So, you are busy minding your business i.e. running your fashion and entertainment enterprise when you receive a letter from a very popular musician called Ke$ha. She says the “swag” watches you sell of which you aptly named “TikTok” is infringing on her single hit song with the same name. You think, “is this lady for real? Like seriously?!” You are vexed. 24/7, it seems all you do is work on your business. No time for anything these days. Last time you checked, you came up with TikTok from concept to execution. Clocks tick, Tik Tok, get it? If you are selling a watch, logically it makes sense to call it that. You didn’t even know Ke$ha existed until her “Cease and Desist” letter. You think,”hmmmm . . . what to do, what to do.”
If you are Wimo, the company involved in this case, you take an aggressive approach and stop what we Nigerians & Nigerian Americans call “nonsense and rubbish” dead in its tracks. You don’t wait for Ke$ha to sue you. You sue her! Can you do that? YES YOU CAN! (Yes. I anticipate the 2012 election season. It will be intense. Can’t wait!)
What would you sue Ke$ha for? In Wimo’s case, you sue her asking the court for a declaratory judgment.
How Does Declaratory Judgment (DJ) Work?
We saw DJ at play in the OMG Twitter Teen case. Essentially, Wimo is saying, “Judge, I don’t owe this lady diddly squat. Could you make a ruling so the world knows I DO NOT owe this lady anything. Truth be told, I resent the insinuation, explicit or implicit, that she has made to the world, that I do.” When you ask the court to make this type of ruling, you are essentially seeking a declaratory judgment.
TIP 1: Let sleeping dogs lie. Don’t bring the fight if you ain’t ready.
TIP 2: Know your opponent very well. Never, never underestimate your opponent.
TIP 3: So what you are a celebrity? You can and will go broke from lawsuits. Think through and do your research carefully before you instigate a legal battle.
Back to the Wimo v. Ke$ha case. What will be the outcome? TikTok, TikTok . . .now, that’s the million dollar question, innit?!
“NEW YORK, May 5 (Reuters) – Party girl Kesha Sebert is wound-up over a watchstrap called “TikTok,” which she says is too close to the name of her debut single, “Tik Tok.”
On April 20, lawyers for the singer warned Wimo Labs that the name was in “flagrant and conscious disregard” of her rights and demanded that Wimo turn over its entire supply.
Now Chicago-based Wimo Labs has struck back, asking a federal court in Chicago to declare that its product, a watchstrap that holds an iPod nano, does not infringe on Sebert’s rights.
Lawyers for Sebert — who styles herself Ke$ha and describes her image as “garbage-chic” — declined to comment.
Sebert is unlikely to succeed, said David Leichtman, an intellectual property expert with Robins, Kaplan, Miller & Ciresi in New York. “She’ll have to show consumer studies to show people are making an association between her and the product,” he said.
People who are “famous for 15 minutes” are filing a growing number of claims trying to “monetize their personality,” Leichtman said. Recent examples include trademark claims by members of the cast of reality show Jersey Shore and NFL players who have claimed the rights to phrases they shout on the field.
The case is: Wimo Labs LLC v. Kesha Sebert, U.S. District Court for the Northern District of Illinois, No. 1:11-cv-02978.
For Wimo Labs: Brian Saucier and Jennifer Rojas of Deutsch, Levy & Engel.
For Sebert: Michelle Jubelirer of King, Holmes, Paterno & Berliner.
(Reporting by Jeff Roberts)”
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Fashionentlaw™ is the brainchild of Uduak Oduok (Ms. Uduak), an ex-fashion model and industry veteran turned Fashion and Entertainment lawyer. The law blog discusses hot topics in pop culture arising primarily out of the fashion industry.
As a legal practitioner, Ms. Uduak has seventeen years of experience counseling individuals and businesses within and outside the creative community. She has counseled designers, apparel manufacturers, models, photographers, retailers, graphic designers, musicians, public relations specialists, and athletes, among others, on diverse legal issues including business formation, licensing, trademark and copyright matters, contracts, intellectual property and contract disputes.
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