Electric Daisy Carnival Trademark Battle

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Biletsky Law - EDCIn 2009, a trademark application for the mark “Electric Daisy Carnival” was filed on behalf of Pasquale Rotella of what is now Insomniac Holdings LLC. The trademark application alleged use as early as 1997. On April 20, 2015 Gary Richards of HARD Events filed a lawsuit seeking to cancel Insomniac’s trademark. Before diving into who owns what, it is important to understand where this lawsuit is coming from.

Starting as early as 1991, Gary Richards and Stephen Enos (also known as Dr. Kool-Aid) began hosting events under the name “Electric Daisy Carnival” in Southern California. It wasn’t until 1997 when Rotella began using the name for Insomniac’s flagship festival.

For nearly six years, Insomniac’s use of the “Electric Daisy Carnival” trademark went uncontested. Then, on June 5, 2013 Enos filed an Australian trademark application for “Electric Daisy Carnival.” After that trademark was filed, on June 21st, Insomniac filed an Australian trademark application for “Electric Daisy Carnival” as well. In addition to the filing, Insomniac also opposed Enos’ application. Taking the legal battle closer to home, some five years after the initial U.S trademark application for “Electric Daisy Carnival” was submitted, Enos filed suit in California against Insomniac claiming prior use of the mark.

While the outcome of the Australian trademark opposition and the U.S lawsuit is uncertain, Richard’s claim for ownership of the mark has thrown Insomniac back into the courts. Even though this lawsuit is likely to last for several months before any major developments occur, there is plenty of time to speculate what will happen.

Although Richards may not have federally registered the trademark, a person or a company receives “common law” trademark rights to the mark just by using the mark in commerce. However, unlike other intellectual property rights such as copyrights and patents, the user of a trademark only owns the rights to that mark so long as they are using the mark in commerce. What this means is that although Richards may have been the initial user of the mark, if Insomniac is able to show that Richards “abandoned” or failed to continuously use “Electric Daisy Carnival,” then Richards argument that he is the rightful owner to the mark will likely be met with rejection.

While the battle over the rights to the “Electric Daisy Carnival” wages on, Insomniac will continue to use the brand and has its’ flagship festival in Las Vegas lined up for next month with revenues expected to surpass the record-breaking receipts of previous years.

For more information about trademarks or to have a trademark of your own registered, contact Biletsky Law.

Fashion Distribution Agreements

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Biletsky Law - FashionThe time has come, the drawings are done and the sketches are ready to become a reality. The only thing missing now is…who is going to buy the product? Of course in many situations, this question comes up well before the design stages, but regardless of the stage of development that you are in, it is a question that needs to be answered.

For many designers and producers, a distribution agreement is the key to being able to commercially exploit a product. But before signing away the products that you’ve worked so hard on, it is important to have a grasp of what these agreements will mean for you and your product. Are you giving away too much? Are you being robbed of any credit? And of course, are you getting the maximum compensation and exposure possible?

How you obtain the distribution deal depends greatly on your goals, your product, the market and most of all, your connections. Once you have engaged the distributors and the deal is in motion, there are several important considerations to keep in mind.

Exclusivity

Similar to obtaining the deal itself, whether or not this distribution will be exclusive (either on your part or on theirs) depends on many factors. A larger distributor will likely have a multitude of designers and will not be exclusive to you. However, depending on the product line, you may be exclusive to them. This favors the distributor in that they know that because this product is being made exclusive to them, that they may be able to charge their clients more for the exclusive product and that they will have some leverage against you since you are not able to sell the product to anyone else.

Term

The term of the agreement will let you know how long this relationship is to last for. The term can be anything from just a season to several years. In addition to the initial term, there may be an automatic renewal of the term or it may need to be negotiated once the first term ends.

Purchase Order

As with most other things in this agreement, the purchase order depends on several things such as who the distributor is and what kind of product you are designing. In certain cases, especially when you are held to be exclusive to the distributor, the contracts may be either a “requirement contract“ or an “output contract.“ A requirement contract is a contract where the designer or owner delivers to the distributor as much of the product as they “require.“ An output agreement is one where the distributor will purchase everything that the owner is able to produce.

Purchase Price

The purchase price is usually what gets the designer or owner’s attention. These deals are often straight purchase orders for a bulk amount of the product either based on a unit price ($2 per shirt for instance) or based on the bulk amount ($2,000 for 1,000 shirts). These figures may vary depending on what kind of purchase order the distributor is putting in.

Conclusion

There are of course many other provisions that you should be aware of including quality control, storage, marketing, advertising, and credit. Each of these topics, like the rest of them, depends on who the parties are and what the product is. One of those provisions that a designer often regards as being important is credit. Depending on the product itself, there may not even be any credit provisions or they may be one that just requires that credit be provided on the product itself. Others may have requirements that the designer be provided credit in the area in which the product is being sold (think of the clothing department at a major retail store that says “designs by ______” or “by ______”).

What it all comes down to is that there are many deal points in distribution or licensing agreements and unless you are competent to negotiate each of these provisions, it is best to have an attorney who has experience with fashion distribution agreements to take care of this agreement for you. For assistance with your fashion legal needs, contact Biletsky Law.

 

New Mexico Tax Incentives

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Biletsky Law - New MexicoMany states around the country offer tax incentives to film and television productions in an attempt to lure the production into the state. With major motion picture and television productions comes the possibility of a state receiving a great economic benefit from having the production team located in the state as well as the use of many of the state’s resources.

While Louisiana, Georgia, and Massachusetts have been recognized as some of the states with the most favorable tax incentives, other states such as Alaska and Pennsylvania have started making a name for themselves on the list. On April 10th New Mexico has also boosted their tax incentives when Governor Susana Martinez signed a new tax incentive bill which allows production companies to pre-assign their tax rebates to third parties and which also extends a 30 percent tax credit to stand-alone pilot episodes under the condition that they shoot the show in New Mexico and encourage producers to hire and source locally.

This move marks an effort from New Mexico to join the ranks of states which offer production companies substantial tax credits in order to bring in revenue from the entertainment industry. But the new productions that may be enticed to film in New Mexico won’t be the first ones on the scene. Starting in 2008, the hit AMC television series “Breaking Bad” began their five season run by shooting on location in New Mexico.

It is no wonder that the bill signed by Governor Martinez applies to pilots which may at some point become television shows. The five seasons of filming that Breaking Bad brought to Albuquerque likely brought substantial revenue to the city and state due to the production crew and actors who stayed in New Mexico during the production as well as the locations and resources that were used throughout the series.

Although these immediate economic benefits are the majority of the reasoning behind these types of tax incentives, certain hit movies or television shows also leave a lasting impression in the area where the production was filmed. Take the sets that were used for the Breaking Bad filming for instance. Now that the film crews and sets are gone, a new type of tourism has been created in the city of Albuquerque. This type of tourism, which is often created as the result of a hit production being filmed in a certain location, is a form of “pop-culture” or “filming” tourism. Tours, guides, and maps are set up which provide tourists with information on the locations that were used for the production’s filming. http://www.visitalbuquerque.org/albuquerque/film-tourism/breaking-bad

For more information on state-by-state tax credits, contact Biletsky Law.