and PEP didn't exist.

The First Sale Doctrine allows us to use our discs in whatever manner we choose without forming any affiliations no matter where or how often we use them.
In fact, if we choose to license use of our discs to other KJs with the stipulation they use them as the first option to any song requests we still would not be affiliated with PEP in any way. It appears we could even shift those tracks to a flash drive as their "shifting agent" while holding the originals in boxes in the trunks of our cars for safe keeping without consequence.

Your Three card Monty game with trademark law just isn't working when examined by a court.

When people go to a sports bar there is no reasonable assumption that the bar is affiliated with the NBA, or NFL or whatever league's games are playing on 90% of the TVs.

When I take the kids to see the latest Disney movie at the theater, and the Disney logo is the only one that appears on the screen, even in the previews, we still don't assume we are at a Disney theater.

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PostPosted: Tue Apr 17, 2018 1:15 pm 
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earthling12357 wrote:
You didn't acquire the service mark for Sound Choice until years after they stopped producing discs. The vast majority of discs sales occurred long before your service mark. Those sales were not under an affiliate relationship, but rather a customer relationship. When we purchased our Sound Choice discs we weren't purchasing with any affiliation in mind, nobody including Sound Choice/Slep-Tone was running Sound Choice shows, and PEP didn't exist.


First, a customer relationship IS an affiliate relationship.

Second, you are incorrect in stating that Slep-Tone wasn't running Sound Choice shows. In fact, Slep-Tone provided karaoke entertainment services from the beginning of its existence. The fact that it did not obtain a trademark registration until 2012 is irrelevant; rights in a trademark begin to accrue with use, not registration.

Third, the service mark registrations were obtained in early 2012. Slep-Tone ceased selling CD+G discs in late 2014 or early 2015, so even under the extremely restrictive definition you're using, you're still wrong.

earthling12357 wrote:
The First Sale Doctrine allows us to use our discs in whatever manner we choose without forming any affiliations no matter where or how often we use them.


You're welcome to use the discs as you see fit.

earthling12357 wrote:
In fact, if we choose to license use of our discs to other KJs with the stipulation they use them as the first option to any song requests we still would not be affiliated with PEP in any way. It appears we could even shift those tracks to a flash drive as their "shifting agent" while holding the originals in boxes in the trunks of our cars for safe keeping without consequence.


Nope. You might have the right under copyright law, but you do not have that right under trademark law.

earthling12357 wrote:
When people go to a sports bar there is no reasonable assumption that the bar is affiliated with the NBA, or NFL or whatever league's games are playing on 90% of the TVs.


Actually, that is a reasonable assumption, because sports bars that show sporting events are required to pay a licensing fee to do so. If they don't, they can be sued, and they frequently are.

earthling12357 wrote:
When I take the kids to see the latest Disney movie at the theater, and the Disney logo is the only one that appears on the screen, even in the previews, we still don't assume we are at a Disney theater.


Again, not a "Disney theater," but a theater that is authorized to show Disney movies. The showing of that logo legally indicates that what is being presented is an authorized performance. If a theater decided to show bootleg Disney movies, how long do you think it would take Disney to come after them, once the Disney found out about it?


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PostPosted: Tue Apr 17, 2018 1:42 pm 
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Lonman wrote:
To be fair he did state when he made the announcement he was leaving them that there were a handful of active open cases that he would continue to case close.



8) Even so Lonnie, in closing a handful of active cases,you do have to talk with your client, you would have to associate with them. Jim would have to sever completely his dealings with PEP/SC, in order for his lack of association to ring completely true, at least in my opinion. The only reason I feel he maintains lack of association is to appear more objective than he really is.


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PostPosted: Tue Apr 17, 2018 1:54 pm 
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JimHarrington wrote:
earthling12357 wrote:
You didn't acquire the service mark for Sound Choice until years after they stopped producing discs. The vast majority of discs sales occurred long before your service mark. Those sales were not under an affiliate relationship, but rather a customer relationship. When we purchased our Sound Choice discs we weren't purchasing with any affiliation in mind, nobody including Sound Choice/Slep-Tone was running Sound Choice shows, and PEP didn't exist.


First, a customer relationship IS an affiliate relationship.

Second, you are incorrect in stating that Slep-Tone wasn't running Sound Choice shows. In fact, Slep-Tone provided karaoke entertainment services from the beginning of its existence. The fact that it did not obtain a trademark registration until 2012 is irrelevant; rights in a trademark begin to accrue with use, not registration.

Third, the service mark registrations were obtained in early 2012. Slep-Tone ceased selling CD+G discs in late 2014 or early 2015, so even under the extremely restrictive definition you're using, you're still wrong.

earthling12357 wrote:
The First Sale Doctrine allows us to use our discs in whatever manner we choose without forming any affiliations no matter where or how often we use them.


You're welcome to use the discs as you see fit.

earthling12357 wrote:
In fact, if we choose to license use of our discs to other KJs with the stipulation they use them as the first option to any song requests we still would not be affiliated with PEP in any way. It appears we could even shift those tracks to a flash drive as their "shifting agent" while holding the originals in boxes in the trunks of our cars for safe keeping without consequence.


Nope. You might have the right under copyright law, but you do not have that right under trademark law.

earthling12357 wrote:
When people go to a sports bar there is no reasonable assumption that the bar is affiliated with the NBA, or NFL or whatever league's games are playing on 90% of the TVs.


Actually, that is a reasonable assumption, because sports bars that show sporting events are required to pay a licensing fee to do so. If they don't, they can be sued, and they frequently are. Forget about the pro fees the venue pays?

earthling12357 wrote:
When I take the kids to see the latest Disney movie at the theater, and the Disney logo is the only one that appears on the screen, even in the previews, we still don't assume we are at a Disney theater.


Again, not a "Disney theater," but a theater that is authorized to show Disney movies. The showing of that logo legally indicates that what is being presented is an authorized performance. If a theater decided to show bootleg Disney movies, how long do you think it would take Disney to come after them, once the Disney found out about it?


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PostPosted: Tue Apr 17, 2018 2:04 pm 
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jdmeister wrote:
earthling12357 wrote:
When people go to a sports bar there is no reasonable assumption that the bar is affiliated with the NBA, or NFL or whatever league's games are playing on 90% of the TVs.


Actually, that is a reasonable assumption, because sports bars that show sporting events are required to pay a licensing fee to do so. If they don't, they can be sued, and they frequently are. Forget about the pro fees the venue pays?
JD, Wouldn't that still be considered a licensing fee?

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PostPosted: Tue Apr 17, 2018 2:30 pm 
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jdmeister wrote:
JimHarrington wrote:
Actually, that is a reasonable assumption, because sports bars that show sporting events are required to pay a licensing fee to do so. If they don't, they can be sued, and they frequently are. Forget about the pro fees the venue pays?


PRO fees have zero to do with sports. Your friendly neighborhood sports bar has to pay for the right to show sporting events, and those licenses include the right to display both the copyrighted content and the associated trademarks.

As far as PRO fees are concerned in the karaoke context, they cover publishers' rights only. They don't cover producers' rights at all, nor do they cover any trademarks that might be displayed.


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PostPosted: Tue Apr 17, 2018 2:31 pm 
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Lonman wrote:
The Lone Ranger wrote:
8) No logo no confusion, move along nothing to see here. I'm all for not supporting pirates small or large Jim. It still hasn't been explained how you can represent a client in court and still not be associated,or be part of them? If you figure that one out you should tell Trump's lawyer and see how far that goes with Muller.

To be fair he did state when he made the announcement he was leaving them that there were a handful of active open cases that he would continue to case close.


This assumes, of course, that I give a flying f*** what The Lone Ranger thinks. I don't.


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JimHarrington wrote:
earthling12357 wrote:
You didn't acquire the service mark for Sound Choice until years after they stopped producing discs. The vast majority of discs sales occurred long before your service mark. Those sales were not under an affiliate relationship, but rather a customer relationship. When we purchased our Sound Choice discs we weren't purchasing with any affiliation in mind, nobody including Sound Choice/Slep-Tone was running Sound Choice shows, and PEP didn't exist.


First, a customer relationship IS an affiliate relationship.


Yes there is an affiliation, but not in the sense you are using it.
The relationship with the customer is not a continuing relationship without subsequent purchases.

JimHarrington wrote:
Second, you are incorrect in stating that Slep-Tone wasn't running Sound Choice shows. In fact, Slep-Tone provided karaoke entertainment services from the beginning of its existence. The fact that it did not obtain a trademark registration until 2012 is irrelevant; rights in a trademark begin to accrue with use, not registration.

Third, the service mark registrations were obtained in early 2012. Slep-Tone ceased selling CD+G discs in late 2014 or early 2015, so even under the extremely restrictive definition you're using, you're still wrong.


OK, so you're the only ones who can call your shows a "Sound Choice Show". I really doubt anyone else is doing that, so the confusion would only exist among people who attend one of your shows and see a Party-Tyme logo when they request a recent song release.

JimHarrington wrote:
earthling12357 wrote:
In fact, if we choose to license use of our discs to other KJs with the stipulation they use them as the first option to any song requests we still would not be affiliated with PEP in any way. It appears we could even shift those tracks to a flash drive as their "shifting agent" while holding the originals in boxes in the trunks of our cars for safe keeping without consequence.


Nope. You might have the right under copyright law, but you do not have that right under trademark law.


Of course we do. How do you think video rental stores do it?

JimHarrington wrote:
earthling12357 wrote:
When people go to a sports bar there is no reasonable assumption that the bar is affiliated with the NBA, or NFL or whatever league's games are playing on 90% of the TVs.


Actually, that is a reasonable assumption, because sports bars that show sporting events are required to pay a licensing fee to do so. If they don't, they can be sued, and they frequently are.

Nice switch and bait there.
Those licensing fees are for copyright, not Trademark.

JimHarrington wrote:
earthling12357 wrote:
When I take the kids to see the latest Disney movie at the theater, and the Disney logo is the only one that appears on the screen, even in the previews, we still don't assume we are at a Disney theater.


Again, not a "Disney theater," but a theater that is authorized to show Disney movies. The showing of that logo legally indicates that what is being presented is an authorized performance. If a theater decided to show bootleg Disney movies, how long do you think it would take Disney to come after them, once the Disney found out about it?

Again, a copyright solution.

Using trademark to sell a copyright solution is a pig in a poke and the cat is out of the bag.

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PostPosted: Tue Apr 17, 2018 5:02 pm 
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Lonman wrote:
jdmeister wrote:
earthling12357 wrote:
When people go to a sports bar there is no reasonable assumption that the bar is affiliated with the NBA, or NFL or whatever league's games are playing on 90% of the TVs.


Actually, that is a reasonable assumption, because sports bars that show sporting events are required to pay a licensing fee to do so. If they don't, they can be sued, and they frequently are. Forget about the pro fees the venue pays?
JD, Wouldn't that still be considered a licensing fee?


Absolutely.. neither PEP nor SC controls pro fees, and if they claim they do, perhaps they need to be sued by ASCAP et all.


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JimHarrington wrote:
jdmeister wrote:
JimHarrington wrote:
Actually, that is a reasonable assumption, because sports bars that show sporting events are required to pay a licensing fee to do so. If they don't, they can be sued, and they frequently are. Forget about the pro fees the venue pays?


PRO fees have zero to do with sports. Your friendly neighborhood sports bar has to pay for the right to show sporting events, and those licenses include the right to display both the copyrighted content and the associated trademarks.

As far as PRO fees are concerned in the karaoke context, they cover publishers' rights only. They don't cover producers' rights at all, nor do they cover any trademarks that might be displayed.


So, you say you, (PEP/SC) control performance fees? I think not..
Where are the regulations stating trademark owners control public performance?
I'm waiting..


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JimHarrington wrote:
Now, here's what the law says: The SC logo is supposed to indicate Phoenix as the source of karaoke entertainment services. In other words, legally, as a matter of law, when that logo shows up on the screen 100 times a night, it's signalling to the consumer that "Phoenix is either providing these services or standing behind them through some sort of sponsorship, affiliation, or approval." That is what a trademark or service mark does.

The consumer is supposed to be able to take that at face value.

But, in reality, Phoenix has absolutely nothing to do with that show. The KJ isn't Phoenix's licensee. He's never bought a SC product at all. Phoenix isn't actually standing behind that show at all. So, any consumer who takes the display of the logo at face value, AS THE LAW SAYS THEY ARE SUPPOSED TO DO, is being deceived. And that deception is what the Trademark Act is supposed to prevent.



8:16-cv-3361-T-30JSS

"Because PEP allows anybody to buy its compact discs, karaoke DJs other than "Sound Choice" DJs can buy and play Sound Choice-branded karaoke tracks. If the Court accepted PEP's argument that the sole act of playing the Sound Choice-branded tracks caused consumers to believe that PEP sponsored a DJ's karaoke services, all karaoke DJs who play Sound Choice-branded tracks would be liable for trademark infringement—even those who acquired the tracks lawfully. This cannot be the case.

The fact that the "Sound Choice" trademark "is embedded in the creative content of the karaoke track and is visible to the public whenever the track is played does not falsely suggest that [PEP] is endorsing the performance . . . so long as [the] mark is not overtly used to market the performance." Rumsey, 829 F.3d at 829-30. Because PEP does not allege that Burke markets himself as a "Sound Choice" DJ or in any way uses the "Sound Choice" trademark to promote his karaoke business, the bar patrons have no reason to think that PEP sponsors his karaoke services."

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I'm reading all of this and laughing so hard I'm about to pee.....

It reads like a "whack-a-mole game" and Harrington is every single mole.


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JimHarrington wrote:

This assumes, of course, that I give a flying f*** what The Lone Ranger thinks. I don't.


8) Gee Jim getting a bit testy aren't we? The truth will set you free, at least that is what I have been told. Then of course we all have our own versions of the truth, right?


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earthling12357 wrote:
JimHarrington wrote:
earthling12357 wrote:
In fact, if we choose to license use of our discs to other KJs with the stipulation they use them as the first option to any song requests we still would not be affiliated with PEP in any way. It appears we could even shift those tracks to a flash drive as their "shifting agent" while holding the originals in boxes in the trunks of our cars for safe keeping without consequence.


Nope. You might have the right under copyright law, but you do not have that right under trademark law.


Of course we do. How do you think video rental stores do it?


Not like you're suggesting. Video rental stores also do not have the right to authorize the public performance of the content.

earthling12357 wrote:
JimHarrington wrote:
earthling12357 wrote:
When people go to a sports bar there is no reasonable assumption that the bar is affiliated with the NBA, or NFL or whatever league's games are playing on 90% of the TVs.


Actually, that is a reasonable assumption, because sports bars that show sporting events are required to pay a licensing fee to do so. If they don't, they can be sued, and they frequently are.

Nice switch and bait there.
Those licensing fees are for copyright, not Trademark.


The licensing fees cover both the copyrighted telecast AND any trademarks that are displayed.

earthling12357 wrote:
JimHarrington wrote:
earthling12357 wrote:
When I take the kids to see the latest Disney movie at the theater, and the Disney logo is the only one that appears on the screen, even in the previews, we still don't assume we are at a Disney theater.


Again, not a "Disney theater," but a theater that is authorized to show Disney movies. The showing of that logo legally indicates that what is being presented is an authorized performance. If a theater decided to show bootleg Disney movies, how long do you think it would take Disney to come after them, once the Disney found out about it?

Again, a copyright solution.

Using trademark to sell a copyright solution is a pig in a poke and the cat is out of the bag.


Disney would bring both copyright and trademark actions in that circumstance. It can and it does.


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