"it stands to reason that a party would only attempt to replicate another party's trade dress or product configuration, under license or not, if that trade dress or product configuration is perceived by the consumers as distinctive."
Sunday, 7 November 2010
Letter from AmeriKat: James Bond's gun, pre-1972 recordings, ITC patent fun, and Walgreens' "Flying W"
For the past couple of week's the AmeriKat has been balancing a pretty hefty schedule of deadlines and late nights. Her early morning starts and late night returns were beginning to grate on her nerves; the processional commute was feeling more and more like a chore than an opportunity to mindlessly follow the stream of commuters. So twice last week, while on her way to work, she stopped her blaring iPod, opened her eyes and scanned the inhabitants of her carriage. Besides the usual set of businesspersons flicking automatically through the pages of the Metro and the tourists straining their eyes at the Tube maps, she spied two distinctive objects out of the usual commuter selection: a spider and a ladybug. The spider was making a webfrom the top of one pole to the other and then casually swinging from its silk between stops. The ladybug was making its way up the arm of a large, burly looking man while he delicately watched its progress. From the otherwise indistinct, one can always find distinctiveness. (picture, left - the AmeriKat playing with the said ladybug)
Bond's gun a hit at the USPTO: Something else that has been held to be distinctive last week, this time by the USPTO, was James Bond's Walther PPKhandgun. The makers of the spy's classic weapon had previously attempted to register the gun as a trade mark, but the USPTO had concerns as to whether the gun had, in the maker's mind, a "definite aura" and "mystique". To convince the USPTO examiners otherwise, the makers commissioned a blind survey of individuals over 18 years old who own or plan to own a handgun. The results of the survey showed that about 54% of those surveyed were able to identify the PPK gun, many of whom also mentionedJames Bond as the reason for their identification. So with this convincing data before the examiner this time, the USPTO held that the mark had acquired distinctiveness and that
Although not uncommon by any means, the provision and weight of survey evidence afforded by the USPTOin this case may result in future applications for shape marks, or indeed any application that argues acquired distinctiveness, necessarily having such survey evidence in support. For more information see this report from The Hollywood Reporter.
Copyright Office to investigate pre-1972 sound recordings: Where were you in 1971? If you are the AmeriKat's age you weren't even an idea yet, but for those who remember 1971 Led Zeppelin's "Stairway to Heaven" was topping the charts, Jim Morrison was found dead in a Paris bathtub, and the US Supreme Court ruled that the Pentagon Papers could be published. And if you were a sound recording in the US at this time, the federal government didn't even recognize you as a work. However, this may be changing with the US Copyright's announcement last week that it will be investigating the issue of pre-1972 sound recordings.
Before launching into this story, the AmeriKat must give readers a short lesson into this area of US copyright. In 1909, the US Congress held that the US Constitution did not allow copyright to cover sound recordings because sound recordings were not "writings". Therefore, the US Government (i.e., federal government) did not legislate on sound recordings. This left individual US states to legislate this area for themselves which left a patchwork quilt of the length and strength of protection for pre-1972 sound recordings. In 1976, when copyright law was next changed, the US government then legislated for the inclusion of sound recordings, but of course this legislation was not retrospective so therefore pre-1972 recordings were governed by the old system. Obviously, the uncertainty of the protection for these recordings in terms of scope and when the works will enter the public domain is a problem increasingly encountered today.
Recently the US Congress has directed the US Copyright Office to conduct a study to investigate whether it may now be a good idea to bring pre-1972 recordings under federal jurisdiction. The areas of investigation the study is to address include the effect of public access to the recordings and the economic impact such federal jurisdiction would have on the rights-holders of these recordings. The Copyright Office has published a notice of inquiry requesting written comments from all interested parties and has requested input on the effect that such federal protection would have upon these sound recordings. The AmeriKat, in her rose-tinted view, can only think that consistency and predictability of copyright can only be a good thing - although she is sure that rights holders of pre-1972 works may vehemently disagree. Initial comments must be submitted by 20 December 2010, with reply comments due 18 January 2011. For further information on the protection of pre-1972 sound recordings see this paper prepared by the Program on Information Justice and Intellectual Property at the Washington College of Law.
ITC side with Nokia in Apple patent spat - The US International Trade Commission (ITC) staff stated last week in a pre-trial memo that Nokiashould not be found liable for infringing Apple's patents. The statement came at the start of the ITC trial on the issue. Apple had requested the ITC to block imports of Nokia phones using the Symbian operating system as they were allegedly infringing four of Apple's patents. Nokia contends that some of Apple's patent claims are invalid, and the remaining claims were not infringed. ITC staff, who act as an impartial third party in ITC cases on behalf of the US public, declared that the evidence "will not establish a violation", but that if the judge was minded to find for infringement then it followed that the Nokia phones should be blocked. Judge Charles Bullock is expected to issue his findings in February 2011. Any decision by Judge Bullock will be subject to review by the six-member commission. For more info on the Apple/Nokia battle see previousAmeriKat reports here and here. For more information see this report in Bloomberg and Ars Technica.
Walgreens sues Wegmans: In the UK, if you require a medicine or shampoo you go to Boots. In the US you go to Walgreens. Walgreens, unlike Boots, is much larger, equipped with drive-up windows to pick up and drop off prescriptions during your busy day, and has aisles devoted to non-pharmaceutical products, such as school supplies, greeting cards and junk food. It is safe to say that there is probably very few Americans who have not shopped at Walgreens at some point. Now Walgreens is suing the New York-based supermarket chain Wegmans, alleging that Wegman's logo is too similar to Walgreens'. Walgreen's filed their trade mark infringement complaint against Wegman's two weeks ago in Virginia. Walgreen alleges that its "flying W" deserves protection due to its use from 1951. Wegmans contend, however, that the "W" it started using in 2008 was a revival of a logo that it had used in the 1930s. A spokesperson for Wegman's said that there was no confusion between the two logos. According to a reportSouthern Tier of New York, people that the news channel interviewed were apparently more confused about why the lawsuit was filed than about the "W"s alleged similarity at all.
Pratt & Whitney to stop Rolls-Royce?: Pratt & Witney, manufacturers of jet engines, filed an US International Trade Commission (ITC) complaint last week to stop shipments of Rolls-Royce engines to Boeing for the production of the 787 Dreamliner (picture, right). For the past few months the two companies have been engrossed in disputes when in August Rolls-Royce filed a lawsuit alleging that the fan stages on some of Pratt's products infringed Rolls-Royce's swept fan blade. Pratt then issued a separate complaint in September alleging that Rolls-Royce had mislead the USPTO in order to be granted the patent for the fan blade. Next stop for Pratt this past week was filing a complaint for patent infringement against Rolls-Royce at the US ITC as well in the UK's High Court for infringement of their Trent 1000 and 900 engines. Trent 1000 and 900 engines are used in the Boeing 787 and Airbus's A380 respectively. All in all, not a good week for Rolls-Royce following last week's scare on a Quanta's flight to Sydney. The AmeriKat has not seen the complaint from Pratt & Whitney, but given the allegations that a design flaw is to blame for the scare alleged to have been caused by the Rolls-Royce engine on the Quanta's flight, is it a good move to now allege that that the Rolls-Royce engine infringes their engines? For more information click here.