OP-IP

Tuesday, January 20, 2015

Attempts to Register Intellectual Property Rights in the Slogan "JE SUIS CHARLIE" have Missed the Mark

At last count, over 120 trademark applications have been filed in the French trademark office for the phrase "JE SUIS CHARLIE." Included is an application by Joachim Roncin who is a graphic designer in Paris who claims that he is the true creator of the now ubiquitous phrase and the graphic design (shown to the left) of JE SUIS (white) above CHARLIE (gray) on a square black background.

The French trademark office, the INPI, issued a press release (in French) saying that it has rejected over 50 registrations based on a "lack of distinctiveness" in the phrase. Translation: (into both English and plain non-legalese language), the phrase, "JE SUIS CHARLIE", does not qualify for trademark protection since the phrase is "too general" and not associated with (or identify) a specific origin (originator, owner) of goods or services. As reported by a colleague, Amy Cahill of a sister publication of OP-IP, Trademarkology, in her article "Lawyers Make Good Lovers", it is not always so easy to secure trademark protection for slogans and phrases. Examples of registered trademark phrases/slogans which are associated with a good or service include "You deserve a break today" and "i'm lovin' it" both for McDonald's and "JUST DO IT" for Nike.

Although JE SUIS CHARLIE may miss the mark for trademark protection, Joachim Roncin has other intellectual property protection avenues to pursue. For example, the JE SUIS CHARLIE logo (shown above) is entitled to copyright protection for the artistic expression of the layout, e.g. the white font JE SUIS over gray CHARLIE on black square background. In addition, design registration (e.g. European design registration (OHIM) and U.S. design patent protection) may be available to cover the design if applied to a specific article of manufacture or product.

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Monday, December 29, 2014

Second Annual top OP-IP Intellectual Property News Stories

'Tis the season for the mainstream media to wax nostalgically over the past year's memorable events. This past weekend, there was a reprieve from the "year in review" on at least one news outlet as CNN went into its trademark 24-7/wall-to-wall coverage of missing jetliners to report the disappearance of Asia Air Flight QZ8501. Notwithstanding this one outlier, we are once again inundated with stories of the ALS Ice Bucket Challenge, the Republican takeover of the U.S. Senate, the polar vortex, etc. Not to disappoint, here at OP-IP, we too, look back on the memorable blog posts of 2014.

In the tradition of Casey Casum once again enjoy the Top Ten OP-IP blog posts of 2014....

10. Love on the Rocks: Trademark Custody Battle When Going Through a Corporate Divorce

9. IP and Innovation: Are we heading for Star Trek or Star Wars as Science Fiction becomes Science Fact?

8. GPS (Guidance for Patent-eligible Subject matter) to Direct the U.S. Patent Office in view of Alice Corp. v. CLS Bank Int'l and the USPTO Preliminary Instructions

7. Aereo's Online Streaming Broadcast TV Caught Between a Rock and a Hard Place

6. iPhone "dressed" in Blackberry's clothing? The 'keys' to understanding a 'case' for trade dress infringement

5. Increasing wave of secret Internet communication

4. Supreme Court says, "'No, You CANNOT Hear Me Now!' Let Alone Search my Cellphone Unless you get a Warrant" in RILEY v. CALIFORNIA

3.Patented Tobacco Plant Genetically Engineered to Produce Antibodies Against Ebola gets Boost to Treat Dr. Kent Brantly and Nancy Writebol

2. “Stairway to Copyright Infringement”- Step one in Spirit's uphill climb to prove Led Zeppelin's 'Stairway to Heaven' infringes its copyright'

1. Disney's "Frozen" in Hot Water Over Alleged Copyright Infringement

Happy New Year 2015!

And for those who are anxious to relive the magic of OP-IP 2013 click here to see the top posts.

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Wednesday, December 3, 2014

Love on the Rocks: Trademark Custody Battle When Going Through a Corporate Divorce

Companies often own valuable intellectual property including trademarks which companies use to identify themselves and their goods and service. For example, the intellectual property rights may include the name of the business. But what happens to the trademarks including company name if a company breaks up or splits apart. For example, if a company splits in two or a partnership dissolves, who among the parties to the breakup owns the trademarks.

This breakup scenario is common place among musical bands where eventual break-ups strike a familiar cord. Examples of this can be seen in the breakup or departure of members of the band Boston, Van Halen, Herman’s Hermits, the Animals, and New Edition to name just five.

One possible way to plan for the possible breakup is the use of an analogous tool to a prenuptial agreement prior to marriage. A partnership agreement, articles of incorporation or like instrument, signed by the principals to the business entity, can spell out who will get the rights to trademarks including business name upon dissolution of the company.

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Thursday, October 23, 2014

“Stairway to Copyright Infringement”- Step one in Spirit's uphill climb to prove Led Zeppelin's 'Stairway to Heaven' infringes its copyright

Led Zeppelin is being sued by the band Spirit for copyright infringement based on Zeppelin's immortal song which Spirit alleges lifted portions from its guitar instrumental, Taurus. Spirit has advanced past step one in its upward climb to prove that "Stairway to Heaven" infringes Spirit's copyright by successfully defeating Led Zeppelin's initial Motion to Dismiss the copyright infringement suit. However, Led Zeppelin has been invited to take the next step by submitting new evidence showing why a Motion to Dismiss should be granted.

Leaving the procedural issues aside, and turning now to substance of the debate, does "Stairway to Heaven" infringe Spirit's Taurus guitar instrumental? In order to infringe an original work's copyright, the alleged infringing work must be deemed "substantially similar" to the original work and the alleged infringer has to have had "access" to the original work. In this case, "access" would not appear to be an issue as Led Zeppelin and Spirit toured together in 1968 and 1969.

Below are links to YouTube clips from Spirit's "Taurus" and Led Zeppelin's "Stairway to Heaven." See if you think that the opening notes in Stairway to Heaven are substantially similar to the middle guitar instrumental in Spirit's "Taurus" (e.g. starting around 0:43). Since most are familiar with the iconic guitar progression in "Stairway to Heaven," I present Taurus first. Please let OP-IP know what you think.

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Tuesday, October 14, 2014

IP and Innovation: Are we heading for Star Trek or Star Wars as Science Fiction becomes Science Fact?

Technology today would have seemed like science fiction to people fifty years ago. In fact, wireless Bluetooth earpieces, handheld smartphones and tablet computers all appear ripped from science fictions novels, movies and television programs for the 1950’s and 60’s. Recently NASA’s Ames Research Center reported its progress in creating a real-life tricorder, a device known well to Star Trek aficionados, which detects the health conditions of a patient (as well as detecting other things). While the tricorder of Star Trek only collected data and perhaps generated a diagnosis, today our “real” technology includes innovations in which human made devices are acting like humans, generating “their” own IP content. For example, the IBM supercomputer WATSON has been tasked to analyze medical databases, patient records, journal articles, etc., to identify disease conditions, create new medical diagnostic tools, and identify new therapeutic treatments.

As more and more technologies that once were science fiction are now becoming reality, we look at how IP laws can deal with futuristic technology today. While our technology continues to evolve we ask whether IP laws with their genesis in the Industrial Age are sufficient to to deal with technology of today and of the future.

On Friday October 17, at the 2014 ITechLaw Conference in Paris, Joren De Wachter and I will lead a discussion to explore these issues. We will explore:

·               Who or what can create Intellectual Property?
·               Can devices, software, etc., create Intellectual Property? If so, “who” owns the IP? The owner of the machine? The operator of the machine? The inventor of the machine?
·               Can/should IP rights apply to inventions or creations made by machines?
·               If one interacts with a computer game, and the “game” generates IP content, who owns that content? The gamer? The game platform creator?
·               Are current IP laws and associated rights and restrictions adequate to cover emerging technologies?
·               What are the IP rights / limitations of third parties who implement technological innovations?

After the presentation and discussion, OP-IP will summarize the insights and remarks of the participants.

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Monday, August 11, 2014

Patented Tobacco Plant Genetically Engineered to Produce Antibodies Against Ebola gets Boost to Treat Dr. Kent Brantly and Nancy Writebol

Dr. Kent Brantly and Nancy Writebol, infected with Ebola, are being treated at Emory University hospital with an experimental cocktail of antibodies which target the deadly virus. But these antibodies are not just any antibodies; they were synthesized and harvested from tobacco plants that scientists genetically engineered to produce antibodies against Ebola.

A team of scientists has worked for around twenty years on uses of plant-based therapeutics for the prevention and treatment of disease. In August of 2013, U.S. Patent No. 8,513,397 ("Mason, et al.") entitled, DNA replicon system for high-level rapid production of vaccines and monoclonal antibody therapeutics in plants, issued on the technology which was initially filed as a patent application in 2008. The potentially life-saving treatment remains in the experimental stages. However, the novel antibody treatment got a boost last week when Branty and Writebol became infected with Ebola. The dire conditions of Dr. Kent Brantly and Nancy Writebol led to the use of the still experimental patented technology.

While the treatment remains experimental and more testing is required before the cocktail of antibodies will be approved for treatment of Ebola, the tragedy of the outbreak and Brantly and Writebol becoming infected themselves has fast-tracked this treatment for Ebola and may result in similar antibody therapies to treat other infection diseases.

Sources:

Ebola Vaccine Antibodies Are Made in Tobacco Plants

Ebola vaccine pioneer joked about use of genetically engineered virus to cull human population

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Friday, July 18, 2014

Aereo's Online Streaming Broadcast TV Caught Between a Rock and a Hard Place

The U.S. Copyright Office has denied Aereo's request to pay compulsory licensing fees to retransmit broadcast television signals over the Internet, as cable provides pay to retransmit over coaxial cable lines. A denial letter dated July 16, 2014 sent to Aereo explains the U.S. Copyright's position, essentially saying that Aereo is not a cable service provider, and therefore, not eligible for paying the compulsory license (a.k.a. statutory license) to authorize it to retransmit the broadcast television programs.

This rejection puts Aereo between a rock and a hard place. In June, the U.S. Supreme Court (ABC et al. v. Aereo) determined that Aereo's streaming broadcast content over the Internet was a violation of the U.S. Copyright laws, in part, based on the Court finding similarities between Aereo's service and that of cable service providers. The Court reasoned that Congress intended to regulate the "type of service" that Aereo was providing, citing the compulsory licensing provisions of the U.S. Copyright Act, 17 U.S.C. § 111 (§111) Regrettably for Aereo, the U.S. Copyright Office does not find §111 covers Internet re-transmission. Therefore, Aereo, for now, cannot pay the statutory license fee to become an authorized retransmitter of broadcast television content.

For a more complete discussion on ABC et al. v. Aereo see...

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