No Trademark Blog Until March 2
Until that time, please blog amongst yourselves.
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February 22, 2005
February 19, 2005
Google Auto-Link Function Raises Copyright/Trademark Discussion
Emerging issue:
The new Google toolbar adds links to content through a function named Auto-Link. For example, it is my understanding that if an address appears on a webpage, a program in Google's toolbar can create a link from that address to, perhaps, Google's map service. This has stirred some controversy, as it gives Google the ability to steer traffic off the page to one of its services or advertisers.
Does the third-party addition of links to content create an unauthorized derivative work or is it within the implied license created by making the content available? Is it accurate to state that auto-link makes the html code work differently, in a way the original coder did not anticipate? Or is this similar to, for example, copying text from a webpage - using browser functionality to act upon the html code?
Does the third-party addition of links to content constitute a false statement of endorsement of the 'linkee' by the 'linker'? Would the user understand which links have been created by the source of the content and which have been created by Google (and is that distinction important)?
Does the addition of links create unfair competition issues, under 'sweat of the brow' or 'unjust enrichment' theories? In what way is auto-link different from a situation where, for example, the user cuts and paste text from the webpage into an auto-link window in the toolbar itself?
I tried out auto-link - the user has to voluntarily click an auto-link button - does this mitigate all confusion?
Some websites will appreciate the value-add, some won't. If the website can opt in or out of auto-link, does the problem go away?
Discussion from Micropersuasion, eWeek, Dave Winer, John Robb, News.com, Dan Gillmor and SearchEngineWatch.
Historical aside: Many commentators note the resemblance of the Google feature to Microsoft's Smart Tags function of several years ago.
February 18, 2005
European IP Blog: IP Newsflash
IP News with European emphasis: IP Newsflash from Rolf Claessen.
Intent To Use In Connection With Vanquishing Services
Pictured above a logo mark subject of an intent-to-use application 76595873 filed by the MPAA. I/P Updates reports that the MPAA placed the mark on the now shuttered LokiTorrent site.
'Must Match' Spare Parts in the UK
Via the Lovells February Intellectual Property newsletter (online copy perhaps will be posted here), discussion of 'must match' concept in UK design law in Dyson v. Qualtex (concerning ability of manufacturer to design spare parts whose shape or configuration are dependent upon the appearance or configuration of another part).
Trade Dress: IPKat on Smarties Tube Packaging
IPKat discusses Nestle's decison in UK to change shape of SMARTIES packaging.
Tatoo You Implied License?
Detriot News story (and photo) re tatoo artist's claim that Rasheed Wallace infringes copyright in tatoo by appearing in Nike ad. EFF commentary here.
A Lovely Voice Accentuated By A Striking Personality
Podcasters may seek inspiration from this archive of radio ads maintained by Duke University.
Campbell Soup Can As Genre
Poster of Campbell Soup Cans by artist Steve Kaufman here.
February 17, 2005
Interesting Nominet Decision Regarding GAME.CO.UK
With the cavaet that I have not handled domain name disputes under Nominet's procedure, nor have I read the underlying submissions, I will say that I am 'surprised' by this Nominet decision awarding game.co.uk to Game Group, owners of a GAME chain of stores selling, hmm, games.
It's interesting that someone could establish rights in GAME for games.
The second interesting question is when the relevant time of inquiry should be, given that the Nominet policy is targeted at 'abusive registration.' Here, registrant has owned the name since 1995. Assuming that complainant's allegations are correct, which is that registrant, after a period of several years of either warehousing the name or using it in connection with his game industry consulting business, then changed the usage of the site fairly recently to compete with complainant's now-booming business, that would seem to make for a colorable passing-off action, and would not seem to speak to registrant's actions in 1995, when he registered the name.
The decision is on appeal.
Commentary from The Register here.
February 16, 2005
WIPO Trademark Filing Statistics
IPKat on WIPO's report on trademark filing statistics. The largest filed under the Madrid System? Henkel.
Ty Stripped of Judgment For Witness Tampering
Softbelly plush bean bag dolls have chamois surfaces used to clean computer screens. At one point they were named SCREENIE BEANIES. Owners of the BEANIE BABY mark, Ty, sued, and prevailed. Ty has now been ordered to forfeit its $700k judgement for tampering with an expert witness who was allegedly prepared to testify that BEANIE had become a generic term for bean bag dolls. Via Chicago Tribune.
Prior appellate decision remanding case to district judge to investigate Ty's contact with witness here.
February 15, 2005
'Mis-classified' Goods/Services in Extension to U.S. of a Madrid Application
A letter has been circulated to non-U.S. trademark owners by a U.S. law firm indicating that if they were to extend an International Application to the U.S. under the Madrid Protocol, were the U.S. Trademark Office to rule that some or all of the goods/services are mis-classified under U.S. practice, those goods/services, rather than being re-classified (as would be the case with an application under Section 44(e)), those goods/services would be deleted. If correct, this would be something of a disadvantage to the non-U.S. filer.
While fear of this outcome was articulated in the run-up to U.S. adherence, it apparently is not correct.
Examination Guide 2-03 IV B.2 provides that while the PTO will attempt to conform the U.S. extension to U.S. practice whenever possible, the International Bureau controls classification. The goods/services would remain in what the U.S. Trademark Office would ordinarily think of as 'the wrong class.'
One fewer thing for our non-U.S. friends to worry about.
Hat-tip to A.S. for supplying chapter and verse.
Issues Re Open Source Software Trademarks
Trademark lawyer Anthony Tambourino noted the Red Hat free-distribution trademark story below and writes:
There are a couple of issues to watch out for when representing an "open source" client.
First, be clear who the owner of the trademark is. There are thousands (literally) of open source projects (See SourceForge). Often, a half-dozen programmers (a/k/a "maintainers") work on these "projects" for free. Very few, if any, of these projects have a formal corporate structure (The Mozilla Foundation and The Apache Software Foundation being notable exceptions). You will probably need to discuss with the client the need for a corporate structure before talking to them about trademarks. Programmers come and go, especially in the smaller projects, so it is critical to set-up a structure that keeps the rights with the original project.
Second, there are always 2(d) (likelihood of confusion) issues. Mozilla, who you would think has attorneys on top of these things, had to change the names of two of its browsers. Firefox early on was called Firebird and Mozilla's Mac-only browser, Camino, was originally named Chimera, both changed due to trademark issues, Also, look out for 2(e)(1) descriptiveness issues. You will often see projects named something like FREEVIEW for an open source all-purpose image reader.
Lastly, there are dilution issues. I think that is why we are seeing Red Hat's sudden strict stance regarding use of its trademark. It protects Red Hat from poorly maintained and insecure distributions using the Red Hat name (and let's face it, open source software's claim to fame is its security (especially vis-a-vis Microsoft)). However, it also permits Red Hat to funnel consumers towards its own distro. If a consumer wants a Red Hat distro, how does the consumer know what he or she is getting if the company can't say "Brand X, a Red Hat-based Linux distribution"?
The GPL (General Public License) covers no activities other than copying, distribution and modification (see Paragraph 0 of GPL). The stance that Red Hat has taken is interesting, as I see it, because it shows how trademark infringement and a copyright "right of attribution" can be at odds. While I think it is clear that Brand X using the Red Hat trademarks all over its own advertising is infringement, I don't know if that necessarily goes so far as to permit Red Hat to enjoin Brand X from stating that it is a "Red Hat based distro". Perhaps Red Hat lawyers will start negotiating with individual Red Hat-based vendors regarding the "right of attribution".
February 14, 2005
In Heaven There Is No Beer
Brandchannel on the relationship of beer brands to their country of origin.
Siemens on brewing beer here.
Red Hat Re Use of Trademarks on Free Distribution Software
Via Slashdot: Red Hat, a Linux distributor, protests third-party use of RED HAT on free software distributed by Red Hat. Contains disucssion of treatment of trademarks in free-distribution scenario.
Tabasco v. Tabascos
The owners of the TABASCO sauce trademark have sued the owner's of TABASCO'S MEXICAN RESTAURANT AND PATIO, a restaurant in Iowa, named after the state in Mexico.
History of TABASCO sauce here.
Information regarding visiting the Tabasco Plantation on Avery Island, Lousiana, here.
Information regarding visiting the Tabasco state in Mexico here.
Slate On Wealth Created By Fat Fingers
Slate article on the typo ecnomy the Internet has spawned.
Chameleon Re-formats Bloglines
Chameleon is a service that sits on top of your Bloglines account and re-formats the way Bloglines displays feeds and folders.
February 11, 2005
Ad Parodies
Boeing 787
Boeing has renamed its 7E7 Dreamliner to the 787, to conform with its previous serious of 7x7 names.
Boeing started as the Pacific Aero Products Company in 1916 according to this history.
February 10, 2005
Certainly The Most Ironic Search Engine Provider
Discussion of Google's patented PigeonRank system here.
More On The Bean That May Not Be Photographed
Some reactions to the Bean-teaser from yesterday.
1. The photo, to the extent it copies, copies a curve and reflexity, neither of which are original to the Bean;
2. The taking is de minimis;
3. Look at the statute;
4. Look at the law. On that point, a brilliant colleague (whose employer insists that its employees hide their lights under bushels) writes:
When architectural works were added to the Copyright Act in 1990, they carved out photographs of architectural works, but not sculptures. The CBS v. Martin Luther King decision in the 11th Circuit discussed when a divestive publication permits photographs of outdoor artistic works, which I've copied and bold underlined below. Letter Edged In Black is the best-known case on the topic, and involved a sculpture exhibited in an outdoor plaza:
It appears from the case law that a general publication occurs only in two situations. First, a general publication occurs if tangible copies of the work are distributed to the general public in such a manner as allows the public to exercise dominion and control over the work. See Burke, 598 F.2d at 693 ("The decisive issue was whether [the author's] release of the film itself to [a third party] was, under the circumstances, a general publication."); Mister Maestro, 224 F.Supp. at 107 (" 'A sine qua non of publication should be the acquisition by members of the public of a possessory interest in tangible copies of the work in question.' ") (quoting Nimmer, supra, 56 Colum. L.Rev. at 197); Nimmer, supra, 56 Colum. L.Rev. at 196 ("[E]ven if a performance were regarded as a copy of the work being performed, the act of publication would not occur merely by virtue of viewing the performance since an audience does not thereby gain such dominion over the copy as to warrant the conclusion that the work has been surrendered to the public."). Second, a general publication may occur if the work is exhibited or displayed in such a manner as to permit unrestricted copying by the general public. See American Tobacco, 207 U.S. at 300 , 28 S.Ct. at 77 ("We do not mean to say that the public exhibition of a painting or statue, where all might see and freely copy it, might not amount to [divestive] publication...."); Patterson, 93 F.2d at 492 ("The test of general publication is whether the exhibition of the work to the public is under such conditions as to show dedication without reservation of rights or only the right to view and inspect it without more."); Letter Edged in Black Press, Inc. v. Public Bldg. Comm'n of Chicago, 320 F.Supp. 1303, 1311 (N.D.Ill.1970) (invoking this exception where "there were no restrictions on copying [of a publicly displayed sculpture] and no guards preventing copying" and "every citizen was free to copy the maquette for his own pleasure and camera permits were available to members of the public"). However, the case law indicates that restrictions on copying may be implied, and that express limitations in that regard are deemed unnecessary. See American Tobacco, 207 U.S. at 300 , 28 S.Ct. at 77 (holding that there is no general publication where artwork is exhibited and "there are bylaws against copies, or where it is tacitly understood that no copying shall take place, and the public are admitted ... on the implied understanding that no improper advantage will be taken of the privilege" (emphasis added)); Burke, 598 F.2d at 693 (holding that releasing a film to a professor and host of an educational television program, and authorizing him to copy and broadcast same on public television was a limited publication because the grant of permission to use the film contained an implied condition against distributing copies of the film to others or using it for other purposes); Nutt, 31 F.2d at 238 (lectures were not generally published when delivered because oral delivery is not publication, and "[e]ven where the hearers are allowed to make copies of what was said for their personal use, they cannot later publish for profit that which they had not retained the right to sell").
Based On A True Story
Prof. Lessig on being portrayed by Christopher Lloyd here.
Ninth Circuit Vacates Prior Decision in Yahoo/Nazi Paraphernalia Case
Via How Appealing, the Ninth Circuit has vacated a prior three-justice decision holding that a U.S. Court did not have personal jursidiction over an Anti-Nazi group which had sued Yahoo in France regarding the offering of Nazi paraphernalia via Yahoo. There will now be an en banc hearing.
February 09, 2005
New Technology and Marketing Law Blog
Prof. Eric Goldman (no stranger to these pages) has started the TECHNOLOGY AND MARKETING LAW Blog. Early post topics include bots, spyware, Grokster and the Jewish Rock and Roll Hall of Fame.
The Bean That May Not Be Photographed
Copyfight on the Bean That May Not Be Photographed (and follow the links therein).
Question: Assuming that it is unauthorized, does the second image of a reflected scene in the bean infringe the copyright of the sculpture? Note - I'm not talking about breach of license, as in the photographer apparently needed permission from the property owner (in this case, I think, the City of Chicago) to take a picture from where he/she was standing. My question is: what is the scope of the copyright in the sculpture and does the photo on the right infringe that copyright.
Dumbledore v. Rumbledore
Lawyers for J.K. Rowling are looking into whether a U.S. Army publication that features a wizard named Motter at a school named Mogmarts headed by a wizard named Rumbledore, infringes the Harry Potter copyright.
Thousands Of Infringing Heroes Roaming The Streets of Paragon City
EFF's Deep Links continues its coverage of the City of Heroes litigation (litigants depicted at right), linking to defendant NCSoft's motion to strike and motion to dismiss, which motions allege that Marvel fabricated some evidence of infringement. Marvel allegedly used the City of Heroes software to create Marvel-like characters (which could demonstrate the software's potential for infringement, but was misidentified as having been created by COH users).
Background on the City of Heroes matter with cool pictures here. There are numerous discussion threads on this case on the Web.
Evidence of infringement or evidence of psychotic break with reality? - Plaintiff's assertion in its complaint that there are "literally thousands of infringing heroes roaming the streets of Paragon City at any given time." ;-)
The Bag Called You
Anya Hindmarch offers a "Be A Bag" option that allows you (or an image you select) to be the design of a bag.
February 08, 2005
If You Thought I Was Extreme About Commercial Use Of Content
. . . then you should read this clause from a TOS:
The license granted in these TOS does not constitute a transfer or sale of ____'s ownership rights in the ____ Database. ____ retains all right, title, and interest in and to the ___ Database including all related intellectual property rights. You will use your best efforts to prevent and protect the contents of the ______ Database from unauthorized use or distribution. You must not rent, lease, sublicense, sell, assign, loan, distribute, transmit, or otherwise transfer any content of the service, including the ____ Database, or your rights and obligations pursuant to the TOS. You must not copy, reproduce, alter, modify, create derivative works, or publicly display any content of the Service, including the _____ Database, unless expressly authorized in the TOS.
This is from paragraph 6 of Blogline's TOS.
p.s. I also quote from Blogline's Acquisition FAQs:
Bloglines, like any aggregator, requires a license to display, distribute and promote the feeds we serve and the content you post -- otherwise, we could not provide this service. Bloglines' license is for the purpose of displaying, distributing and promoting your content in connection with the service.
I, like Denise, wonder what license it refers to.
Early Start On Super Bowl XL Domain Names
Detroit News reporting on domain names for sale reflecting Super Bowl XL (that would 40, and that's the one next year in Detroit, the one the Jets will win).
How Do We Do It? Volume.
Tech Law Advisor points out that buying domain names for $6 and selling them for $4, raises issues.
New Blog On Branding
ASCAP For Podcasters
ASCAP for Podcasters at $250 per year, via Bag and Baggage.
Dear Jeeves: Please Offer A Non-Commercial Opt-Out For Bloggers
News.com is reporting that Ask Jeeves will buy Bloglines. There is a paragraph on my request to ask Bloglines to remove my feed (if you're coming here from the news.com article after reading the original post, this subsequent post may address some of your reactions).
The article speculates that the attraction of buying an aggregator is the potential for 'expanding paid links to RSS Feeds and Blogs.' However, an Ask Jeeves officer is quoted as saying that the company has no immediate plans to sell advertising, and that various models, including subscriptions, are being considered. The Bloglines press release mentions enhanced search of blog content using Jeeves' Teoma engine.
The purchase offers an opportunity to advance the debate regarding third-party commercial use of RSS Feeds.
To answer a specific question posed to me recently: the sponsored links on a Google or Technorati results page are placed on, and clearly originate with, their 'value-add' pages, which make lawful fair-use of the underlying content. Advertising by an aggregator on a portal page or other 'specific-blog neutral' page would, imho, also, not raise copyright or trademark concerns.
However, in my view, placing contextual advertising adjacent to a full-text copy of a blog page raises both copyright and trademark concerns, as does the commercial use of subscriber information.
As an aside, I'm not as concerned by the idea of an aggregator using a subscription model - like the license fee for news reader software, the fee is clearly tied to the value-add of the aggregator service, and is not a commercial use of any particular blog.
Whether use such as contextual advertising or subscriber-list mining exceeds any implied license created by the making available of a RSS feed is, as Denise points out, not yet the subject of firm case law (although in my view the implied license extends only to the reproduction of the feed and not to commercial use). I think that the copyright owner's explicit prohibition of such use (in the form of, for example, a NCC license) removes most of that ambiguity - it exceeds the explicit license.
(Again I want to point out that in my specific instance, Bloglines immediately complied with my request to remove the feed - although I think its "That blog does not exist" error message is funny but a little heavy handed).
I therefore propose the following to Ask Jeeves and other full-text aggregators.
Bearing in mind that there will likely be only a few full text web-based aggregators in the future, making complete waiver of copyright a pre-condition for using RSS, is a bit much. Offer a choice to bloggers: if they elect a NCC (or NCC-type) option, you would include their feed without contextual advertising or subscriber-list mining.
Again, it's my guess that the numbers that will pursue this option will be small enough that your model will still work.
February 07, 2005
Banned Bowl Ads
Discussion of not-shown Super Bowl ads here. At this point I think GoDaddy may be ahead of the game.
Google's Reasons For Becoming An ICANN Registrar
NY Times article giving reasons on why Google may have become an ICANN-accredited registrar. Reasons include:
1. Google's statement that it did so 'to learn more about the domain name system' and to 'increase the quality of our search results.'
2. Bret Fausett's speculation that now Google can get access to the expiring domain name list. His Times quote implies that if Google became aware that there was a change in title due to expiration, Google would presumably revise downward that page's Google rank. "Name-Grabbers" reportedly snap up expired domain names and then use Google's AdSense program to take advantage of the 'skeleton of links' leading to the expired name.
3. Domain Name registration would be a value-add to its Blogger and GMail services.
Among the reasons not given:
4. Making money selling domain names. While some people continue to pay NSI and Register.com $35 a year for a name that costs the Registrar $6 in registry fees, companies like Yahoo and GoDaddy have pushed the price of new registrations to below $6.
5. Eligibiilty to participate in Registrar Consittuency Mailing List and learn RC secret handshake.
LVMH Prevails Over Google In France in Keyword Case
LVMH announced that a French civil court has granted it a Euro200,000 award against Google for selling keywords consisting of LVMH trademarks to, among others, 'counterfeitors.' Details to follow.
Anti-Brand Article
February 04, 2005
BLOG Trademark Watch
The term BLOGOSPHERE has no hits on TESS. The string BLOG produces 17 hits, the oldest being NBA BLOG SQUAD and the newest being BLOG-N-PLAY
Beat State!
University of Missouri battles Southwest Missouri State University over rights to MISSOURI STATE UNIVERSITY, via Columbia Tribune.
Trademark Attorneys vs. Solicitors in the UK
Via Legal Week: In the UK, which does not have a U.S.-style unified bar, this article discssues growing rights of trademark attorneys vis-a-vis solicitors.
OK, it's barristers who wear horsehair wigs, not solicitors. You come up with a visual.
COOLWHITE Descriptive Of Gum In China
Via Xinhua: Wrigley loses protection of COOLWHITE on descriptiveness grounds in the PRC.
One Fewer Headache For The Shelby Coupe
We reported on a dispute regarding the Shelby Coupe and ran that cool photo (of an allegedly infringing coupe) in 2003. Now Shelby has announced a settlement with one of the entities that allegedly violate the trade dress of the famous Shelby Coupe.
And Now, A Word On Behalf Of Non-Disclosure Agreements
Via Sportsbusinessnews.com via Sports Law Blog: Season Tickets is suing Ticketmaster for breach of a non-disclosure agreement, alleging that Ticketmaster stole trade secret information while engaged in subsequently-aborted talks to buy the company.
On the one hand, another argument to get clients to get the NDA signed before they take the meeting. On the other hand, another reminder that suing a former suitor for breach of a NDA is not much of a consolation prize when merger talks fail.
February 03, 2005
Doc Busted For Bootleg BOTOX
Fake BOTOX, via CNN.COM.
SpongeBob Gets Religion
The caption to this photo from the United Church of Christ reads:
SpongeBob meets with the Rev. John H. Thomas, the UCC's general minister and president, in his office. Explains Thomas, "No matter who you are or where you are on life's journey, SpongeBob, you're welcome here."
This one of series of photos illustrating SpongeBob's visit to UCC after his encounter with the "Focus on Family" Group.
A concerned reader who happens to maintain an IP blog asks:
"Infringement? Dilution? Or just a sponge in a church?"
LEGO's Clutching Power
What To Do When You Can't Publish Nighttime Photos Of The Eiffel Tower
Fast Company reports that the company that maintains the Eiffel Tower holds a copyright in its nighttime lighting display, and thereby polices commercial use of (nighttime) photographs of the Tower (unlike the image of the Tower itself, the lighting display has not fallen into the public domain).
One photographer's solution depicted here.
UPDATE: Great minds inspired by the same story. Copyfight's take.
February 02, 2005
Biased Authorities: First Dan Rather, Now Nimmer Gets His
From the Abstract from Bartow, The Hegemony of Copyright Treatises, University of Cincinnati Law Review, Vol. 73, pp.1-64, Fall 2004
This Article asserts that major conceptions about the appropriate structure, texture, and span of copyright protections and privileges have been fashioned by copyright treatises, particularly the various editions of Nimmer on Copyright. Copyright treatises function in concert with the machinations of Congress, the courts, and custom, but their role is not often scrutinized.
Because copyright treatises typically do a far better job than Congress or the courts of explicating copyright law in straightforward and accessible language, such treatises can not only communicate the copyright law, but also influence its development and direction. Policy makers no doubt understand that content owners and interest groups propose self-serving agendas, and courts are well aware that the parties to litigation all want to prevail when they advocate for particular legal conclusions. A copyright treatise editor could similarly have an economic interest in promoting particular interpretations of the law over others, but has no obligation to disclose this. Because no goal beyond articulating copyright doctrine in a manner that invites further uses and purchases of the pertinent treatise is facially evident, the tome has an appearance of objectivity and detachment.
This Article critiques the excessive reliance placed on copyright treatises by judges, lawyers, and even scholars and policy makers; explains why treatises in principle are not a legitimate source of positive law; describes the potentially undemocratic consequences of incorrectly perceiving treatises as nonpartisan, status quo baselines of extant copyright jurisprudence; and recommends an alternative approach to charting and cataloging developments in copyright law, the establishment and maintenance of a Restatement patterned after those promulgated by the American Law Institute in common law subject areas
Personal Note: I haven't read this article so I don't know how the author treated PATRY ON COPYRIGHT, but if you read Professor Patry's discussion of the DMCA, for example, then you know what are his [clearly identified] personal viewpoints on legislation such as DMCA, and that he is no fan of the machinations of Congress, at least in that instance.
Warren Buffett On Life
Not Trademark Law but you will not be worse off for reading these notes from a meeting with Warren Buffett.
February 01, 2005
Bleach Is Bleach And Product Placement
This NY Times article discusses product placement in movies, including the exchange from Million Dollar Baby about bleach being bleach, a discussion prompted no doubt by this 1967 Supreme Court decision ordering Procter & Gamble to divest itself of the then recently-acquired Clorox Company.
Others brands in recent movies include the Sanford Winery and Hai Karate.
You Can't Make This Stuff Up
Model does two hour photo shoot in 1986. Nestle doesn't tell him that it put the picture on the TASTER'S CHOICE jar. He sees the jar for the first time in 2002. Sues. Gets awarded $15.6 million dollars.
Update: Scott Whiteleather writes " . . . it is interesting to see an award like this for someone who is not a celebrity by traditional standards . . . " noting that an unknown would likely receive $200,000 to $250,000 per year for what is ostensibly worldwide use.
However, Scott writes that the "distinguishing factor in this case is that this is not simply the use of an individual's likeness in an ad. Mr. Christoff's photo was used on the actual product. As such, I would suggest that the image became an integral part of the trademark. Imagine the label without the smiling, contented face and consider whether the impact is the same.
In today's legal climate, plaintiff's often claim that the use of their image is actionable under an 1125(a) claim. In many cases, the argument in tentative at best. Here, however, the parallel between right of publicity and the Lanham Act is unmistakable."