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Iron Maiden Sues “Ion Maiden” Video Game for Trademark Infringement
by Madison Vaughn On May 28, 2019, Iron Maiden Holdings Ltd. filed a trademark infringement suit in the United States District Court, Central District of California, against 3D Realms Entertainment alleging $2 million in damages because of a new video game developed under the name “Ion Maiden.” The IRON MAIDEN mark is registered to Iron Maiden Holdings Ltd. for a variety of goods and services ranging from live musical performance to t-shirts to video games. Trademark Attorney Nicholas Wells of Legends Law Group noted that the name of the iconic rock band Iron Maiden is likely to be viewed by a court as a famous mark under the Lanham Act. As shown below, the distinctive font used by the band Iron Maiden was arguably mimicked by the Ion Maiden video game. Iron Maiden Holdings Ltd complains that the video game, “Ion Maiden,” would cause a significant portion of the public to associate the game with the rock band’s previous video game, “Legacy of the Beast.” Iron Maiden Holdings Ltd alleges that “Ion Maiden” attempts to “take advantage of Iron Maiden’s worldwide recognition” in order to sell more products. Some have suggested that the video game maker 3D Realms will assert as a defense that the plaintiff’s IRON MAIDEN trademark is generic because it refers to the historical torture device called an iron maiden, and that other sellers would need to utilize this term to sell similar products. This strikes us as a losing argument; however one feels about the music of Iron...
Three Things You Cannot Fix After Filing Your Trademark Application
With the videos and descriptions available at the U.S. Patent and Trademark Office (USPTO) at www.uspto.gov, it can seem that applying to register a trademark on the federal register is so straightforward that anyone can do it without much thought. You might even wonder why a trademark lawyer is needed. Maybe you have even considered using a service like LegalZoom that fills out the forms for a small fee. But in truth, the seeming ease of the process is deceiving, because it is easy to make mistakes when filing a trademark application, some of which could significantly lessen your legal rights and even get your trademark cancelled. Some things can be fixed—trademark attorneys regularly amend applications to comply with the requirements of a trademark examiner during the process of getting a registration. But a few things cannot be changed. If they are wrong, you’ll have to start the process over and pay another fee to the government. Watch particularly for problems with these items: Who is the Owner? The owner that you list on your trademark application must be the person or legal entity that is actually selling goods or services under the trademark (or that intents to do so). If you list the wrong owner, the application is invalid. In practice, that means that even if you get a trademark registration, someone years down the road can still attack that registration because it was filed in the name of the wrong person or company and it will be cancelled. A flaw in the...
Managing ITC Patent Litigation
When you think of products that may be investigated for unlawful importation into the United States, you probably don’t consider items like barcode scanners, backpack chairs, televisions, and pool enclosures. And yet, all these have already been investigated for unlawful importation just within this year. For all of these cases, the charges brought were intellectual property infringement. Section 337 and the ITC The International Trade Commission (ITC) is the agency responsible for investigating these cases in the U.S. Their work hinges on Section 337 of Title 19, a piece of legislation which prohibits the sale or importation of items which infringe upon a valid and enforceable U.S. patent, copyright, or trademark. Rising Trends The ITC’s own records indicate that the number of Section 337 investigations conducted each year has been rising steadily for the past half century: Prior to 1977, fewer than 10 investigations were launched per year In 1978, there were 22 investigations In 1983, the ITC launched 43 Section 337 investigations 2011 marked a record high, with 69 investigations In recent years, computer and telecommunications products have been especially prone to investigation. In 2015, such products accounted for 27% of all Section 337 investigations by the ITC. That’s the same amount as the next three product categories combined. How Investigations Start International patent infringement disputes represent almost 90% of Section 337 investigations. The process begins...
Samsung and Apple at the U.S. Supreme Court
It used to be that design patents were an afterthought—or never even filed. But few companies could miss the $ 548 million verdict that Samsung was ordered to pay Apple in 2012 based on Samsung’s infringement of Apple’s designs for the iPhone. Apple’s comment in 2012 was that the verdict showed “stealing isn’t right.” Samsung—and probably many others—fear that the result sent a message of yet another way that companies can be subject to legal attack for using things that they considered beyond the scope of intellectual property legal protections. Now Samsung has sought review of the case at the U.S. Supreme Court (see the filing here). It’s not easy to get a case accepted for review by the Supreme Court. If the case is accepted, it will be the first one on design patents in over 100 years. But it could provide a higher level of clarity on just how much innovation is needed to secure the exclusive rights provided by a design patent.
Treble Patent Damages Are Back on the Table
The U.S. Supreme Court just issued an authoritative rebuke to the Federal Circuit today. The issue? Patent damages. In particular, enhanced damages for willful infringement. In the Patent Act of 1793, Congress mandated treble damages for any patent infringement. Eventually, people figured out that this was a bit rough on innocent infringers and forty-three years later, in 1836, the law was changed to let the district courts decide when triple damages was an appropriate remedy. Fast-forward to 2007. The Federal Circuit got together in an en banc decision (which means all eighteen judges participated) and they created a new two-part test that made it almost impossible for the lower courts to award enhanced damages. Why? Patent trolls. To protect innocent infringers, and even the not-so-innocent infringers, from treble damages, the Federal Circuit’s 2007 Seagate test quite literally slammed the door on enhanced damages. Now, in a unanimous decision, the U.S. Supreme Court eliminated the Seagate test and set the patent ship aright again. The test for enhanced damages will now return to something that a patent holder can actually prove. With this decision, the district courts get back the wide discretion they held for 171 years to triple-punish the bad guys and go softer on the innocent ones, and the Federal Circuit gets a lesson in supremacy.