News

Source: Statement of Use correspondence from trademark application

It has been many months since I last wrote about CPM’s bankruptcy case and Prede of Central Park Media News reminded me of that fact over Twitter a few nights ago. So I went into PACER and saw that there was a “Response Due Date” action filed on March 17th with a March 29th Due/Set date. The related documents detail the sale of U.S. Trademark No. 2,870,643, “Anime Channel”, to “an undisclosed Japanese client” represented by Smith Patent Office for $5,000.

The Motion Pursuant to Bankruptcy Code Section 363(b)(1), Federal Rule of Bankruptcy Procedure 6004(f)(1) and Local Bankruptcy Rule 6004-1(a) to Sell Trustee’s Right, Title and Interest in U.S. Trademark Registration Number 2,870,643 – I’ll shorten it to just Motion Pursuant – reveals the main reason why there has not been an auction announcement yet: “[t]he Trustee’s professionals performed a thorough inventory and analysis of [CPM's assets] and determined that there exists insufficient equity…to make an estate sale of the Assets under current market conditions.” However, the trustee, David R. Kittay, knew some of those assets “might still be of value to particular purchasers” and therefore “remained open to entertaining offers” for them “in whole or in part”.

Regarding the Trademark, the trustee “firmly believes” a private sale, rather than a public auction, is “in the best interests” of CPM’s bankruptcy estate; the trustee hasn’t received any other offers and doesn’t believe “there would be sufficient interest [in it] to justify the expense of marketing and auctioning [it].”

Also among the documents is some correspondence sent from Smith Patent Office (SPO) to the trustee firm Kittay & Gershfield, P.C. According to a December 17th e-mail, the client’s initial offer was for $800. (The Motion Pursuant states the Trustee rejected the $800 offer as too low because “the costs of consummating such sale, including seeking Court approval of such sale, would easily exceed $800.”) After some telephone conversations between the two firms, SPO sent an e-mail on January 22nd to report the client’s offer had risen to $5,000. Finally, a Federal Express was sent on March 10th with a $1,000 check enclosed as a deposit toward the trademark purchase; SPO will provide the remaining $4,000 balance upon Court approval of the sale, according to a Notice of Presentment.

So what will happen next? The Notice of Presentment of the Motion will be served by the Trustee to a number of parties including the Office of the U.S. Trustee, CPM’s counsel, each of CPM’s secured and unsecured creditors, and all parties who have filed a Notice of Appearance in the case. That notice states Kittay will present the proposed order to approve the Trademark’s sale to Hon. Shelley C. Chapman, newly sworn in U.S. Bankruptcy Judge, for signature at noon on March 29.  Any objections to “the relief requested in the Motion” (the $5,000 sale) must be received in writing no later than 10 a.m. that same day.

Background on the Trademark
I’ll conclude this post with some information about CPM’s use of the “Anime Channel” trademark based on documents I downloaded from TESS, the Trademark Electronic Search System. CPM initially applied for the trademark on August 10, 1999, and in a July 10, 2000 response to the Assistant Commissioner of Trademarks, CPM’s in-house counsel Gamal Hennesy provided the following additional information:

• Anime Channel is a unique portion of the animeone.com web portal.
• Anime Channel is one of the largest free sites for anime video and audio streams, available in either Real Player G2 configurations.
• Anime Channel provides trailers of anime programs available in VHS and DVD formats. Prospective customers who access Anime Channel can purchase the VHS and DVD formats of the programs as they view the trailer.
• The prospective customer for Anime Channel is primarily males and females ages 13 and up who have access to the World Wide Web.
• The channel of trade for Anime Channel is exclusively the internet and World Wide Web.
• The words Anime Channel do not have any significance in the anime industry.
• Anime Channel provides only Japanese animated programming. The subject matter of the programs include various fantasy and science fiction related programs available for sale on VHS or DVD formats.

The trademark registration among the correspondence states CPM first used it in commerce on November 4, 2002 – that date comes from Statement of Use documents signed by CPM president John O’Donnell, stating that it was first used “in connection with the goods at least as early as November 4, 2002″, the goods being. (It seems like an interesting coincidence that ADV’s Anime Network channel was announced soon after on November 6.) An Internet Archive snapshot of the animeone.com home page on February 29, 2000, shows “Anime Channel” in the left sidebar.

So who is this Japanese client buying the trademark and will they actually put it to use? I have a feeling that it could be Kadokawa – there already exists the Anime Newtype Channel website with some Bandai Channel integration and Kadokawa’s YouTube channel is branded “KADOKAWA Anime Channel” – but I’m wondering what other companies might have been that sole interested party.

UPDATE 3/20 2:30pm PDT: Dave of Subatomic Brainfreeze pointed out on Twitter that the YouTube channel Bandai is using to promote Gundam Unicorn is under the account name AnimeChannel. That seems to be an extension of Bandai Channel based on the b-ch.com links in the Gundam video descriptions and Top wo Narae! (aka Gunbuster) videos being region-blocked because they contain content from BandaiChannel, which is a Japan-only service.

I don’t think there would be any problems with that channel’s name and URL because I feel like the trademark being sold may have lost some distinctiveness over the years – FUNimation and Section23 (through Anime Network) have their own video portals along with their own respective YouTube channels and Crunchyroll has developed into a notable simulcast website. If the new owner did decide to enforce the trademark, they would have describe how a particular use by someone else is likely to be confusingly similar to consumers.

I should remind readers that I am not a patent or trademark lawyer so this is just an informed opinion.