HarringtonLaw wrote:
Let's break this down:
A writes a song and records and publishes it.
B re-records A's song in karaoke format without express permission, but pays a mechanical royalty on sales. B puts B's trademark on the track and sells a copy to C.
C makes 30 copies of B's karaoke track, leaving B's trademark on it, and sells them to others.
B sues C for trademark infringement.
C says, "I did it, but you didn't have permission to make that recording."
In that scenario, what makes you think that C wins that suit?
Does your answer change if A never asserts copyright against B?
Now, I'll help you out here by suggesting "unclean hands" as a defense...and I agree that "unclean hands" will play a role in how this gets resolved...but not in a way that is helpful to your position.
I've been drinking tonight, so there's a good chance my logic is a little off. Please help me get this right as I attempt to answer your question....
Whereas A does not assert their copyright against B in a given period of time it will be looked upon by the court as abandonment of rights to B, therefore giving legal right to B for the reproduction of A's work. So B would then have legal right to pursue a claim against C for trademark infringement as long as B did it within the time period that did not constitute B's abandonment of trademark rights to C. However, if C can prove their open use of the trademark and the copyrighted material for the given period of time without any effort to stop it from either B or A, they would enjoy an immunity from prosecution which ads to the urgency for B to make a claim against C in a timely manner.
On the other hand, C might point to D who was given the ok to utilize B's trademark without any additional purchases. C in this case purchased his harddrive from E who has been selling them without consequence from B for much longer than C has been using it. Yet C has become the object of B's attention. While this does not excuse C's behavior, it may mitigate it through the comparison of C is to D as B is to A.
It is also possible that C might compare his situation to a patent infringement case (Morton Salt (E) vs G S Suppiger (F)) wherein the court decided that a patent holder who utilized his patent to gain economic control over unpatented products would be denied all relief over infringement on his patents. This had something to do with the attempted forcing of a product purchase as a condition of permission to use another related product (a violation of the Sherman Anti-trust act).
....................
Let it be known I have no clue what I'm talking about - this all came to me in an alcohol induced dream.
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