Monday, 24 May 2010 19:56

A NEW TWIST – “HAVANA CLUB” RUM

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On April 6, 2010, the District of Delaware ruled in favor of defendant Bacardi U.S.A., Inc. in a false advertising action brought by Pernod Ricard USA LLC. This was the latest development in a lengthy dispute over the right to use “HAVANA CLUB” on rum, in the United States.
 
In finding that Bacardi U.S.A.’s rum labels were neither false nor misleading, the Court pointed to two alternative interpretations regarding the scope of “geographical origin” as used in Lanham Act Section 43(a)(1)(B). One interpretation was that “geographical origin” would implicate the place of manufacture. A broader interpretation would take “geographical origin” to encompass the source of a product’s heritage or some aspect of a product’s history. The Court indicated that it reached the same result under both alternatives, due to the prominent display of the actual place of manufacture (Puerto Rico) on the labels as well as a clear demonstration of the product’s Cuban heritage (Bacardi was originally a Cuban company, and the recipe for its Havana Club rum was derived primarily from a historically Cuban recipe).
 
At first I was reluctant to write yet another blog entry on Facebook, but after noticing that more than fifty percent of my Facebook friends are complaining about the new privacy policy in their status I decided that non-Facebook users might want to know what all the cyber chatter is about. As you will recall, it was forecasted some months ago in Wired Magazine that Facebook would eventually harness its users’ information and offer the same to search engines. Following the article, Facebook changed its default privacy setting to allow advertisers to use their users’ pictures. The change resulted in many Facebook users logging in to alter the default setting. Now there are more changes to your Facebook default settings which the New York Times cleverly placed in a chart to make sense of the privacy mess. 
 
I took a few a minutes to change my default settings but according to Facebook I am in the minority. However given the length of the new policy, I think it’s safe to predict that sooner rather than later someone will challenge Facebook’s new policy and sue them for Copyright infringement and/or Right of Publicity. And while Facebook claims that users acquiesce to the policy by using the service, as the policy gets longer and more complicated, Facebook's ability to prove consent in court gets more and more difficult.
 
Till then I am, as Facebook put it when I changed the default setting, happy to decline the many benefits of the "New Facebook Experience."

The Recording Industry Association of America (RIAA) has prevailed in its copyright infringement lawsuit against LimeWire, one of the largest remaining commercial peer-to-peer services. The Court ruled that LimeWire was liable for copyright infringement because its users commit a "substantial amount of copyright infringement" and the company behind the software "has not taken meaningful steps to mitigate infringement."

RIAA has alleged that at least 93 percent of LimeWire’s file sharing traffic was unauthorized copyrighted material. The RIAA is seeking up to $150,000 per violation, although the final damages have not yet been determined.

Earlier today, the United States Supreme Court granted a request by Costco, the wholesale retailer, to review a federal appellate decision involving the first-sale doctrine under copyright law, in connection with the purchase and resale by Costco of Omega brand watches that were purchased on the gray-market (also known as parallel imports).  In general, the first-sale doctrine allows the owner of a particular copy of a copyrighted work which was "lawfully made" to resell that copy without permission from the copyright holder. 

If you were concerned about Facebook, wait until you hear about Unvarnished. Getunvarnished.com, which just launched in beta, has been described as a website wherein Yelp meets LinkedIn. 
 
The site with the tag “truth in reputation” allows users to create profiles and rate other users in the hopes of revealing the truth about the individual. However, the social networking site has been severely criticized for having little to no security controls. Specifically, the site only verifies a user’s identity through Facebook to insure that he/she is not a minor and then proves the user with carte blanche to create profiles and rate individuals anonymously. And since the purpose of the “reviews” is to reveal who an individual “really is” the user, who is being rated, is unable to delete and/or vote on negative posts about himself/herself.
 
Supporters of the site have said that the truth will bear out and that users can have their friends post positive comments that will offset any erroneous or negative comments. The co-founder of the site even insists that it will not turn into a burn book but rather an opportunity for people to see what others really think of them. Time will tell if Unvarnished becomes a useful social networking site or the perfect platform for defamation. Either way, the sites very existence continues to expand the private/public distinction and limits the scope of personal privacy.  Not surprisingly, like Facebook, My Space, Twitter and Yelp it is one more site that may require legal monitoring.
The U.S. Patent and Trademark Office is considering a new program which will provide applicants the option to defer payment of a considerable portion of the fees due upon filing certain U.S. patent applications for up to 12-months. The program is intended to allow applicants additional time to evaluate the market potential of their invention, before incurring the full costs of pursuing a U.S. patent.
 
The fee deferral program is proposed for applicants filing non-provisional applications which claim priority to a provisional patent application, within the 12-month provisional period.  Applicants electing to take advantage of the deferred fee option would not be entitled to file a Request for Non-Publication with the non-provisional application. Under the proposal, applicants would only be required to pay the basis filing fee, currently $330 (or $165 for small entities), and would be allowed up to 12-months from filing a qualifying non-provisional patent application to pay the search and examination fees, currently $760 (or $380 for a small entity), along with a surcharge and any additional fees which may have been incurred.  Of course, until the additional fees have been paid, the application will not be placed into the queue for examination by the PTO.
 
Monday, 05 April 2010 19:50

GENE PATENTS INVALID?

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Gene patents are currently a hotly debated topic, having caught the attention of the public and the media, including the news program 60 MinutesTM. The debate essentially pivots around the interpretation of whether a gene patent improperly covers a gene as it occurs within the human (or when isolated is no different from the natural gene), as opponents contend, or whether the patent is merely protecting an isolated version of the gene as produced by the hand of man (and therefore is no different than any other chemical compound), as proponents maintain.
 
The debate has been raging in federal court in New York since last May, concerning several patents owned by Myriad Genetics that involve the BRCA1 and BRCA2 genes, which are implicated in breast cancer. Last week, the judge in that case ruled that several claims of the patents were invalid for encompassing non-statutory subject matter. Association for Molecular Pathology, et al. v. United States Patent and Trademark Office, et al. (S.D.N.Y.). Some interpret this to mean that gene patents are invalid.
 
But before leaping to that conclusion, consider: only some of the claims were found invalid, leaving many other claims valid. Also, the decision concerned particular claims of certain patents; the Court did not address the broader constitutionality aspects of the case, so this decision is narrowed in its scope. Additionally, the Defendants are appealing this judgment to the Court of Appeals for the Federal Circuit, who will review the decision and may overturn it. It seems likely, though, that since this is such a significant case, it could go all the way to the U.S. Supreme Court before the public, and patentees, have a final answer on this important question.

A Bradenton, Florida company has sued Cup Solutions, Inc., an online seller of cups used for mixing drinks with shots of hard liquor, alleging that the Defendant's "YAAGBOMB" cups, pictured below, infringe a patent owned by Hurricane Shooters, LLC, the Plaintiff.