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I am still trying to imagine a scenario where a consumer can be held responsible for acts committed with a product during a time when the new owner was not in a position to give the permissions that the new trademark owner is seeking. How can the new owner of a trademark force an individual to provide proof of anything that would have been the burden of a different company to bear?

It can really be as simple of a fact as the consumer no longer being in possession of the material in question. Surely a consumer cannot concern himself with the whims of a consequent trademark owner after he has already disposed of the property, despite any "evidence" they have accumulated. Buying a trademark and receiving an ability to sue for past infringement does not in and of itself imply that the new company's requirements can be enforced upon it's prior use, especially as it relates to perceivable damages...

I've read these questions five times, and I still can't figure out what you're asking.

Here's a scenario:

1. On January 1, 2014, Alpha buys a bootleg hard drive with tracks that are marked with the CB trademarks and trade dress, then begins using the bootleg tracks commercially.
2. The then-owner of the trademarks and trade dress, Piracy Recovery, LLC, has a cause of action--the ability to sue--against Alpha beginning on January 1, 2014, but doesn't sue because Piracy Recovery is unaware of Alpha's acts.
3. On November 11, 2015, Piracy Recovery, LLC sells the CB trademarks and trade dress to Phoenix Entertainment Partners, LLC, together with the right to sue for past infringements.

There's no issue of "proof of anything" that Alpha must provide. The offense was committed, and the new owner has the right to sue for it dating all the way back to the commencement of the infringement, or the statute of limitations bar date, whichever is later.

Here's an alternative scenario:

1. On January 1, 2014, acting without permission, Bravo decides to media-shift the contents of his CB original media to a hard drive, then begins using the media-shifted copies (which bear the CB trademarks and trade dress) commercially.
2. The then-owner of the trademarks and trade dress, Piracy Recovery, LLC, has a cause of action--the ability to sue--against Bravo, again for trademark infringement, for making and commercially using goods that bear the CB marks and trade dress without Piracy Recovery's permission.
3. On November 11, 2015, Piracy Recovery, LLC sells the CB trademarks and trade dress to Phoenix Entertainment Partners, LLC, together with the right to sue for past infringements.

In that scenario, PEP can sue Bravo just it could sue Alpha.

Where the "proof of anything" comes in in this scenario isn't anything to do with the law--it has to do with PEP's policy to forgive what we refer to as "technical infringement" as long as Bravo submits to and passes an audit. We don't have to do that. We choose to do it because we aren't interested in pursuing cases against people who bought the material originally, met the 1:1 correspondence requirement, but just failed to get permission to copy.



What material is no longer in the "consumer"'s possession? If the consumer no longer has any CB tracks, then there is zero chance he'll be even approached by PEP regarding CB tracks.

But if the "consumer" disposed of the discs but kept the copies, I'm having a hard time discerning the difference between that and outright piracy.

As I said before, "BOHICA". With what you just posted, (Jim), you are saying that you have the right to SUE anyone that you have investigated/audited before as you know dam well that they have CB on their drives and have played them from a HD as you made them give you a copy of their song book. This means that you can "FORCE" guys like Lonnie, Chris and others to register their CB or play them from original discs, which I don't think they will.

This is ludicrous, it is like a cop saying "Hey I saw you smoke pot before it became illegal." so we are going to arrest you.

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It's all ridiculous. They are just trolling for paranoid KJs who think they have to pay to play. I would think that PEP and SC would have loved to put Chip out of business, just out of spite. If they can't nail their biggest detractor; what are the odds that they can nail anyone else? My guess would be slim to none. The monster on the wing is nothing but a fantasy. There are nothing but pirate shows around my area and not one of them has been scared into buying a GEM series. They stopped playing SC tracks for a short while but when no one else got busted, they went right back to using every song in their 300,000 song collections. They have so many songs that they can't even print out songs books. You just ask them for a song and they put it in the line up for you to sing. There's not a song that they don't seem to have and it's like that at almost every show these days.

Let me try to rephrase: I am guessing there might be scenarios where a consumer might be utilizing a Chartbuster product, pre-PEP, that may have been "noted" for having used in the manner the new company disapproves of, but the consumer may no longer have that product in their possession, which could make the future ability of proving the past ownership quite difficulty.

Also, logically speaking, aren't the logos that would be in question an inseparable part of a product that PEP had ZERO interest in, which would make proving damages pretty difficult?

I think I get what you're asking. Here's a scenario:

(1) KJ Charlie has CB original media that he's media-shifted without permission.
(2) In September 2015, a Phoenix investigator notes the existence of that condition.
(3) In November 2015, KJ Charlie hears that Phoenix has acquired the CB marks, so he sells off his CB media and deletes the media-shifted CB tracks from his hard drive.
(4) In February 2016, Phoenix sues KJ Charlie based on the September investigation.

Now, number 4 isn't going to happen. The end of our investigative process is a lot closer than that to the filing of a suit. We would regard an investigation concluded five months before a suit as stale and would "refresh" that investigation.

Now, if Charlie is still using those tracks without original media in February 2016, that's a different story.



The logos aren't an "inseparable" part of anything.

The question is, are the logos placed on the new product that's made by copying the original? You are not permitted to put our trademarks on products we don't make or authorize. That's the basic rule of trademark law.

So, since they are NOT inseparable, are you saying that you would NOT sue a person that did not retain your trademark on their digital copy, for this or any other relative reason?

Also, potentially, it wouldn't seem that trade dress is on the table, since I recall that it has been stated here in the forum that some aspects of the Chartbuster-originated "trade dress' have been retained by the Digitrax company (unless there is position for you all to sue THEM...wouldn't THAT be interesting?).

Are there other aspects of trade dress that the consumer may not be aware of, other than a font and a background color? It would be interesting to know if those types of "trade dress" can be protected in an audiovisual work...

There are programs out there that can easily change colors and or fonts in any CDG file. I've been to shows where the KJ has removed any and all splash screens from his karaoke files. You have no idea what brand track you are singing along with unless you ask the KJ what it was originally. He gives you a wink and a smile when he tells you what it started out as.

A copy that does not retain the trademarks or trade dress would not be the basis of a lawsuit against that person by Phoenix. It would, however, be a copyright infringement, which could result in a lawsuit by the copyright owner (in most cases, Digitrax).



Suffice it to say that all aspects of that issue are dealt with in our agreement with Digitrax.



The trade dress consists of the protectable aspects of the visual presentation of the video display, including the font, layout, color, and background color of the lyrics; the Chartbuster marks themselves; and the particular methods of cueing the singer--in short, those aspects of the display that are consistent across multiple tracks and that serve to identify us (or our predecessor) as the source of the goods.

Generally speaking, you can see a screen shot of a Chartbuster track and identify it as such even if the trademark is not visible; it's those aspects of the track that allow that identification of source that form the trade dress.

"...methods of cueing the singer" means the sweeps, which are a functional portion of the track. You're out of luck:
I think that KJ's would agree that sweeps -- no matter the type -- are "functional and essential" no matter the method. But you can argue the "quality of the article" all you want.
And that should include the sweeps from all the manufacturers.

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