Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Trademark Law

Posner Lays the Smack Down on Banana Lady

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By: Chris Freiberg
Valparaiso University Law School
J.D. Candidate, 2015

In a scathing judicial opinion published Monday, Seventh Circuit Judge Richard Posner not only dismissed the copyright lawsuit of a woman in a giant banana costume, but also wrote that federal courts in Wisconsin should consider enjoining her from filing any more frivolous lawsuits.

Catherine Conrad is a woman from Madison, Wisconsin who makes her living singing and dancing in a banana costume, which is something I didn’t know was a legitimate career choice until Monday, but now has me reconsidering my decision to go to law school.

The defendant, AM Community Credit Union, hired Conrad to perform a singing telegram at a trade show.

Conrad, pursuing the case pro se, claimed the defendants failed to tell the audience any pictures they took of her were only for personal use; she even considered posting pictures on Facebook to be a violation of her copyright.

In an eight-page opinion (which includes an awesome picture of Conrad in her banana costume), Judge Posner tears Conrad’s arguments apart under well-settled law that her performances cannot be copyrighted; Posner argued, had she recorded her performance or had a written “dance notation”, it may have passed for a copyrightable medium of expression.  Conrad also failed to prove she had a copyright claim on pictures of her performing because it was unlikely the defendants created a derivative work with some element of originality.

While not ruling on Conrad’s copyright of her own personal banana costume, the opinion does note the court’s surprise at discovering just how common banana costumes are, citing a Google search.

Judge Posner then laid the smackdown on Conrad for the 17 frivolous lawsuits she filed in state and federal courts since 2009, noting that she has racked up an impressive $150,000 in judgments and sanctions against her.

“She once sued event organizers who mailed persons attending the event a postcard that had a picture of her in her banana costume,” Posner wrote. “On another occasion she sued persons who videotaped her performance but declined to post the video on their website after she demanded a $40,000 license fee.”

The judge concludes what might be the greatest judicial opinion of all time by telling the Western District of Wisconsin that it should consider barring Conrad from filing further lawsuits until she can settle her legal debts.

This is normally where I would ask if people agree with the court’s decision or not, but I think the only question that can be asked here is how amazing was Judge Posner’s opinion?

Google and Android (Timing is Everything)

Thomas McNamee
J.D. Candidate, 2015
Valparaiso University Law School

In an example of how long an appeal can sometimes take, the Seventh Circuit has affirmed a district court’s grant of summary judgment in a case that was argued nearly two years ago.  On April 4, 2014, the Seventh Circuit Court of Appeals upheld a finding that Google did not infringe on Erich Specht’s Android Data mark, because Mr. Specht abandoned the mark. By abandoning the mark, Mr. Specht forfeited his ability to assert any rights to it.

The decision tells an interesting “he said – she said” tale of facts in which the two sides debated timelines, events, and evidentiary matters for the right to the “Android” name. In 1998, Mr. Specht created a company called Android Data Corporation. His trademark “Android Data” was approved and registered in 2002, but by the end of the year the business was unsuccessful and all assets, including the trademark, were transferred to another of Specht’s companies. While Mr. Specht’s company continued to struggle, and the use of the “Android Data” mark diminished, Android, Inc. started up and was developing what is now the Android operating system for smart phones. Google purchased this start up in 2005. The purchase and attempted use of the “Android” mark led to the lawsuit, the district court’s grant of summary judgment to Google, and the appeal that was decided by the Seventh Circuit.

The question was whether Mr. Specht abandoned the trademark after 2002, when the business was essentially non-functioning. Citing myriad authorities, the court determined the trademark was abandoned and Specht has no rights to the mark. In determining abandonment, “a trademark is abandoned if its ‘use in commerce’ has been discontinued with no intent to resume use.” 15 U.S.C. § 1127. The code also states that “nonuse for 3 nonconsecutive years shall be prima facie evidence of abandonment.” Because Specht ceased using the mark for commerce in 2002, and Google first used the term “Android” in 2007, Google had become the senior user of the mark due to Mr. Specht‘s abandonment (3 year discontinuance). Furthermore, because of Google’s continuous and uninterrupted use of the “Android” mark since 2007, it holds the rights to the mark against the world.

In civil cases of this nature, the decision rests on the evidence. Google presented what it needed to document its use of the mark, while Mr. Specht failed to do so by only offering items that were not concrete.

 

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