25 January 2012

The Boss Of Passing Off


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Two days ago I took this picture in the Serbian town of Subotica.

As you can see, a local entrepreneur is using that very famous brand to promote their own business, obviously consisting in the provision of food and drink.

The funny thing is that Hugo Boss has a trade mark registration in Serbia (albeit not for class 43) and that the Serbian Trade Mark Act protects well-known marks.

While I didn`t feel confused that the fashion brand might have something in common with a provincial restaurant in Serbia, I could not but perceive that the local entrepreneur has undertaken serious efforts to imitate both, the trade mark and the get-up of BOSS.

Thus, do you share my view that his use of the famous mark represents an unfair advantage and is detrimental to said mark`s distinctive character?

8 December 2011

Apple’s iPad Trade Mark Bumped In China


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Image: Logo de l’iPad by Rob Janoff via Wikimedia Commons
Apple ipad

As FT.com reports, a recent Chinese court ruling prevents Apple from using “its” iPad trade mark in China.

The reason therefor

seems to lie in a dispute between Apple and the Taiwanese company Proview Electronics.
Funnily, Proview is no stranger to Apple.

Somewhere between 2000 and 2004 the Taiwanese company had registered the trade mark iPad in the EU, China, Mexico, South Korea, Singapore, Indonesia, Thailand and Vietnam, but in 2006

decided  to assign

it to Apple by concluding a global agreement.

When Apple started to sell its iPad devices in mainland China, they did surprisingly encounter trade mark infringement proceedings brought by Proview Technology, the Chinese affiliate of Proview Electronics. The litigation value is said to amount to 1,6 billion USD, which is absolutely ridiculous if you bear in mind that the 2006 trade mark purchase counted some

shabby 55.000 USD

Some other reports derive Proview Technology’s combativeness from that fact that it has been insolvent for some time. The Chinese branch could thus have spotted an opportunity to cash in on Apple.

It is not Apple’s first dispute over the iPad trade mark.
The Cupertino company has so far been successful in regulating the cases arising from purported infringements and I have no doubts as to how they will end up with this particular situation.

17 November 2011

Where Pizza Meets Haute Couture


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Saw this one yesterday in downtown Sofia and could not resist to take a picture and blog on it.

Later I was somewhat surprised to find out that Escada had obtained a Bulgarian registration for their trade mark already in 2003.

Could there be room for a sound dilution claim based on Art 4 (3) of the trade mark directive?

13 June 2011

Apples Growing Clouds


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Image by Sean MacEntee on Flickr

5806315596_349d8ef626_z

Apple officially launched its much-hyped iCloud suite of services, applied for the registration of the trademark “iCloud” and entered the hostile territory of trade mark infringement: the Arizona based iCloud Communications LLC brought legal proceedings against Apple Inc before the Federal District Court for the District of Arizona.

Does it sound familiar? I personally felt reminded of Apple’s dispute with Fujitsu over the iPad trade mark. Indeed, the current situation is similar to the iPad case, but nevertheless distinctive in some important instances.

When I first read about the lawsuit I navigated to the US Patent and Trademark Office’ website and performed a search thereby processing the sign “iCloud”.
And you know what?
Apart from Apple’s numerous applications, there is only one US registered trade mark consisting of the iCloud sign and it is owned by the Swedish company Xcerion AB. The same is true also with respect to the Community Trade Mark  iCloud. Xcerion has registered both, the US and the Community Trade Mark for classes 9 and 42.

What follows is that iCloud Communications’ mark

Is Not A Registered One

Should they then qualify to claim infringement at all?

Yes, however not on the ground of registered trade mark infringement, but on unfair competition and false designation.
Indeed, iCloud Communications’ complaint relies on § 1125 (a) of the Lanham Act as well as on Arizona state law.
Precisely, iCloud Communications claims that Apple infringes upon the iCloud trade mark of iCloud Communications, because

By virtue of iCloud Communications’ long and extensive use of the iCloud Marks, its advertising and promotional campaigns and expenditure of substantial monies thereon, iCloud Communications had, prior to June 6, 2011, established significant goodwill and valuable rights in and ownership to the iCloud Marks in connection with computer telephony and electronic data transmission and storage services.

and

The goods and services with which Apple intends to use the “iCloud” mark are identical to or closely related to the goods and services that have been offered by iCloud Communications under the iCloud Marks since its formation in 2005.

Reads pretty logical, does it not?
Well,

Besides One Thing

Apple’s attempt to register and use the iCloud mark is not the first one: iCloud Communications themselves mention the previous trade mark registration of Xcerion

whose use of the mark post-dates that of iCloud Communications by two years.

So, is there any reason why iCloud Communications omitted to sue Xcerion?

Hmm, from what I read on the Internet, some wagging tongues allege that Xcerion’s Pockets

Were Not Deep Enough

Hence, observing the development of the iPhone and iPad disputes, this one is also likely to end up in a settlement agreement.

In that event Apple will have to pay a (negligible) amount of money to operate a nursery in the clouds.

From a legal point of view, however, the matter involves the (alleged) infringement of an unregistered trade mark by a registration application.
This is not really common place and thus of a greater interest for me.
I will therefore stay focused on it.

Did I miss something? It is now you turn to add -)!

21 May 2011

Tattooing Copyright


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Image by shelbysdrummond on Flickr

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I guess that it is needless to introduce the character on the image above. He has the image of a scandalous guy and he was featured in more or less such light in the film The Hangover. Did you watch it? I did and found it entertaining.

By the way, do you belong to those eagerly expecting The Hangover Part II? Well, do not be impatient if this blockbuster takes somewhat longer to come in a theater near you.

You will not believe it, if I tell you why this is likely to happen!
Ok, here I go.  The thing is that Mr S. Victor Whitmill, a tattoo artist, claims that Warner Bros

Have Infringed His Copyright In A Tattoo

Yes, you are reading this correct! Well, it is not just some tattoo – it is the tattoo Mike Tyson is wearing on his face and the same arguably worn by an actor in The Hangover Part II. While Mr Whitmill gave its permission to Mr Tyson to lawfully wear the tattoo, this has not been the case with Warner Bros.
The New York Times has brought this amusing story and it truly deserves a read.

Ok, let me address the main question here: can copyright subsist in a tattoo?

Section 102 (a) of the US Copyright Act 1976 states that

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

I would say that once Mr Whitmill establishes that his tattoo meets these criteria it will be protected under US copyright law.
What do you think, is this completely impossible? Let us have a closer look at it!

Work

First of all Mr Whitmill will have to prove that his tattoo is a work. I believe this will cause no problems – a tattoo is not different from a painting, which is definitely a (pictorial or graphic) work.

Fixation

Fixation is an essential criterion for protection under US copyright law. Section 101 of the US Copyright Act gives us the definition of what fixation is:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

Having read the definition, would you express any doubts as to whether Mr Whitmill’s tattoo is sufficiently fixed in Mike Tyson’s face? In my view, one could hardly speak of a tangible medium that is more stable than that gentleman’s visage.

Originality

Originality is the third main criterion for the copyrightability of a work. It is not defined in the Copyright Act, but can be derived from the plenty of judicial authority.
If the tattoo is a Maori-inspired design, as the NYT newspaper article tells us, can Mr Whitmill have authored it then? Following the leading case of Feist v Rural, Mr Whitmill’s tattoo shall be considered original once he establishes that

the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity

Hmm, could Mr Whitmill succeed on this point? In my view originality will be the very issue, provided, however, that the matter will be eventually fought before a Court of competent jurisdiction.

Final Thoughts

Despite my legal interest in the copyrightability of a tattoo, I would ask the same question as did the Harvard Info Law Blog:

Would this be a lawsuit, let alone a front-page NYT article, if the accused infringer wasn’t a big movie studio with a tentpole summer movie on the brink of release?

What do you think?

18 November 2009

Microsoft found liable of infringing chinese patent


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I bet that President Obama did not like this message during his visit in the People’s Republic.
According to the news reporting, Obama has again been pressing China to enforce its law on intellectual property more vigorously. And so did the chinese judicature – this time against one of the world’s largest beneficiaries in terms of intellectual property protection.
Indeed, this merits to be referred to as

“Legal Infotainment”

According to the facts, a Beijing based company, Zhongyi Electronic Ltd, claimed that Microsoft had exceeded the scope of a previous agreement to use and sell fonts, patented by Zhongyi, in Windows 98, Windows 2000, Windows XP and Windows Server 2003.

Microsoft Had Thus Infringed

Zhongyi’s exclusive rights under patent law, so Zhongyi’s claim.

Beijing’s Intermediate People’s Court No.1 followed claimant’s argument and

Ruled Against Microsoft

The court’s ruling now prevents Microsoft from importing and distributing above mentioned software products in China, but does not appear to affect Microsoft’s latest operating systems, including Windows 7, which went on sale last month.

Needless to say that Microsoft will go on appeal which – from my perspective – could make the story even funnier. I will keep an eye on that!

13 September 2009

New Commission’s communication on enhancing the enforcement of intellectual property rights in the internal market


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The European Commission has published a new communication (COM 2009/467) to the Council, the Parliament and the Economic and Social Committee. In this communication the Commission acknowledges that the Union is the home of some very large and successful businesses in the world, who consider IPR to be amongst their most precious commercial possessions. The Commission further acknowledges that counterfeiting and piracy have a dramatic and damaging effect on business in Europe, wherefore certain measures Enforcement Directive, Customs Regulation) to better combat such counterfeiting and piracy were undertaken in the past.

The Commission

Seeks to Support and Enhance the Enforcement

by complementing the existing regulatory framework with non-legislative measures to make for more collaborative and focused enforcement across the Internal Market, in particular by:

  • supporting enforcement through an EU Counterfeiting and Piracy Observatory;
  • fostering administrative cooperation throughout the Internal Market;
  • facilitating voluntary arrangements between stakeholders.

The Commission suggests that the Observatory serve as the central resource for gathering, monitoring and reporting information and data related to all IPR infringements.

The Commission views s greater administrative cooperation in the field of IPR enforcement in the wider context of a partnership between the Commission and the Member States in implementing a borderless internal market.

Concerning its last point, arrangements between stakeholders, the Commission stresses that such solutions have to be

Compliant with the Existing Legal Framework

and should neither restrict in any way the fundamental rights of EU citizens, such as the freedom of expression and information, the right to privacy and the protection of personal data.