Never Too Late: If you missed the IPKat last week!

The AI bubble, the Basmati battle, and the perils of position marks — catch up on what you missed on the blog!

Even the most intellectual felines need
their weekly IP dose. This Kat's got a lot on its
plate (and mind!)

Copyright & AI

Georgia Jenkins reported on Spotify's 'artist-first' AI music product announcement, which intended to create new revenue streams through ‘upfront agreements’ with major music groups. The post explored the focus on maximizing shareholder value via AI-powered remixes and mashups for users, while questioning the genuine commitment to fair compensation for all artists, particularly those who opted out.

Georgia Jenkins detailed how Universal Music Group (UMG) secured licensing agreements with AI startups Udio and Stability AI, settling their copyright infringement litigation. These deals, the first of their kind, set the stage for licensed generative AI music platforms, where the companies agreed to develop tools trained on authorized music and focused on mashups and voice swapping with consenting UMG artists.

Söğüt Atilla-Aydın discussed a US Seventh Circuit decision in Richardson v Kharbouch, which clarified the essential difference between musical work copyright and sound recording copyright in the context of sampling. The court implicitly suggested that more than a minimal portion of a sound recording needed to be copied for infringement to occur, upholding the distinct incentive structures for authors versus producers.

Patents

PatKat Rose Hughes dissected EPO Board of Appeal decision T 0883/23, which concerned a therapeutic combination patent. The Board found that an invention must be sufficiently disclosed at the priority date for a valid priority claim; a mere study protocol without supporting data proving the technical effect (like tolerability) was deemed insufficient, even if the eventual patent was saved on inventive step grounds.

Rose Hughes also explored decision T 2049/23, where the Board of Appeal upheld a patent for a bush-growth watermelon variety. The ruling reaffirmed the transitional provisions of G 3/19 (Pepper); since the application was filed before the 2017 cut-off date, the patent was governed by the pre-G 3/19 rule that products of essentially biological processes were still patentable.

Trademarks and Geographical Indications

Oliver Fairhurst analysed the UK Court of Appeal's decision in Thom Browne Inc & Anor v adidas AG, which upheld the invalidity of six of adidas’s three-stripe position marks. The judgment found that the marks, despite their inherent fame, were insufficiently clear, precise, and certain due to the vagueness in their written descriptions, leading to an impermissible multiplicity of signs.

Katfriend Caroline Wanjiru Muchiri examined the Kenyan Court of Appeal's "Basmati" decision, which dismissed oppositions to several trade mark applications containing BASMATI RICE. The court's controversial finding that GI protection must flow from registration as a collective mark effectively undermined the protection of unregistered rights via the common law tort of passing off in Kenya.

Jocelyn Bosse also reported on the continuing Basmati saga in New Zealand, where the High Court upheld the rejection of an Indian authority's application to register BASMATI as a certification mark. The Court ruled that the mark lacked distinctiveness because the proposed rules would unlawfully exclude Pakistani producers who used the term in good faith, highlighting the essential need for cooperation in transboundary GI claims.

IP Events and Opportunities

Annsley Merelle Ward highlighted several key upcoming events for the community. These included AIPPI UK sessions on the imminent UK Designs consultation and the UK courts' developing approach to interim licence declarations in SEP cases. She also announced the UNION-IP Christmas Dinner Meeting featuring Mark Chacksfield KC on the Emotional Perception Supreme Court case and noted that the Court of Appeal heard the appeal in the Samsung v ZTE interim FRAND licence dispute.

Image credit: Gemini AI