From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 7 January 2016

Thursday Thingies

Will the CAFC take a bite out of Apple's award?
Samsung seeks to overturn $120 million Apple verdict:  Yesterday, Samsung was been trying to convince the Court of Appeals for the Federal Circuit (CAFC) to overturn a May 2014 verdict from a California federal court ordering it to cough up $119.6 million for infringing three patents.  Kathleen Sullivan (Quinn Emanuel) argued that Samsung's technology did not detect and link to data in the phone's applications in a way which fell within the claims of the main patent at issue which covers Apple's "quick links".  Claim interpretation was also heavily debated before the court.  For more information see these articles in Reuters, the Recorder and Apple Insider.

What's to smile about if you can't
own copyright?
No monkeying around with copyright ownership:  Yesterday, US District Judge William Orrick ruled that the monkey who stole British photographer David Slater's camera and took a selfie cannot own the copyright in the pictures.  PETA intervened on the monkey's behalf and sought damages for copyright infringement.  During a brief hearing the judge, dismissing the suit, stated:
"I'm not the person to weigh into this. This is an issue for Congress and the president. If they think animals should have the right of copyright they're free, I think, under the Constitution, to do that."
Does the Anne Frank decision
put the "uhOH" into OHIM?
Distinctive disquiet about Anne trade mark:  Yesterday El-meow-nora published a guest post from IP enthusiast Nedim Malovic (Stockholm University) bringing to readers' attention the controversial decision of OHIM's Fourth Board of Appeal which allowed the registration of the word mark "Le journal d'Anne Frank".   If you are interested in reading more about this story, the AmeriKat strongly recommends last month's post on the MARQUES Class 46 blog written by Mary Knowles - click here.  In her conclusion, she writes:
"Regardless of the incongruity of allowing a trade mark registration to confer perpetual copyright, there is nothing distinctive about a well-known book title, a point well understood by the OHIM examiner who took the first instance decision. A book title is not a trade mark. If one follows the logic of this decision, anyone could register The Pilgrim's Progress or Oliver Twist as trade marks for books and films.  
It is difficult to imagine this decision will stand the test of time and scrutiny, since it clashes head on with common sense, common knowledge and OHIM´s own guidelines. The Board´s decision is calamitously muddled, and one which is more difficult to read than it must have been to write."
This might as well be Trump's campaign slogan....
Trump  battles trade mark law:  What to say about Trump that hasn't already been said, not least by President Obama at the White House Correspondents' Dinner a few years ago (click here).   But for a Republican candidate that has taken aim at many, trade mark law may next. The Donald is currently in a fight with a Nevada-based Internet marketing firm who are seeking to use the phrase Trump Your Competition.  But this isn't his first time dealing with brand issues.  Bloomberg reports that Trump has been embroiled in dozens of trade mark cases since 1985, but this time its different in that "[t]he  ongoing case appears to be his first attempt to protect his ownership in the verb form."


Aaron Wood said...

I'm afraid both OLIVER TWIST and PILGRIMS PROGRESS are poor examples, being works which have long been out of copyright and have been reproduced by a large number of publishers such that the name no longer serves to identify origin.

For a work which is in copyright no such situation exists - in theory there has been but a single source for the work.

There is inherently no issue in protecting a book title as a trade mark - you may recall that some time ago Danjaq (maker of Bond films) had a CTM for DR NO. It was subsequently cancelled on the basis of non-use, having not been the trade mark used on goods. It is my belief that inherently there is nothing wrong with a book title being a trade mark, subject to there being the right to cancel the registration for non-use if it has not been used as a trade mark.

In the DIARY OF ANNE FRANK case, however, there is another issue, which is whether the application is being used to circumvent the entry of the work into free use at the end of the copyright period. I believe this is the case here, and it introduces a very different attack on the registration, namely that of bad faith. The misuse of the trade mark system in such circumstances seems to be an action made in bad faith, and I believe this is the true vulnerability of the registration... not distinctiveness or inability to serve as a trade mark.

THE US anon said...

"There is inherently no issue in protecting a book title as a trade mark"

Actually, the opposite is true - there is an inherent issue.

Trademarks are inherently perpetual (granted certain conditions are met).
Copyrights are explicitly NOT perpetual (albeit, the "limited times" is obscenely long, and for most people does amount to be akin to be perpetual).

Since (in theory), a copyright right is meant to be something that necessarily WILL lapse and place the item into the public domain - with only the passage of time, the possibility of a dual right that defeats the Quid Pro Quo bargain "inherently" is a critical issue.

Anonymous said...

I think the point was that, in principle, a book title can also serve the essential function of a trade mark and I believe that to be true. The modern consumer is well aware that authors such as J K Rowling 'control' and 'exploit' their titles in a far wider context than simply publishing books.

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