Kings of Crunk reign in summary judgment

Christopher Baker of Kaye Scholer alerted me to the court’s grant of summary judgment in Wilchcombe v. Teevee Toons, Inc., 2007 U.S. Dist. LEXIS 6205 (N.D. Ga. Jan. 26, 2007), a case whose earlier proceedings I blogged about here. Wilchcombe involved a producer who created a song as an interlude for another performer’s rap album, wasn’t paid, and sued for copyright infringement and false advertising.

The court granted summary judgment against plaintiff’s copyright claim because it found that any reasonable jury would find that defendants had a nonexclusive oral license to use the work: the plaintiff knew that defendants planned to include the work in the album, submitted it to them for that purpose, and solicited their input to make it more suitable for the album. Plaintiff obviously has a breach of contract claim – he should be paid for his contribution – but not a federal copyright claim. (The court found that there were genuine issues of material fact about whether certain defendants were coauthors, based on changes they made to the work before putting it on the album. Coauthorship doesn’t relieve them of an obligation to pay; plaintiff would then have an interest in a share of the profits from the song. As far as I know, however, no one has litigated the case of the faithless coauthor who grants a zero-royalty license in order to harm the other coauthor, or in order to further his own individual interests, as might have happened here.)

Plaintiff’s false advertising claims had survived a motion to dismiss as sufficiently distinct from the reverse passing off claim rejected in Dastar. On summary judgment, however, as I expected, plaintiff couldn’t show the elements of a false advertising claim. Specifically, the court found that he hadn’t shown he was in competition with defendants (this is the only shaky part; he participates in the same market for rap recordings, so why wouldn’t he be a competitor as well as a collaborator?); hadn’t shown that the false credits were “commercial advertising or promotion,” since they were only visible to people who’d already purchased the album; hadn’t shown that the credits were material to consumers in any event; and hadn’t shown that he was likely to suffer harm from the false credits. A pretty comprehensive dismissal, reinforcing my conviction that the average Dastar-esque claim cannot be successfully repled as a false advertising claim. If an extraordinary false credit claim can meet these standards, then that’s good evidence that the law should grant a remedy in that unusual case.

The Indian Arts & Crafts Act as a trademark statute

Jennie D. Woltz, The Economics of Cultural Misrepresentation: How Should the Indian Arts and Crafts Act of 1990 Be Marketed?, 17 Fordham Intell. Prop. Media & Ent. L.J. 443 (2007): The most impressive piece of student writing I've read in a while. This note considers the IACA as a trademark and false advertising statute, going beyond the standard analysis (the law requires membership in an enrolled tribe as a condition of labeling arts & crafts "Indian-made," which creates problems of over- and under-inclusiveness for the "authenticity" that most buyers seek) to consider how the IACA compares to the Lanham Act. She concludes that IACA's rules on issues like strict liability should differ from Lanham Act rules, even though courts so far have treated IACA as just another trademark/designation of origin law. While Woltz's proposed solutions seem problematic, they are so precisely because the question of defining authenticity is so bound up with issues of power and control.

Trademark and advertising law always contain tensions between protecting consumers and regulating relations between businesses; IACA makes the tensions more explicit and more personal, and thereby offers us an opportunity to analyze what we really care about when we call ad claims "false" or "misleading."

Nontransferability of college credits justifies a consumer protection claim

Daghlian v. DeVry University, Inc., 461 F. Supp. 2d 1121 (C.D. Cal. 2006)

DeVry University is one of the largest publicly held for-profit higher education companies in the country, offering programs in technology, business, and management. According to the complaint, plaintiff Saro Daghlian was a DeVry student in California from April 2002 until October 2005, studing Electronics Computer Technology. Before he enrolled, he met with a DeVry recruiter, who told him that DeVry was an accredited college where students were able to obtain degrees, and that, unlike technical colleges that give students certificates that cannot be used towards advanced degrees, academic credits from DeVry were transferrable to a wide variety of other academic institutions. The recruiter did not give Daghlian any documents explaining that DeVry credits were not likely to be accepted by other colleges, and that he would have to start his education over if he chose to attend another college. Relying on DeVry's representations, Daghlian signed an enrollment agreement. He ultimately incurred approximately $40,000.00 of educational debt. He sued in state court; defendants removed, then moved to dismiss.

The court concluded that Daghlian was entitled to bring a private cause of action against DeVry under the California Private Postsecondary and Vocational Education Reform Act of 1989 (a question complicated by what the court determined was an obvious drafting/numbering error in the statute), which requires explicit written disclosures about transferability of credits, prohibits false and misleading inducements to enroll, and requires disclosure of all material information. Further, the court held that DeVry was not exempt from the disclosure requirements, despite a state administrative agency’s interpretation of the law to the contrary.

DeVry argued that Daghlian hadn’t established his standing to bring false advertising and unlawful, unfair, and deceptive business practices claims under Proposition 64’s requirements: he hadn’t actually attempted to transfer to another school that refused to accept his credits, so he hadn’t been forced to repeat courses or incur additional tuition costs. Proposition 64 requires injury in fact, but the court concluded that spending money in reliance on DeVry’s representations about transferability, as alleged, satisfies that standard. He received some value from his $40,000 in tuition, but not the advertised value.

National Geographic litigation: going out with a whimper?

Auscape Int’l v. National Geographic Society, 461 F. Supp. 2d 174 (S.D.N.Y. 2006)

Freelance photographers and writers who created images or wrote text that appeared in the National Geographic Magazine sued the National Geographic Society and a number of its licensees for reproducing their works as parts of CD-ROM collections of images of past issues of the Magazine. After their copyright and Lanham Act claims were rejected, and after the Second Circuit affirmed that result in a parallel case, the parties renewed their summary judgment motions on the remaining state-law claims for breach of contract, breach of fiduciary duty, and conversion against the Society, and for unfair competition, unfair trade practices under California law, unjust enrichment, involuntary trust, commercial misappropriation in violation of the common law right of privacy, and violation of California’s statutory right of publicity.

Preemption kicked out: (1) the unfair competition claims, which duplicated the Lanham Act false designation of origin claims (based on the Society’s placement of a copyright notice in its own name on the CD-ROMs); (2) the unjust enrichment claims, which were based on defendants’ profiting from copying plaintiffs’ pictures; (3) the involuntary trust claim, which was predicated on the theory that defendants misused plaintiffs’ property (their copyrighted photos); and (4) big chunks of the unfair trade practices claims. (The remaining unfair trade practices claims were also dismissed because the court found that plaintiffs’ allegations of unlawful conduct failed on other grounds.)

Because the court found that each annual edition of the CD-ROMs was a continuation of the initial conduct of producing the CD-ROMs, rather than a new breach or act, most of the contract claims were time-barred, since the plaintiffs didn’t sue for years after the CD-ROMs first existed. The remaining contracts allowed the Society to reproduce and to license others to reproduce entire issues of the Magazine, and because that’s all the CD-ROMs did, the court rejected the surviving contract claims.

Likewise, most of the tort claims were time-barred. California has enacted the Uniform Single Publication Act, which covers right of privacy claims specifically as well as other torts founded on publication. Under California precedent, a paperback edition of a work is a “new” publication, compared to a hardcover edition, and thus gives rise to a new libel claim, because the paperback is designed to reach a new audience that was unwilling to pay hardcover price. Here, however, plaintiffs had no evidence that later editions of the CD-ROM were less expensive or formatted differently so that they targeted a new market. Instead, successive editions include the entirety of earlier additions, plus new material. Thus, the instant case was more like a California case involving different editions of the same issue of a newspaper, which a state court held was a single publication under the USPA. Like a later edition of a paper updated with more timely information, the CD-ROMs targeted the same audience at a different time, and new releases didn’t restart the limitations period.

The remaining plaintiff argued that the Society owed a fiduciary duty to contributors to ensure that proper credit was given for each contribution and to prevent unauthorized copying of the contributions, which was breached because the CD-ROMs allow users to make unauthorized, uncredited copies of individual images outside of the context of the magazine. This seems clearly preempted. Since fiduciary duty isn’t based on agreement between the parties but imposed by law I can’t see an extra element here that would make this different from a contributory infringement claim. Nonetheless, the court resolved the claim on the ground that publishers are not in a fiduciary relationship with contributors, but rather a standard arms-length business relationship. Likewise, plaintiffs failed to make out a conversion claim for their transparencies and negatives under California law.

The court also determined that the parties’ contracts clearly gave the Society a right to use the plaintiffs’ names to identify them as photographers as part of the overall reproduction of the Magazine. That was the end of the privacy and publicity claims.

Sometimes a laundry list of causes of action can actually produce a success or two among failures. But, in an area in which courts are increasingly paying attention to preemption (and related interpretive concerns), often enough a loss on the big claims generates momentum on the minor ones.

Avocado's number: For Kraft, less than 2%

That is, avocados constitute less than 2% of Kraft's guacamole dip. This has produced a lawsuit, and a subsequent relabeling: it's going to be guacamole "flavored" dip.

There's a dip in here somewhere -- if not an avocado. The U.S. Food Policy blog has more on the relevant regulations. Here's a law firm soliciting "guacamole" complaints about various producers, including Kraft.

Buzz marketing becomes tick-tick-tick marketing

Marketers are trying increasingly extreme stunts to get our attention. In these security-conscious times, however, the results can be ... unanticipated. And invite federal charges.

Tragic irony or poetic justice?

Klayman v. Judicial Watch, Inc., 2007 WL 140978 (D.D.C.)

Larry Klayman is the founder of Judicial Watch, a nonprofit known for its litigiousness, mainly against various government officials. He and a Judicial Watch donor, Louise Benson, sued Judicial Watch after Klayman left the organization, alleging fraudulent misrepresentation, breach of contract, unjust enrichment, violation of the Lanham Act, violation of Florida’s statutory right of publicity, and defamation.

Benson’s claims centered on a $50,000 pledge she’d made to support Judicial Watch’s purchase of its building, $15,000 of which she’d actually donated before things broke down. She was promised some naming recognition in the building for the pledge, but allegedly the post-Klayman Judicial Watch abandoned plans to buy the building even as it continued to solicit donations by pretending that it still intended to do so. Though the court held that Benson had adequately pled the elements of fraudulent misrepresentation, breach of contract, and unjust enrichment, those claims only covered the $15,000 she’d already donated and thus did not meet the federal jurisdictional minimum. Because her claims were not related to the same nucleus of operative fact as Klayman’s federal claim, the court dismissed them.

Klayman did somewhat better. His allegations: In 2003, he decided to leave Judicial Watch to run for Senate in Florida. Thus, he executed a detailed severance agreement with Judicial Watch. Before he left, he discovered that, contrary to earlier claims, his potential successor Fitton didn’t have a college degree. As a condition of stepping down, Klayman insisted and Fitton agreed that Judicial Watch would hire a qualified person to head the organization. Instead, Fitton maintained control. Moreover, Fitton has been a poor steward of the organization and refused to pay Klayman amounts due under the severance agreement. Thus, Klayman sought recission – to be returned to the Chairmanship of Judicial Watch – as well as damages and specific performance. The court refused to dismiss his recission claim at this stage, though acknowledged that it might be a bit awkward to reinstate him.

Klayman also alleged that, more than a month after he stepped down, Judicial Watch sent a fund-raising letter that falsely represented that Klayman was still Chairman and General Counsel of Judicial Watch, and used Klayman's name and image without permission. Confused donors relied on Klayman’s supposed connection to the organization in making donations. This conduct is the foundation of Klayman’s Lanham Act and right of publicity claims. Though Klayman alleged both false designation of origin under §43(a)(1)(A) and false advertising under §43(a)(1)(B), the court pointed out that his allegations really were false designation of origin claims and analyzed them only on that basis.

Klayman sufficiently stated a claim for false endorsement: he alleged that he was a celebrity within the nonprofit/legal community, that Judicial Watch deliberately used his name and image to confuse donors as to his continuing affiliation with Judicial Watch, and that Judicial Watch’s actions succeeded in confusing donors and getting contributions out of them. The court reserved decision, however, on whether Klayman would ultimately have to prove that he has an economic interest in his name and likeness in order to prove that he has protectable rights under §43(a). This is rarely an issue that comes up in Lanham Act celebrity cases, because most celebrities do have monetizable personas. Whether Klayman could make any money through endorsements remains to be seen.

Florida’s right of publicity statute bars commercial or advertising use of a person’s name or likeness without express written or oral consent. The court refused to dismiss Klayman’s claim, but noted that it would require Klayman to explain why he should be allowed to use Florida law when the mailing came from DC, he’s suing in DC, and his allegations of injury in Florida are “sparse at best.”

Finally, Klayman alleged defamation based on three sets of false and misleading statements. First, in its 2003 and 2004 Form 990 tax returns, Judicial Watch allegedly made false and misleading statements that Klayman owed Judicial Watch money. The returns were published on Judicial Watch’s website. Second, after Klayman filed his initial complaint in this case, Judicial Watch allegedly told its employees that Klayman had sued because he owed Judicial Watch a significant sum of money, even though Judicial Watch knew that “Klayman did not, individually, owe Judicial Watch any money.” (I wonder what that “individually” means there.) Third, Judicial Watch allegedly made similar statements that were published in a number of media outlets, including The Washington Post, The Washington Times, World NetDaily.com, and Slate.com.

For the first category of statements, the court found Judicial Watch absolutely privileged. The common law provides that a person who’s required by law to publish something defamatory is absolutely privileged to do so. As a §501(c)(3) nonprofit, Judicial Watch is required to make its tax returns publicly available, and the IRS specifically provides that this may be done by posting the returns on a website. Klayman argued that Judicial Watch could have complied with the law by making the returns available on a more limited basis, but the court reasoned that it is the requirement of publication, rather than the scope of distribution, that triggers the absolute privilege. The other two sets of statements, however, were not absolutely privileged and were sufficiently specific to survive a motion to dismiss.

Separately, Klayman alleged defamation based on Judicial Watch’s alleged alteration of favorable press quotations originally made about Klayman so that they referred to Judicial Watch instead, and posting of the altered quotations on its website. The court wasn’t entirely sure what claims the altered quotation allegations were supposed to support, but settled on defamation based on the structure of Klayman’s complaint and briefing – Klayman argued that the alterations were defamatory because they harmed Klayman’s reputation as an effective advocate and litigator. The court pointed out that the altered statements couldn’t be defamatory because as altered they weren’t “of and concerning” Klayman. Perhaps Klayman could have alleged reverse passing off, but that seems difficult – reverse passing off of what? Even if Dastar didn’t exist, appropriating someone’s good review is not the same thing as appropriating that person’s services. Can there even be reverse passing off of services? Arguably, attributing someone else’s favorable review to yourself is false advertising (and perhaps Klayman is really a competitor, or potential competitor, in the market for conservative public interest donations). Even there, though, the altered quotations were apparently paraphrases of statements various publications had made about Klayman’s activities while he was running Judicial Watch, in which case Judicial Watch is just as entitled to the favorable press as Klayman, so there’s nothing materially false about the advertising.

Patry on Father Drinan and Copyright

A copyright legislation-focused memorial here. Father Drinan, as everyone says, was tirelessly interested in everything around him, and most especially in doing justice -- including for authors and educators. It was my privilege to be his colleague for a too-brief time.

Disparagement of a product class as advertising injury

Acme United Corp. v. St. Paul Fire & Marine Ins. Co., 2007 WL 186247 (7th Cir.)

A competitor sued Acme for making false and disparaging statements in Acme’s advertising (specifically, claims centered on the idea that in its ads and on its packages that its titanium scissor blades were better than stainless steel scissor blades, when its scissors contained negligible amounts of titanium). Acme tendered the lawsuit to its insurer St. Paul, which denied Acme’s request for coverage and disclaimed any duty to defend. Acme’s policy covered “advertising injury” (which was defined to include statements that disparaged others’ goods). Acme settled and sued St. Paul; the district court granted summary judgment to St. Paul, but the court of appeals reversed and remanded for entry of summary judgment in Acme’s favor and for a determination of damages.

The court of appeals found that the policy, and its use of the term “disparage,” was clear and unambiguous. The competitor’s complaint alleged that Acme made a false comparison, to the competitor’s detriment, sufficiently alleging “disparagement.” The district court denied coverage because, though the ads disparaged stainless steel scissors, they didn’t specifically disparage the competitor’s stainless steel scissors. The court of appeals found this unconvincing, given that the complaint specifically alleged that Acme’s statements were directed at the competitor’s products and that the competitor lost sales as a result. The court of appeals said it therefore didn’t need to decide whether an ad must specifically name another producer or product to “disparage” under the policy language, though it noted that the insurer could have written the policy to cover only situations in which a specific producer/product is named.

Comment: this really seems like a no-brainer: False advertising claims = advertising injury coverage. Assuming standing requirements are met, any producer of a product should be able to contest a party’s false advertising about that product, and that’s “advertising injury” under any reasonable interpretation of a standard advertising policy.

Google v. Stoller

Here's something that will make Google very few new enemies, and perhaps some new friends: As reported by the TTABlog, Google has sued Leo Stoller, the well-known trademark "entrepreneur," for false advertising, RICO violations (the predicate acts being state-law extortion and wire and mail fraud), and unfair competition. The complaint, 222 pages including the exhibits, is here.

I've said a couple of times in this space that there's no provision in trademark law penalizing false claims of trademark ownership, or even false claims to own a federal registration, in contrast to the rule for patents. Google has brought its claims under the Lanham Act's general prohibition of false advertising; not only does it dispute Stoller's claims to own a federal registration to the mark "Google," but its allegations also encompass Stoller's claims to own common-law rights in the mark, representations that he could license the mark, representations that he'd prevailed in numerous court cases, and representations that "99% of [his] opponents opt to settle."

The obvious question is whether Google has Lanham Act standing. If the relevant market is the market for licensing trademarks, then Google seems to be a consumer rather than a competitor. If, however, Stoller asserts rights in goods and services sufficient to give him standing to oppose Google's registrations before the PTO, is he estopped from denying competition? My guess is not; noncompetitors can be operating in categories sufficiently related to justify oppositions, besides which Stoller's oppositions have all been rejected.

Evil thought: if Google is using marks in commerce through its AdWords program, then probably they are competitors (though Google doesn't claim to be able to license marks, only to sell them as advertising keywords).

Assuming Google can get past the standing hurdle, are misrepresentations of trademark ownership misrepresentations of the "nature, characteristics or qualities" of Stoller's goods and services? The phrase has been interpreted expansively in the past, and should be here, whether we think of the relevant services as Stoller's licensing services or the relevant goods as Stoller's supposedly Google-branded products. Usually, a misrepresentation of trademark ownership would not be material, but the context here makes it so. (On the other hand, the reason it's material is that Google is the target/consumer, so we're back to the standing issue. State-law fraud/consumer protection claims might have been better under the circumstances.)

Final thought: Whatever Stoller's other characteristics, he doesn't suffer from low self-esteem. In his communications with Google, he promised that his threatened lawsuit would bring Google's stock price below $5 and would result in Google's "total destruction." Even the Author's Guild doesn't make those kind of claims about Google Book Search, and that really could be bet-the-company litigation. Did Stoller really think that his rhetoric would avail him against this ten-ton gorilla?

It will be interesting to see what happens next.

Baby Einstein, marketing genius

Slate has a story on Baby Einstein and the at best ambiguous evidence supporting its claims to enhance infants' mental development. The American Academy of Pediatrics recommends no TV for kids younger than 2 years old, and the concern is that the shows crowd out activities like unstructured play that are superior for mental and physical development.

In May, the Campaign for a Commercial-Free Childhood (represented by Georgetown Law's Institute for Public Representation) filed a complaint with the FTC seeking to have Baby Einstein and Brainy Baby investigated and enjoined from making unsubstantiated claims. This is an obvious case where government can do what Lanham Act suits won't: no competitor has any incentive to challenge the basic efficacy of baby videos. Likewise, consumers are unlikely to have the resources or the information to challenge these claims.

FTC rules require substantiation for advertising claims, unlike the private actions that require plaintiffs to prove falsity. The big question here is whether any research-based substantiation is required for claims to enhance infants' mental development, or whether anecdotal testimonials suffice. Baby Einstein and Brainy Baby have plenty of satisfied customers, but the research all goes the other way, and it's certainly possible that customers' babies would be as smart or smarter if they'd been playing with blocks instead. For health claims, the FTC requires more rigorous substantiation than for ordinary claims, in part on the ground that consumers expect that health claims are backed by scientific evidence. Are "brain development" claims similarly likely to be interpreted as claims that controlled/replicable studies show that the videos are good for babies? I would say yes, especially given parents' susceptibility to claims that things are good for their babies.

Full disclosure: as a parent of an infant, I own a Baby Einstein video, but I've never opened it -- like other anxious parents, I'm vulnerable to lots of pressure and advice and prone to second-guessing. It would be awfully nice if I could guarantee him admission to the college of his choice by careful video selection now. My son also watched a Sesame Beginnings DVD once, but he showed little interest in the Muppet Babies, and we haven't been back.

Should government speech be free?

Free as in beer, that is. This story indicates that a watchdog group is criticizing the BBC's plans to make its programs available free on the internet on the ground that this will unfairly compete with, and discourage investment in, the private provision of content. My first reaction was disdain; the common content providers' attitude that it's unfair to have to compete with free is both ugly and silly.

But maybe I should be more skeptical of free government-provided content that could be provided by other sources -- that is, editorial and entertainment programs, as opposed to reports drawing on resources the government is uniquely positioned to marshal, such as statistical data. Perhaps what the BBC is offering is the circus part of bread and circuses. (Ah, Torchwood.) Government already has a bully pulpit or two. If Neil Netanel is correct that an independent copyright-supported sector is an important counterweight to government views, then perhaps government content sources shouldn't be allowed to undercut that sector on price as well.

Ultimately, I'm still on the BBC's side. Given that its programs are already produced with public funds and available to anyone who pays the TV license fee, the marginally increased competition seems unlikely to drive private producers out of business, and it could provide people with access they'd otherwise lack. But I might not be as sanguine about the system if I thought the BBC was an Orwellian propaganda machine, producing slick ads for government policy in the guise of harmless entertainment.

In the US, government propagandists have increasingly inserted their material into supposedly independent news reports. Because news is low-margin, many outlets are happy to take government-provided content and pretend that it's their own reporting. This seems to me much more detrimental to democratic principles than BBC-branded entertainment, and it's direct subsidy rather than competition.

False advertising-related CAFA decisions

CAFA Law Blog reports on two recent decisions -- one involving a consumer false advertising class action, and the other a competitor false advertising class action – interpreting CAFA to place the burden on the removing defendant to prove that CAFA’s jurisdictional requirements are met, including numerosity and amount of monetary relief sought.

A Million Little Lawsuits

Samantha J. Katze, Note, A Million Little Maybes: The James Frey Scandal and Statements on a Book Cover or Jacket as Commercial Speech, 17 Fordham Intell. Prop. Media & Ent. L.J. 207 (2006): A useful overview of the legal background for consumer protection lawsuits against publishers. I disagree with Katze’s conclusion – that statements on a book cover should never count as commercial speech for consumer protection purposes – but it’s still a concise and clearly argued piece. (For one thing, Katze’s argument skips over the false designation of origin problem, as with Stephen King’s The Lawnmower Man or false claims that a biography is authorized. If that’s noncommercial speech, then, I would argue, either trademark law or First Amendment law is going to end up damaged, and given the likely equities in such a case I’d fear for the First Amendment.)

One factual update: as discussed earlier here, the JT Leroy saga has resulted in litigation. Katze suggests that the different levels of outrage to which Frey and Laura Albert were subject is evidence of some underlying uncertainty about just how bad it is to fool people in a memoir or a memoirish piece of writing, but one could also argue that Frey’s greater commercial success – not to mention the fact that he positioned his book as a real memoir, rather than a work of fiction with “autobiographical” elements – accounts for the greater backlash.

ETA to correct spelling of Katze's name.

If I am not generic, who am I? If I am generic, what am I?

(With apologies to Hillel.) The Seattle Trademark Lawyer reports on a recent California district court decision finding "kettle" generic for a type of potato chip. Briefly noted: a chip industry leader, whose testimony the court found credible and persuasive, described "kettle" as a generic term -- like, he said, Xerox and Kleenex, which he believed used to be trademarks but now referred to photocopiers and tissues generally.

I teach my students that Xerox and Kleenex are the best examples (perhaps now joined by Google) of modern marks that will never be declared generic by a court despite widespread generic use by ordinary consumers. Here, an experienced marketer recognizes that people use Xerox and Kleenex generically, while simultaneously recognizing that there are specific companies behind Xerox- and Kleenex-branded products. And I doubt most consumers are any different -- depending on what precise question you asked them, they'd say both that Xerox is a specific source of copiers and that another name for photocopier is "xerox machine."

What I find particularly interesting about the comparison is that, unlike Xerox or Kleenex, "kettle" has always had an obvious generic meaning -- the chips were cooked in a kettle. Rather than suffering "genericide," "kettle" was born generic. The gentleman testifying was responsible in significant part for creating the kettle segment of the potato chip market, so he understandably feels like he's lost some proprietary rights now that the market recognizes that segment as a distinct entity -- but he really hasn't.