Aggressive Brand Management or Witchunts--Thoughts as Barbie Becomes a Designer Clothes Label

I was recently asked about the logic in Mattel's apparent "witch-hunt" borne out in its 2003 loss against the "where are they now?" pop band Aqua. In an age where the value of intangibles, especially the value of intellectual property to be certain is entirely uncertain, the power and value of branding cannot be overstated. Consider Mattel's recent and at first curious announcement of a Barbie clothing line.

An aging flagship brand for a toy giant stung by the slingshots of Game Boy Advanced's and the new Xbox, is now seen in a new light. While Barbie has traditionally commanded a loyal audience, the days of impossibly proportioned plastic dolls is nearing its end. However, Mattel's marketing and legal departments know that a product can be secondary to the brand and the culture which it creates. And so after expertly managing the Barbie culture for over fifty years, Mattel has decided to re-target its core audience, grownups who grew up on Barbie. This would not be possible without manicuring the Barbie image in the marketplace.

Therefore good brand management often includes taking an aggressive posture towards less obvious threats than counterfeiting. Parody is also a prime target as a parody that is left unaddressed can be dangerous even if such parody fails to gain notoriety, if simply for the perceived endorsement of the brand holder. Hence the suit is a public relations statement as much as a legal maneuver and good brand management has to factor that into a decision to commence an action, despite the prospect of a loss in court, as was the case with the Aqua suit. Some, including Lawrence Lessig, contend that allowing unfettered discourse including avant garde and derisive commentaries on a brand such as Mattel's may actually be good for business. I contend that this might be true for the casual user of a product, but not for the core audience. Consider that the last thing a parent or future Barbie clothing purchaser need to associate Barbie with is the lyrics of the Aqua song, which will likely result in a no sale.

Kaiser Wahab

Example of Typical Big Brand Domain Name Cease and Desist Campaigns:

http://www.barbieslapp.com/others/tribes.htm

http://users.rcn.com/napier.interport/barbie/censored/

Other Materials...

Text of the Ninth Circuit Decision in the Barbie in a Blender Case

A Comprehensive and Opinited Resource on Mattel's Legal Maneuvering

What Everyone Needs to Know About Independent Film Making

As an indie film producer, attorney or not, you must conduct a small orchestra of writers, directors, cast, and crew. Knowing the ins and outs of their jobs is critical to success. And when it comes to raising investor funds, distribution, and contracts, no player is more critical than your attorney. Learn how to maximize their potential for your production at our panel discussion on making your film a reality from concept to distribution. Panel speakers are top attorneys and producers who work with them who will share their perspectives and approaches to the business of making independent films.

New York County Lawyers’ Association CLE Institute presents……………………

Nuts & Bolts of Film Financing:

What Every Attorney Needs to Know About Independent Film Making

Monday, November 21, 2005, 6:00PM - 9:00PM

New York County Lawyers’ Association, 14 Vesey Street, New York City

3 MCLE Credits: 3 Professional Practice; Transitional

Program Co-Sponsor:

NYCLA Entertainment, Media, Intellectual Property and Sports Law Section (EMIPS)

Program Co-Chairs & Moderators:

Olivera Medenica, Partner, Wahab & Medenica LLC

Martin Novar, Principal, The Law Firm of Martin Novar

Faculty:

Robert Heim, Partner, Meyers & Heim LLP
Steve Hutenski, Former Executive Vice President, Miramax

Robert. L. Seigel, Partner, Cowan DeBaets Abrahams & Sheppard LLP

Course Overview:

This program is geared towards the entertainment and non-entertainment practitioner alike and will provide a solid background and discussion of film financing, relevant securities laws and the role and duties of counsel representing independent film makers.

An experienced panel will explore the essential components of creating, selling and distributing motion pictures, including:

• a broad-strokes overview of film financing and the role of a producer in getting a film off the ground, providing attendees with the necessary knowledge to either assist film makers in getting films off the ground or deal with producers on an individual project. This segment will also provide practical tips on how to get involved in the film business.

• discussion of securities issues relevant to film financing, providing an essential understanding of how to offer securities within the confines of a private placement exemption. This segment will also provide practical tips on the forms and materials necessary to fulfill this securities requirement.

• providing practical skills in drafting and negotiating contracts in the film making process from inception to conclusion.

You will learn: how to understand the role of producer, production counsel, and other players in the film industry; how to draft a Regulation D offering in the context of a motion picture project; and how to draft, negotiate and efficiently conclude the vast array of contracts involved in the film making process.

Who Should Attend: Attorneys engaged in the entertainment, securities, and intellectual property areas of practice as well as attorneys in all areas of practice seeking information on the legal representation aspects of independent film making.

Registration Fee: Member: $ 125 Non-Member: $ 165

you can download the registration form here.

Understanding Grokster – Should I stop freeloading?

Yes, yes, and yes, you and I both know that you must stop downloading (for free, that is) Ashley Simpson’s new song – for many reasons. But this is not the point of me putting fingers to keyboard. Understanding Grokster and its implications goes well beyond the established commercial principle that property comes with a pricetag…

An excerpt of Olivera Medenica’s article “Understanding Grokster and its Implications” providing practical guidelines for streamlining your operations in light of this decision. The full article will be posted in our firm's articles database shortly.

EXCERPT:

So where does all of this leave you and is all of this mere academic discussion or should it concern you in the first place? If you’re making products or offering services that enable someone to engage in copyright infringement, then you should be worried. There is nothing in the Grokster opinion that suggests that the principles involved are strictly limited to peer-to-peer software. On the contrary, if someone can show by direct or indirect evidence that you intentionally offer someone the possibility to infringe copyrights and you encourage them to do so, then you will be held liable for copyright infringement. This presumably includes any kind of goods and services, from digital audio players to copy machines and legitimate P2P services. In other words, the goods and services that are encompassed by the Grokster decision are left undefined and it is up to you to determine whether you can withstand the elusive “intent” standard that the Grokster decision endorses.

The good news is that there are certain things that you can do to minimize potential liability. If you know that your product or services have the potential to be used for copyright infringement, there are certain strategies you can implement in order to prevent the perception that you endorse such activities:

• Don’t name anything ending in “-ster” : This is not a joke. The Court in Grokster did take the trouble of noting that Grokster was an obvious derivative of Napster, the notorious file-sharing service that put file-sharing on the map. Why attract attention to yourself by drawing a comparison? Use your imagination and find something new that bears no phonetic resemblance to Napster.

• Go through your company’s stated objectives: Your company should not have a mission that encourages theft. Check through your minutes, business plan, internal memoranda, emails, websites – none of them should mention or even allude to copyright infringement as an objective. Assess where the company stands – what are your business objectives? Are you filling gaps for copyright infringement?

• Check your company’s external communication to consumers: Establish a system whereby your company has an advertising promotion clearance to ensure that no external communication could be construed as encouraging copyright infringement. Make sure that your company website and promotion materials don’t link to a company such as Grokster. Establish an internal employee code of conduct that prohibits purposeful and intentional conduct to promote infringement (i.e. sales staff showing how to infringe copyright). Certainly don’t respond affirmatively to copyright infringement requests and double check your external communications to consumers about what they can or cannot do with your product.

• Rely on technology to deter theft: Review whether your company has filtering tools, so that technology minimizes infringing use by clients or customers. If your company offers a product, it should be designed to deter infringing uses – your company developer should be aware that you are trying to develop products that prevent infringement.

• Educate your consumers about copyright infringement: Place some educational materials on your website regarding copyright infringement. The Copyright Society of the U.S.A. has educational materials on their website that is easy to understand and which you can link to. Prominently feature your support of materials protected by Creative Commons (www.creativecommons.org) or some other duly licensed materials.

• Have a back-up plan: Make sure that your company has a procedure to deal with copyright infringement once you are aware that it is in fact occurring. Your internal company management materials should feature it have it as well as your employee code of conduct.

The Grokster decision was not meant to place your company into bankruptcy if there is a remote possibility that your product or services could lead to copyright infringement. What it was meant to do is prevent companies from building a business around the theft of other people’s work where it is clearly such business’ objective to do so. If you have a sibling, you know exactly what I am talking about. You don’t tell your little sister to go steal your next door neighbor’s Star Wars action figure and expect not to get in trouble for it. Copyright infringement is simply theft, and although we all know that we shouldn’t do it, the fact remains that someone will always do it. Let’s just make sure that you are not the one that facilitates it.

Olivera Medenica

Good Company Blogging as Policy

As the growth of blogs rival the WHO'S predictions for a bird flu outbreak, companies are formally engaging them as legitimate platforms to exchange ideas and discussion. Not surprisingly their attorneys are terrified at the potential for a litigation outbreak. At this point its common knowledge that blogs are not your father's bulletin board and that their real time accessibility and decentralized nature make them virtually impossible to police. As a result, an aggressive and visible blog policy is absolutely necessary to proactively engage potentially damaging misconduct.

Most blog policies are plain English list of dos and don'ts designed to encourage discourse with a clear sense of etiquette. The typical points made include:

1. You understand that while the Company encourages blogging as a valuable tool for discussion, you must ensure that you balance your workplace commitments with blogging;
2. Identify yourself as the poster and make certain that your views are clearly linked to you and not the company, your fellow employees, or your manager.
3. You understand that the company has certain sensitive, confidential, and proprietary information which you must respect when blogging and avoid discussing altogether when requested by the Company;
4. If you have any concerns regarding acceptable postings to your blog, please consult with your manager.
5. Display courtesy and respect for the company, its employees, its managers, and its competitors.


Two representative and qualitatively different approaches are available at Harvard Law School and Sun Microsystems

Kaiser Wahab