Friday, 21 September 2018 20:22

Internet Speech & European Copyright Law

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The European Parliament has approved some proposed amendments to EU copyright law. The proposals must now pass a final step before becoming law.  The stated intention of the amendments is to bring Europe’s copyright protection in line with how content is being created and used in the internet age. The text of the law is not yet finalized, and the vote on the finalized text will not occur until January 2019. However, speculation has only just begun as to what effect the proposed laws will have on the freedom of the internet. Of the 24 Articles proposed in the new Directive, 2 have received attention as being especially controversial: Article 11 and Article 13.

Article 11 proposes to grant the same rights to news media publishers as is currently provided to authors, performers, film producers, and broadcasting organizations. Some commentators believe this amendment will discourage some aspects of the exchange of news articles, such as “link previews” that show a snippet of the linked article to a reader. These commentators believe this will, in turn, limit access to information and boost “fake news.”

Article 13 proposes to increase copyright liability for popular websites that host user-submitted content. The current law places most of the responsibility for avoiding copyright infringement on the user who submits the content; but the proposed amendment redirects much of this liability to the hosting website. Commentators who criticize this proposed amendment include internet luminaries who argue the new law will stifle the freedom of information on the internet. These commentators believe that if the big internet companies who post user-submitted content are also required to police that content more closely, then that policing will necessarily be overbroad; and the result will be the muffling of the freedom of speech and creativity on the internet.

It is difficult to predict what effect the laws will have on the free flow of information and creativity on the internet. This unpredictability is especially true because the laws themselves are not yet finalized. So, between now and January 2019, the proposals are ripe for debate; and maybe the proposed laws are ripe for revision.

The term “swagger” is generally associated with style, confidence, sophistication, and togetherness.  In this regard, SWAGGER® Magazine (which owns a trademark in Canada for the mark “swagger”), brands itself as the premier modern men’s luxury and lifestyle publication, and is the “go to resource for the ambitious, successful and influential gentlemen of today.”  When editors at this magazine began noticing a new trend in social media searches for #swagger – apart from the typical results showing fast cars and expensive suits – they soon discovered that politics was a significant factor towards this shift.  And at the center of this movement was United States Secretary of State Mike Pompeo.

 In his first address to State department employees back in May 2018, Mr. Pompeo conveyed his desire of “getting back our swagger” in terms of the State’s affairs, policy-making decisions, and restoring diplomatic ties.  Mr. Pompeo also launched an Instagram account and throughout various posts, used “swagger” hashtags, phrases like the “department of swagger,” and photos of him “fist-bumping” State department employees.  In a recent post, Mr. Pompeo displayed four pictures – two of himself, as well as William Shakespeare and General George Patton – with the following message for his followers:  “Shakespeare was the first to use ‘swagger.’ Gen. Patton had his swagger stick. At @statedept, we’ve got some #swagger too.  It’s our confidence in America’s values.” 

 As a result of Mr. Pompeo’s attempt to penetrate pop culture by using “#swagger” when speaking in terms of diplomacy efforts advanced by the State, Swagger Magazine appears to be seizing the opportunity to expand its readership base.  In referencing some of Mr. Pompeo’s colleagues’ attire at the State department, Swagger editor-in-chief Steven Branco thought that “they all seem to have an oversize suit going on,” and that the magazine would be “working on a story that will provide more direction on what to wear in the office.”  In the meantime, Mr. Pompeo and his chief spokesperson, Heather Nauert, appear to be continuing their message of the United States Department of State being a “Department of Swagger [that] has hustle & heart,” as shown on a recent post on Twitter.

The Comphy Co. ("Plaintiff"), a California corporation selling luxury bedding products, filed a complaint against Amazon.com, Inc. ("Defendant") in the Northern District of Illinois alleging trademark infringement, contributory trademark infringement, and false designation of origin under federal law.  The complaint also alleges violation of Illinois Uniform Deceptive Trade Practices Act and Consumer Fraud under Illinois law.

The claims primarily involve (1) the Plaintiff's "COMPHY," stylized "C," "COMPHY COMPANY," and "COMPHY SHEETS" trademarks and (2) Plaintiff's insistance that it has no interest and has expressly refused to sell its products on Defendant's website, amazon.com.  According to the complaint, the Defendant is making unauthorized and infringing use of Plaintiff's trademarks by using the trademarks to promote bedding and related products not made or authorized by the Plaintiff on Defendant's website.  In particular, the Plaintiff states that the Defendant is posting results for "inferior" third-party sheets when consumers search for terms including Plaintiff's trademarks on Defendant's website.  Moreover, the Defendant pays third-party search engines to direct consumers to Defendant's website when searching for "COMPHY" brand sheets.  Such actions are said to drive sales to competing products and are likely to cause and have caused actual confusion.  

The Plaintiff asks the court for an injunction as well as a variety of monetary damages, fees, and costs.

The case can be followed at The Comphy Co., v. Amazon.com, Inc., 18-cv-04584 (N.D. Ill.).

Last month, the United States Supreme Court granted a petition for a writ of certiorari in Helsinn Healthcare S.A., Teva Pharmaceuticals USA, Inc. In 2017, the U.S. Court of Appeals for the Federal Circuit held that a publicly disclosed commercial sale amounts to an invalidating act, even when the details of the invention are not publicly disclosed.

The United States Supreme Court will decide whether under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention.

The outcome will be interesting, as sometime in 2019 the Supreme Court should provide some guidance on the scope of the on-sale bar (i.e., those acts and/or disclosures that occur prior to the filing date of a patent application, which could affect the validity of a patent). A different issue, which will not be in front of the U.S. Supreme Court for review, at least for a while, is whether a secret commercial sale amounts to an invalidating act.  

 

An original work of authorship is accorded copyright protection when the work is fixed in a tangible medium of expression (17 U.S.C. §102). However, a copyright owner cannot sue for infringement of the copyrighted work until either 1) “registration has been made” of the work to the Copyright Office, or 2) the work is refused registration by the Copyright Office and the required deposit, application, and fee have been delivered to the Copyright Office in proper form (17 U.S.C. §411).

The phrase “registration has been made” has been interpreted differently by different federal appeals courts. Some courts have ruled the phrase means that the application has been accepted and registered by the Copyright Office. Other courts have ruled the phrase means that a properly filed application for copyright has been received by the Copyright Office. These other courts find support in their interpretation from other statutes where the same phrase is understood to mean properly applying for registration. Supporters of both interpretations point to part 2) of the statute for support of their respective interpretation.

This conflict among federal appeals courts has been recognized in the highest courts, and now the Supreme Court has agreed to settle the dispute in the case, Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, et al. Does the phrase “copyright registration being made” require only a properly filed application to be received by the Copyright Office? Or does that phrase require an action to be taken by the Copyright Office—either acceptance or refusal—in response to receipt of a properly filed application? The Supreme Court will soon answer that question.

The film studio (STX) behind the raunchy comedy, “The Happytime Murders,” successfully fended off a trademark infringement suit by Sesame Workshop.  Specifically, Sesame Workshop contended that the R-rated movie depicting puppets joking about drugs, sex, and guns confused the public with “Sesame Street,” tarnished the kid-friendly show’s reputation, and exploited Sesame Street’s mark and related goodwill by implying an affiliation that did not otherwise exist.  United States District Judge Vernon Broderick disagreed, however, stating that the comedy’s slogan – “No sesame.  All street” – actually proved to distinguish the film from the children’s cartoon, and further noted that the “R” rating automatically served as a differentiating characteristic.  The Happytime Murders will begin showing in theatres in August of 2018.

Following our previous report, the U.S. Supreme Court held in WesternGeco LLC v. ION Geophysical Corp. that WesternGeco, the patent owner, can recover lost foreign profits as a result of ION's infringement under §271(f)(2) of the Patent Act. WesternGeco LLC v. Ion Geophysical Corp., U.S., No. 16-1011, 6/22/18.  Justice Thomas delivered the majority opinion in the 7-2 decision.

Over ION's objection that the lost-profits damages occurred outside of the United States and the foreign conduct after ION's infringement was necessary to give rise to the infringement, Justice Thomas wrote that awarding lost-profits damages under the circumstances was a domestic application, and therefore, consistent with the presumption against extraterritoriality that presumes federal statutes apply within the U.S.

Tuesday, 19 June 2018 20:43

USPTO Issues Patent No. 10,000,000

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The United States Patent and Trademark Office celebrates a milestone today as it issues United States Patent No. 10,000,000 to the Raytheon Company for "Coherent LADAR Using Intra-Pixel Quadrature Detection." The patent is due to be signed by President Trump and will be the first patent to bear the USPTO's new patent cover design. 

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