ILN IP Insider

Entitled To Copyright Erasure?: A Fair Use Search For A Derived Yet Transformational Work

The title is the first thing the reader sees or hears …—and getting it right is the single most important … decision you’ll make. The title forms the basis of the reader’s judgment ….” Tucker Max

For those of you who may read my past ILN posts, you will not be surprised that I subscribe to the Tucker Max approach:  Make the title attention-grabbing, memorable and searchable, informative, easy and not embarrassing to say, and short.  OK, maybe not the last prong so much, but I nonetheless have one regular reader who has noted that he thinks that I have “a real knack for catchy titles!” I will not debate the merits of that opinion right now.

Read full article

Infringers Beware – The U.S. is Emphasizing Copyright Enforcement

The United States received two major copyright updates in the middle of the pandemic.  Copyright owners should breathe a sigh of relief.  On December 27, 2020, as part of the major COVID-19 Relief bill, the Copyright Alternative in Small-Claims Enforcement Act of 2020 (the “CASE Act”) and the Protecting Lawful Streaming Act of 2020 (the PLSA”) were signed into law.

The Problem:

Streaming is the thing—whether with music, television, movies, audiobooks, or videogames.  Like with streaming, however, their illegal infringement is also everywhere and accounts for a nearly $30 billion loss to the U.S. economy per year.[i]  The constant, pervasive nature of copyright infringement has historically made enforcement difficult.  The CASE Act and PLSA provide copyright holders relief.   

Read full article

Can U.S. Trademark Registrations Be Cancelled for Non-Use?

Suppose that you want to register a trademark that identifies a source of goods or services for your business.  What if you file a federal trademark application and the U.S. Patent and Trademark Office refuses registration of the trademark based on a likelihood of confusion with another trademark registration?  Can you cancel the cited trademark registration with the U.S. Patent and Trademark Office because of non-use in commerce?  The answer is “YES!” if the trademark has been abandoned for non-use or never been used in commerce or before a particular relevant date.

Under U.S. trademark laws, a petition for cancellation of a trademark registration may be filed at any time by any person who believes that he is or will be damaged. For trademark registrations within five years, the grounds for cancellation of a trademark registration include that the trademark has been abandoned due to nonuse with intent not to resume use and nonuse for three consecutive years.  For trademark registrations older than five years, a petition for cancellation of trademark registration is enumerated in Trademark Act § 14, 15 U.S.C. §1064, which provides for cancellation of a trademark registration that has been abandoned for non-use.  In either situation, this means that the trademark has been used in commerce, but subsequently was abandoned for non-use.

Read full article

Don’t Smile at the Camera – New Biometric Data Laws

Biometric data is seen as a preferred means of identification by many businesses. Unlocking a smartphone using facial recognition and other biometric identifiers, for example, gives users the feeling as if they are more protected (e.g., less risk of identity theft). However, similar to the boom in privacy developments and legislation related to the collection and use of more traditional personal information, the growth of biometric data use by businesses, law enforcement, employers and other organizations has given rise to renewed privacy concerns and legal developments.

While there is no uniform federal biometric data privacy law, several states either have existing laws or are in the process of drafting or ratifying new laws. Although it remains to be seen how such legislation will change the industry’s use of and reliance upon biometric data, that it is increasingly the subject of analysis and discussion indicates a demand and a need for reasonable security and privacy practices around the collection and processing of biometric data, whether required by law or not.

Read full article

Protecting Confidential Information in Canada: Is there a Better Way?

The British Columbia decision Equustek Solutions Inc. v Jack[1] highlights the difficult, time consuming, and expensive exercise that organizations may find themselves in when an employee misuses confidential information. In today’s environment, information can be downloaded, transferred or shared instantly. How can organizations best protect their intellectual property assets and confidential information to maintain their competitive advantage?

Read full article

AUSTRALIAN PATENT LAW UPDATE – THE HIGH COURT HAS OVERTURNED OVER 100 YEARS OF LAW, FAVOURING THE US DOCTRINE OF EXHAUSTION

Late last year, the High Court of Australia overturned more than 100 years of precedent when it handed down its decision in Calidad Pty Ltd v Seiko Epson Corporation [2020] HCA 41 (Calidad v Seiko). Rather than following the existing principle of ‘implied licence’, in its decision, the High Court adopted a US common law patent doctrine, which provides that a patentee’s monopoly rights over its inventions are ‘exhausted’ after sale (the exhaustion doctrine).

Read full article

BANKSY’S “FLOWER THROWER” TRADEMARK: A CRITICAL APPRAISAL OF THE RECENT DECISION OF EUIPO CANCELLATION DIVISION

The Cancellation Division of EUIPO has recently issued a resounding decision declaring the invalidity of the figurative trademark representing the “Flower thrower”, one of the most iconic Banksy’s mural paintings.

The motivations on which the decision is based are questionable since it seems to be willing to take a punitive stance against the British street artist due to his commonly known distaste for intellectual property rights.

Read full article

Cash rebate and tax relief for production of audiovisual works

Introduction

In recent years there has been a remarkable effort to make Greece an attractive destination for the production of audiovisual works (eg, films, TV series and video games). The most important initiatives in this respect are:

  • the cash rebate state aid scheme, which covers 40% of eligible production costs; and
  • the tax relief incentive, which covers 30% of eligible production costs.

An audiovisual work may qualify for both the cash rebate scheme and the tax relief,(1) provided that this complies with the EU Block Exemption Regulation (651/2014).

This article provides a brief outline of the above incentives.

Read full article

The King Is Dead! Long Live The King!: Elvis Sightings, Taking Care of Business, And Rights Of Post-Mortem Publicity

Never let me go…
I’ll be yours through all the years,
till the end of time.

[Love Me Tender, performed by Elvis Presley]

Elvis sightings have had a long, storied life of their own since the King of Rock-and-Roll’s “death” was reported (or perhaps exaggerated (though neither greatly nor grossly)), in 1977.  Indeed, since 1977, it has been claimed that Mr. Presley had an uncredited appearance in the movie Home Alone in 1990, that Elvis sweetly inspired healing miracles before 1977, and that since 1977 his miracles have included pedestrian healings as well as more impressive feats such resurrection and reincarnation.  Were those sorts of things, or more mundane media mentions, not themselves sufficient post-mortem publicity to keep the King in our thoughts, a New Jersey federal district court, in Estate of Elvis Presley v. Russen, 513 F. Supp. 1339, 1344 and 1355 (D.N.J. 1981), said that “On August 16, 1977, Elvis Presley died,” purportedly, “but his legend and worldwide popularity have survived…” and “Elvis Presley’s right of publicity survived his death and became part of Presley’s estate.”  TCB in a flash, or, for the uninitiated, just a way of taking care of the business of personal musical empire.

Read full article

Protection of Photographic Works

With the development of science and technology, cameras or mobile phones are now having various built-in shooting modes or parameters to facilitate photographers to quickly shoot assorted scenes or atmospheres, which is quite different from the traditional way that photographers need to adjust various parameters by themselves. Regarding whether the photographic works taken using the built-in shooting modes or parameters of the camera or mobile phone meets the requirements of the Copyright Act for “creativeness (originality)”, the Intellectual Property Court adopted positive opinions both in the Min-Zhu-Shang-Zi No. 2 Judgment rendered on October 22, 2020, and the Min-Zhu-Shang-Yi-Zi No. 15 Judgment on October 29, 2020.

Read full article