Thursday, 01 September 2016 00:16

Supreme Court Set to Hear Apple v. Samsung

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The latest chapter in the Apple v. Samsung saga, previously blogged about here, is set to play out during oral arguments in front of the United States Supreme Court this fall. Samsung was found to infringe several of Apple's design patents related to specific design features of a smartphone, and not necessarily an entire phone. 35 U.S.C. § 289 authorizes courts to award the total profit from the article of manufacture bearing the design. Thus, the original damage award was based on Samsung's profits from the sales of the smartphone. The Supreme Court, however, will hear the question of whether, where a design patent is applied to only a component of a product, an award of infringer’s profits should be limited to those profits attributable to the component.

It is axiomatic that descriptive trademarks cannot be registered without a sufficient showing of acquired distinctivess. However, it has long been possible to register a stylized form of a descriptive trademark, if that stylization imparts a separate commercial impression apart from the descriptive word. For example, descriptive marks merely presented in a common or recognizable typeface will likely be rejected. However, the TTAB recently allowed a registration for the word "jiujiteiro" presented in a cursive, handwritten style of typeface. The TTAB found that the handwritten style of typeface imparted sufficient distinctiveness to create a separate commercial impression, apart from the word itsef. Of course, such findings will continue to be handled on a case-by-case basis, but this decision serves to clarify the threshold for the amount of stylization required for a finding of distinctiveness. 

ASCAP (American Society of Composers, Authors, and Publishers) and BMI (Broadcast Music Incorporated) suffered a blow, when the U.S. Department of Justice ("DOJ") decided not to accept proposed changes to music licensing antitrust agreements which have been in place since 1941. These licensing agreements bind these two music performance rights organizations and shape the landscape of music licensing.

ASCAP and BMI contends that the 75-year old rules in place, disadvantage songwriters and composers in the era of digital music and on-line streaming. Instead, the DOJ asserts that the in place "full-work" licensing, licenses that give radio, television stations, bars, restaurants and online music services the right to play music for which ASCAP or BMI hold the rights to, are the proper mechanism. The DOJ opined that the requested modifications would "disrupt the status quo." Under the current types of licenses, if a song has multiple writers, any of them could grant ASCAP or BMI the right to fully license the song. The DOJ believes the current full-work licensing and fractional payments practice is the most beneficial to both the writers and those who want to play their music.

ASCAP and BMI have opposed the recent DOJ interpretations of the licensing rules, saying it could limit the freedom of authors to decide how they wish to be paid for their work and through which organization. BMI has stated that it plans to file a lawsuit in Federal Court against the DOJ, while ASCAP announced it will work on new legislation in Congress.

The U.S. Olympics Committee has reportedly threatened legal action over the use of its trademarks as hasthags, such as #Rio2016 or #TeamUSA, by corporations that are not sponsors of the Olympics. Ostensibly, such action helps to clear the way for paid sponsors to be highlighted when searching social media posts by hashtag. Some folks, however, might feel that this has a chilling effect on free spech. A Minnesota cleaning company has filed a declaratory action in the U.S. District Court for the District of Minnesota seeking to have its right to use such hashtags clarified. The company also requested a speedy hearing on the matter, given that the games are scheduled to end in little more than two weeks. 

The USPTO recently introduced its initiative to "fast track" patent applications which cover immunotherapies for cancer. The program is designed to support the White House's National Cancer Moonshot, which aims to eliminate cancer with a $1 Billion call to arms to find new therapies and techniques for prevention. Eligible applications will be prioritized for examination, and, once accepted into the program, applicants can expect to receive a final decision in one year or less. 

If you have not registered your trademark in Canada, now is the time. Our northern neighbor will soon implement a massive overhaul to its Trade-marks Act, pursuant to 2014 legislation that has been on hold pending the adoption of corresponding regulations. Among other things, use of a trademark in Canada (or anywhere in the world, for that matter) will no longer be a prerequisite to ownership and enforcement of a Canadian trademark registration. The race to the Canadian Intellectual Property Office (CIPO) will be open to competitors, squatters, and trolls whose intent may be to re-sell trademark rights at a profit, interfere with a legitimate trademark owner’s ability to use a trademark in Canada, and possibly even demand a ransom at the border for importation of genuine goods. Filing a Canadian trademark application now, even if only defensively for future market expansion, should be given serious and immediate consideration.

 

In a historic vote, the people of Great Britain have chosen to leave the European Union in what has been dubbed “Brexit.”  Many clients have registered their trademarks through the Community Trade Mark (“CTM”) system, now known as the European Union Trade Mark (“EUTM”), with the expectation that protection extends to the United Kingdom.  Similarly, many clients have protected their inventions and novel designs via the European Patent Office (“EPO”) with rights extending to the UK.  Rest assured that there is no emergency; there will be no immediate impact on intellectual property protection for at least 2 years as new trade arrangements are negotiated. While it is predicted that the British Parliament will pass legislation to ensure the continuity of CTM/EUTM trademark rights in an independent UK trademark system, clients might consider filing a national-level UK trademark application as a precaution. Patent rights in the UK should be entirely unaffected by Brexit, however, since the EPO is not an European Union institution and operates independently.

The legendary English rock band Led Zeppelin won a high-profile copyright infringement case on Thursday, after a California federal jury rejected claims that the opening to their famed megahit "Stairway to Heaven" was stolen from a song by the band Spirit.

The jury found that there was a reasonable chance that Jimmy Page or Robert Plant of Led Zeppelin had heard the song "Taurus" by Spirit, before they wrote "Stairway to Heaven" and could have copied it, but decided that the two songs were not "extrinsically similar." The jury was instructed that while the two songs might share similarities like chord progression, common musical elements such as chord progressions are ineligible for copyright protection.

Attorneys for the Plaintiff contended that evidence showed that the similarities between the two songs went beyond simple chord progression, and that Randy Wolfe of Spirit, deserved writing credit on the megahit and some of the millions of dollars the song had earned in the previous years.

The jury disagreed, finding that the original parts of "Taurus" were not similar to "Stairway to Heaven" and awarded the Plaintiff no amount of damages. Attorneys for the Plaintiff indicated that an appeal may be forthcoming.

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