A banana costume could infringe on a banana costume. %CUT% If you bought a banana costume for Halloween today, you may have purchased a copyright infringing product. Rasta Imposta sued Kmart for selling alleged knockoffs of Rasta Imposta’s banana costume. Costumes are generally considered clothing which are useful articles and can’t be copyrighted (Whimiscality, Inc. v. Rubie’s Costumes which held a child’s pumpkin costume could not be copyrighted). But masks can be copyrighted because they aren’t considered useful articles. (Masquerade Novelty v. Unique Industries which held that animal nose masks can be copyrighted). But would a banana costume be considered clothing and not copyrightable? We’re going to have to live in limbo because Rasta Imposta and Kmart settled.

We celebrate the premier of Season 2 of Netflix’s hit horror series, Stranger Things, with a not-so-spooky cease and desist letter. %CUT% The popularity of Stranger Things seeped into the culture. So much so, that in August 2017, Chicago-based Emporium Arcade Bar opened a pop-up location called “The Upside Down” which was designed to look like the sets from the series. The only problem was that they didn’t get permission from Netflix. Netflix’s in-house lawyers sent a cease and desist letter. Netflix took an even-tempered, but effective, approach. The letter could be summarized but it’s much better to see it in its entirety:

The Defend Trade Secrets Act of 2016 can go nuclear to stop misappropriation. %CUT% The Defend Trade Secrets Act of 2016 (“DTSA”), which created a federal cause of action for misappropriation, has one amazing feature that’s new to trade secret litigation. It allows the court to order seizure of stolen trade secrets in “extraordinary circumstances” without advance notice. This has been called the “nuclear option”. Because it’s a draconian remedy, courts have been reluctant to enter seizure orders. The recent case of Mission Capital Advisors LLC v. Romaka, gives a clue for determining extraordinary circumstances. According to court documents, Romaka had downloaded Mission Capital’s entire 65,000 person client list while he was receiving employment offers from Mission Capital’s competitors. In granting an order for seizure, the court cited Romaka’s activities such as downloading the files while he was absent from work for several weeks; he said that he deleted the files, when he hadn’t; and he had downloaded other proprietary information and stored it on his computer. Although Romaka was cooperative originally, he didn’t respond to Mission Capital’s attempts to contact him. The court ordered U.S. Marshalls to go to his home, make a forensic copy of his computer and then permanently delete the files.

WHY YOU SHOULD KNOW THIS. The enforcement of on-line terms and conditions has been problematic for courts. The amorphous quality of an on-line terms and conditions means there is no signature demonstrating agreement, no version control and no way to verify that a party actually read the terms. So, many courts have come up with a test for enforceability. The primary components are that (1) the terms and conditions have to be easily accessible; and (2) the user has to do something affirmative to show agreement. According to the Second Circuit Court of Appeals, Uber was able to show both components in this case. Of note is that Kalernick couldn’t have created his Uber account without agreeing to the terms. So Kalernick’s faulty memory about it was not an excuse. Alas, Uber may have won the battle and lost the war by participating in the litigation before it sought to enforce the arbitration clause.

Prior art can stop a patent. %CUT% Dr. Steven Chudik sought to patent an implant for a portion of the humerus bone that would be utilized as part of shoulder replacement surgery. The Patent Trial and Appeal Board held that a French patent barred issuance of the patent as prior art. The Federal Circuit affirmed. So Dr. Chudik won’t be getting a patent.