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In the perpetual Apple v. Samsung (and Samsung v. Apple) battles for patent dominance, the Federal Circuit's most recent decision invalidated two of Apple's asserted patents, notwithstanding a jury verdict finding the opposite.  The two claims were directed to Apple's mobile device patents, including automated spell corection, slide-to-unlock (found in the lower court to have been infringed by Samsung devices, and resulting in $119 million in damages).  The claimed features were invalidated on appeal to the Federal Circuit based on 35 U.S.C. 103, in that each of the "slide-to-unlock" and "spell correction" claims were obvious in view of the prior art.  In support of the patents, Apple presented evidence of copying, industry praise, long-felt but unsolved need, and commercial success all being secondary considerations of nonobvious.  The Federal Circuit reviewed Apple's presented evidence, and collectively found the secondary evidence to be too weak to overcome the evidence of obviousness based on the prior art, and reversed the lower court's jury verdict.

As a follow-up to a previous blog entry, it’s finally official -- reform legislation in the European Community (“EU”) will take effect on March 23, 2016 and bring major changes to the CTM (“Community Trade Mark”) registration system.  Over the past 20 years, the CTM has become a staple of international trademark portfolios as a cost-effective way to achieve protection in 28 member countries in a single package.  Among the most notable changes, the CTM name will be changed to the “European Union Trade Mark,” or “EUTM.”  Also, the registrar’s office in Alicante, Spain, now known as OHIM (“Office of Harmonization in the International Market”), will be re-named as the “European Union Intellectual Property Office,” or “EUIPO.”  In addition to minor, technical changes, the overhaul will increase filing fees for multiple-class applications, replacing the existing structure of up-to 3 classes for the initial filing fee.  Of note, any application filed before March 23rd will still benefit from the 3-for-1 filing fee, so clients are encouraged to consider immediate filing to reduce costs.  Other changes to the law will impose stricter rules for specific listings of goods and services, which will affect existing registrations and upcoming renewals, and there also will be enhanced enforcement provisions available to registrants, especially against counterfeit and gray market goods.  The Firm continues to assist clients with trademark registration and enforcement in virtually every country of the world.

Does someone other than LeBron James own the rights to the tattoos on LeBron James' body?

The videogame maker, Take-Two Software, has been sued by a company that has demanded more than $1.1 million in licensing fees for eight tattoo designs featured on the bodies of NBA All-Stars LeBron James and Kobe Bryant, as well as Kenyon Martin, DeAndre Jordan and Eric Bledsoe.
The lawsuit was filed on Monday in New York federal court by Solid Oak Sketches, which claims to own copyrights to several tattoo designs featured prominently in the video game. The lawsuit alleges that Take-Two Interactive Software and other companies associated with the realistic videogame NBA 2K16 committed unauthorized reproductions of those tattoo designs.

The interesting legal question over whether tattoo designs are copyrightable has never been fully decided by a court, as acknowledged in the new lawsuit. A prior lawsuit related to the "Mike Tyson face tattoo" against Warner Bros. over the Hangover 2 settled, as have other disputes including one by a tattoo artist, Christopher Escobedo, who tattooed a UFC fighter and later asked a bankruptcy court to determine the value of his tattoo claim against videogame publisher THQ.

In a demand letter to Take-Two Software before the lawsuit was filed, Solid Oak Sketches offered a perpetual license to the eight tattoos in question, for a fee of $1,144,000.

Apparently, Take-Two Software declined the licensing fee offer. Take-Two declined to comment about the lawsuit, which demands injunctive relief and monetary damages. We will monitor this case for further developments.

In a recent decision in Lumen View v. FindTheBest.Com, the Federal Circuit held that Section 285 of U.S. patent laws does not support the deterrence based award of fees or sanctions, instead the Federal Circuit suggested that sanctions under Rule 11 of the FRCP to be the more appropriate vehicle.  The Federal Circuit in this case did affirm the lower court's "exceptional case" finding under 35 U.S.C. 285 as well as the award of "reasonable attorney fees", but has vacated the doubling of the award to "deter baseless litigation" as unjustifiable.

The Supreme Court has granted writ of certiorari in a pending Inter Partes Review (IPR) challenge in Cuozzo Speed Tech v. Lee.  The questions on review relate to whether the court of appeals erred in holding that in IPR proceedings, the PTAB may construe claims in an issued patent according to their broadest reasonable interpretation, rather than their plain and ordinary meaning, as well as on whether the PTAB's decision to institute an IPR proceeding is itself unreviewable.

Paramount Pictures Corp., and CBS Studios have filed a copyright infringement lawsuit in federal court in California against a company preparing to begin production on a planned independent Star Trek crowdfunded fan film.

The lawsuit, claims that the fan film incorporates “innumerable” copyrighted elements of Star Trek. Axanar Productions, the production company behind the fan-film, stated that “Axanar, will be the first non-CBS/Paramount produced Star Trek to look and feel like a true Star Trek movie.”

Axanar Productions claimed to have raised over $1 million through a crowd sourcing campaign, and was set to start shooting the film in February 2016. Some of that money was used to create a mini-concept film and to construct a sound stage. We will see what impact this copyright infringement lawsuit has on the production of the independent film financed by Star Trek fans.

The Federal Circuit has ruled that Section 2(a) of the Lanham Act, which allows the U.S. Patent and Trademark Office to deny or cancel a trademark if it disparages persons, institutions, beliefs, or national symbols, violates the First Amendment. The ruling vacated the U.S. Patent and Trademark Office’s refusal to grant a trademark registration to an Asian-American band seeking to register the mark “The Slants” on the grounds that the mark is offensive to Asian-Americans. 

Days before trial and over two years of federal court litigation, a confidential settlement has been reached that would allow the lyrics to the “Happy Birthday” song, one of the world’s most popular songs, to enter the public domain.

The origins of “Happy Birthday” date back to 1893 with the publication of “Good Morning to All,” written by Mildred Hill and her sister Patty, a kindergarten teacher in Kentucky, which had the same tune but different lyrics.Years later, the lyrics to “Happy Birthday” were adapted to the song’s melody. The “Happy Birthday” song was then published in a number of sing-along collections and music books. In 1935, the publisher of one of those books filed for a copyright for the lyrics and music. In 1988, the copyright was transferred to Warner Music.

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