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Movie Releases and Image Integrity: Recent Horror Film Interferes with Businesses Nationwide

Posted on: November 22nd, 2017 by Zarley Law

The first trailer for the remake of Stephen King’s 1986 It was released on April 1. The trailer racked up more than 197 million shares and more than 246 million views on Youtube–a record of note. Once starring Tim Curry as Pennywise, a shapeshifting demon clown figure, the modern It follows several children on their quest to take down Pennywise. Now released on September 8, 2017, It has grossed $635 million dollars world-wide as of October 22 and has received positive reviews, including one from the author himself.

While the film industry is praising the film’s success, not every business is thrilled about resurrection of the Pennywise character. Professional clowns are blaming the advertising, trailers, and release of It for a loss of business. Non-horror clowns are reporting damage to their image by the film manifested in losing gigs, schools cancelling clown performances, and police mistakenly associating professional clowns with horror clowns. Pam Moody of the World Clown Association released a statement and “press kit” for professional clowns during the trailer releases of the movie prior to the release date replicated below in part:

“The World Clown Association shares laughs and “comic relief” everywhere for the positive, wholesome, enjoyment of their audiences. It is true that various horror clown portrayals work against our goal. We hope our audience realizes that there are different categories in entertainment. We also recommend that young children not be exposed to horror movies which are intended for mature audiences.”

Moody strongly believes that the educational and friendly versions of clowns is being sidetracked thanks to all the attention and publicity thrown on the “scarier” versions of her profession. The bad press is leading to clowns losing their jobs and Moody is concerned. Some clowns have called for the film to include a disclaimer prior to viewing noting that the film’s main character is not representative of the profession as a whole.

What can the clowns do to save their businesses? The answer is “not much.” Since the 1970s, clowns have developed a bad reputation due to real-life horrors such as serial killer John Wayne Gacy dressing up as Pogo the Clown.

Unfortunately for today’s clowns, 2016 was not kind to the clown image in general. With a swathe of “killer clowns” impersonators popping up in cities around the U.S. and a rejuvenation of violent clowns in pop culture–such as Mr. Twisty in American Horror Story’s portrayal–clowns everywhere are taking a professional hit. Additionally, there is a common phobia of clowns generally within the United States. It is estimated that nearly twelve percent of American adults have coulrophobia, or a fear of clowns. After a group of individuals in South Carolina began dressing as clowns and luring children into wooded areas in August 2016, parents have started arming themselves on Halloween ready to attack clowns, e.g. Brevard County, Florida. Even more extreme, some counties have passed anti-clown ordinances, e.g. Kemper County Mississippi, in order to combat the occurrence of “evil clown” sightings. Many professional clowns, afraid of violence or potential false arrest, have canceled shows and appearances. For example, Moody told The Hollywood Reporter that when a fellow clown arrived early for a birthday party, he looked up to see “four police officers surrounding her because someone in the neighborhood called in a clown sighting.”

While there may not be any legal recourse available to the World Clown Association and its members, there are a few things businesses under similar strain can do. The first is to combat bad press with good old fashions positive press, i.e. Moody’s attempt with her press release and kit for working clowns. Another option is to embrace the temporary trend and modernize performances to incorporate and dispel that trend. A final suggestion is to delineate between what “is” and “is not”–meaning, Pennywise is a demon, not a ‘true’ clown. Parents, schools, and children especially, will need to be educated on a popular, positive image of the business in order for professional clowns to survive.

In the words of Stephen King, via his twitter, “The clowns are p***ed at me. Sorry, most are great. BUT…kids have always been scared of clowns. Don’t kill the messengers for the message.”

The Great State Divide—Cannabidiol Restrictions to Cannabis Trademarks

Posted on: November 20th, 2017 by Zarley Law

While the use, possession, sale, cultivation and transportation of cannabis, a Schedule 1 substances, is illegal under federal law, the government has made clear that if a state passes a law to decriminalize cannabis for recreational or medical use, it can do so, as long as a regulatory system is in place. Navigating between state and federal laws regulating the growth, usage, and sale of marijuana is a difficult task as it is, but before the state versus federal regulatory analysis can even begin, practitioners must first consider the wide variation occurring in state legislatures.

Currently, eight states provide a broad allowance of marijuana including legalization of both recreational and medicinal.[1] Twenty nine states, including those that allow recreational usage, the District of Columbia, Puerto Rico, and Guam, have broadly legalized medical marijuana.[2] Almost all of the states allowing marijuana in some form do have limitations on the amount to be possessed, registration, transportation of, types–including whether psychoactive or non-psychoactive, uses and cultivation. Most narrowly, in three states, Kansas, Idaho, South Dakota and two inhabited territories, marijuana possession and sales for any use are illegal and prohibited entirely. [3]

Let’s take a look at some recent events happening in two very distinct states.

Recently, the Iowa legislature recognized that while it is advantageous to allow immediate access to cannabis oil, before April 2017, there was no way for Iowans to get access to CBD (smoking marijuana is still prohibited). The Iowa GOP sought to change this circumstance by adding provisions to the law calling for in-state production system for cannabis oil that would also allow partnerships between other states and Iowa in order to bring out-of-state distributors into Iowa.[4] Now, however, the Iowa Attorney General’s office advised the Iowa Department of Public Health that it should not implement this portion of the law until the federal government “provides further guidance regarding state medical marijuana programs.”[5] The advisement has been heavily criticized by many people in need of medicinal marijuana within the state, and by the National Organization for the Reform of Marijuana Laws, or NORML. The pro-marijuana group reasons that the requirements for in state or multi state licensing schemes simply overcomplicates a simply need for Iowans. Thankfully, the law does still provide for two cannabis oil manufacturers in Iowa and up to five dispensaries to sell it in state–i.e., the oil could be supplied in Iowa by the end of 2018. The topic still remains heavily debated in the Iowa legislature.

In contrast, California was the first stated in the United States to legalize medical marijuana in 1996. As of November 8, 2016, California legalized the sale and distribution of cannabis in both a dry and concentrated form for adults up to one ounce of cannabis for recreational use and adults are also allowed to grow up to six live plants individually, or more commercially with a license. As of February, the state’s projected legal marijuana business is in excess of $18 billion dollars. With such substantial monetary value, California is actively taking federal regulation on all fronts of protection of their business into consideration. Until recently, it has been near impossible to receive a trademark on any cannabis product due to the USPTO’s restriction on trademarking only uses that would constitute “lawful use in commerce.”

For example, the brand “Hi”, under it’s parent company, Cannabis Sativa Inc., has been unsuccessful in trademarking their massage oil and Hi Releaf pain-relief balm. However, they may be able to find success by trademarking goods other than the illegal substance itself, such as hats, t-shirts, and other apparel. This is not ideal, however, because while other companies will be barred from using the brand on similar products, Cannabis Sativa Inc., might not be able to stop rivals from setting up Hi-brand marijuana shops or from selling knockoff Hi-brand products. Worse, in order to maintain the limited trademark that Cannabis Sativa Inc. may acquire, Hi-brand will have to keep using the products listed for the trademark–even if those products are not successful or profitable.

Another useful strategy that many other cannabis-related businesses than adopted is applying for trademarks relating to rolling papers for by providing cannabis information that will be enough of a hint that a company has laid claim to a cannabis-related trademark. As such, practitioners must craft applications wisely and advise their clients to include and maintain their particular trademark.

In addition to trademark, another alternative to solve this inconsistency with “lawful use” requirements is to seek a patent. Because there is no lawful use requirement for patents, it appears unlikely that the PTO would refuse to grant such a plant patent simply because growing cannabis is till illegal under federal law.

California’s lawmakers are taking a third route by currently proposing an amendment to California’s trademark laws that will aim to fill the gap between California’s pioneer status in the legalization of marijuana and the ability to trademark brands and businesses based on legal marijuana products. If adopted, the amendment would allow California state trademark registrations for cannabis products as of January 1, 2018. Washington, Oregon and Colorado have already allowing for registration of cannabis related marks, recognizing that federal trademark law does not preempt state common law.

AS of now, businesses trying to protect trademarks of cannabis and cannabis products really only have the option of trademark protection at common law, or through state registrations. While the fate of cannabis use in various forms is uncertain under the current federal regime, what is known is that in order to properly advise a cannabis business owner and entrepreneur, all practitioners must evaluate their client’s needs against the wide spectrum of state regulations. Perhaps as more sates codify trademark protections and classifications like Washington, Oregon and Colorado have done, national law will follow.

[1] Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington

[2] Montana, North Dakota, Minnesota, Arizona, New Mexico, Hawaii, Michigan, Illinois, Arkansas, Louisiana, Florida, Ohio, Pennsylvania, New York, Vermont, New Hampshire, Connecticut, Rhode Island, New Jersey, Delaware, Maryland

[3] Kansas, Idaho, South Dakota

[4] Barbra Rodriguez, AP, September 10, 2017

[5] Geoff Greenwood, spokesman for the Attorney General’s Office stated in an email.

USPTO AIR Makes Setting Up an Examiner’s Interview Easier

Posted on: September 22nd, 2015 by Josh Conley

The United States Patent and Trademark Office (USPTO) introduced the USPTO Automated Interview Request (AIR) Form or USPTO AIR last week.  The new online form allows applicants to simply fill in a handful of fields to identify themselves and their application, as well as propose a time for the Examiner’s Interview along with how they would like the interview to be conducted. The submitted form authorizes the Examiner to communicate electronically with the applicant to adjust the scheduled time for the interview if needed.  After the date is set any proposed amendments or other documentation can be provided to the Examiner for their review.

Spotlight: Brandon Adams Lands the Cover of Inventors Digest

Posted on: July 9th, 2015 by Zarley Law

We first met with Brandon Adams in 2012, during the preparation and filing of his first patent and trademark applications.  This young man’s exceptional ambition to innovate has continued to grow over the past few years, and has now been recognized on the cover of the July 2015 edition of Inventors Digest.  The magazine tells of his entrepreneurial journey.

Brandon’s first patent-protected invention, the Arctic Stick®, has received national recognition and the backing of a successful Kickstarter campaign.

Brandon’s drive is not limited to inventing for himself, however.  He also strives to help others in their entrepreneurial aspirations.  In 2015, Brandon founded the University of Young Entrepreneurs (UYE), an online resource for those who want to “create something great and become unforgettable!”  The UYE podcast has recently landed in the top 50 most influential new business podcasts.

In Brandon’s most recent podcast, he discusses the story of getting on the cover of Inventors Digest.  We were pleased to hear that on his way to making the cover that Zarley Law played an important role in helping Brandon move his ideas forward.

Look for Brandon’s cover story and the Inventors Digest publication t0 be available online in the near future.

Patent Rights and Death

Posted on: July 1st, 2015 by Josh Conley

One question that arises for inventors is what will happen to their issued patent rights after their death.  Determining who holds the rights to an issued patent after the inventor’s death depends on the actions taken, or not taken, during the inventor’s life.


Commonly, an inventor will assign their rights in their patented invention at some point during the application process, or shortly thereafter, to either their employer,  a corporation, or another third-party.  In this circumstance, the rights in the patent will be maintained as long as the assignment of rights has been reduced to writing and recorded with the U.S. Patent Office. [1]

Failure to put the assignment in writing will result in the assignment not being recognized. Failure to record the assignment can result in a subsequent purchaser or mortgagee supplanting the existing assignment as long as the new entity was not aware of the original assignment.

Distribution By Will

The rights in a patent can also be transferred by will or trust.  The sufficiency of this form of transfer is governed by the applicable state law. [2]


If an inventor dies without a valid will, legally referred to as intestate, then state laws govern where the patent rights will transfer to.  For instance, in Iowa, Iowa Code Sections 633.211 to 633.226 govern intestacy.

Based on a very basic outline of the Iowa intestacy rules the patent rights would first go to the inventor’s spouse, as long as there are no children from a previous relationship.  If no spouse is present, or there are children from another relationship, the rights may be passed to the children or grandchildren.  In the event that no children or spouses are present, the rights transfer to the parents.  The rules of intestacy continue on to locate potential heirs and if none are found, the transfer ultimately goes to the state through what is known as escheat.  For a more exhaustive explanation and guidance on the lineage of intestacy, consult a licensed attorney in your state.


  1. 35 U.S.C.  § 261.
  2. Akazawa v. Link New Tech. Intern., Inc., 520 F.3d 1354 (Fed. Cir. 2008).

Where is the Nation’s Most Innovative County Located? Iowa, of course.

Posted on: May 16th, 2015 by Josh Conley

CNBC reports data from the U.S. Patent and Trademark Office awarding Guthrie County, Iowa, most innovative county based on the number of patents filed per capita.  See the full article here.

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