Blog Archives

Full Of Sound And Query, Signifying Something: Recent Noise Over Acoustic Trademarks

Leo the Lion has been the most regular star of MGM Pictures since it was founded on this day in 1924, and his roar is probably the sound most commonly associated with the studio.

–Kat Eschner, The Story of Hollywood’s Most Famous Lion (2017)

 

There’s no roar quite like a Nittany Lion’s!

–Penn State Football @PennStateFball on 12/7/2020

So, there you go— Metro Goldwyn Mayer and Pennsylvania State University are two different entities each associated with a distinctive roar connected to their institution.  They are marketed through different, yet related, channels of trade (sports and entertainment, which were melded together as ESPN’s original name). The MGM roar and the Nittany Lion roar are certainly not identical, but they might be considered confusingly similar, should one ever need to distinguish or compare them. (I am unaware of any reported comparison, but I did find the latter compared to a toilet flushing and have seen the former’s trademark suffer indignities at times too).  I start with MGM and Penn State, not because MGM’s registered trademark and Penn State’s common law one are at odds, but because they are two well-known acoustic, or sound (or auditory), marks that can help us understand those sounding off recently about such non-traditional trademarks.  That noise includes this one, which is “the sound made by a drinks can being opened, followed by a silence of approximately one second and a fizzing sound lasting approximately nine seconds,” according to Ardagh Metal Beverage Holdings Gmbh & Co. Kg v. European Union Intellectual Property Office, T-668/19.  The uproar also includes numerous articles by diverse scholars and various bloggers expressing a renewed interest in sound marks in many countries.

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High Court of Delhi holds that acquired distinctiveness is necessary for obtaining registration of a shape mark

In today’s age, the importance of brands (and in turn trademarks) cannot be undermined. It is through brands that businesses (be it domestic or international) are able to thrive and flourish in various highly competitive sectors. While the brand promotion, protection, and enforcement strategy has been focused for many decades on conventional marks (such as a word mark or a logo mark), businesses have realised the potential of non-conventional trademarks (including colour, shape, or even smell and scent). Amongst these, shape has the unique status of expressly finding its place in the trademark statutes of most developed nations, yet the number of trademark registrations being granted to shapes remains quite low.

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Just Humor Them: Jests, Jokes, Satire, and Parody In Infringement and Defamation Cases

Legend has it that shortly after Adam was created, he complained: ‘O, Lord! you have given the lion fierce teeth and claws, and the elephant formidable tusks; you have given the deer swiftness of legs, and the turtle a protective shell; you have given the birds of flight wings, but you have left me altogether defenseless.’  And the Lord said unto Adam:  ‘I shall give you an invisible weapon that will serve you and your children better than any weapons of fight or flight, a power that will save you even from yourself.  I shall give you the sense of humor.'”

[G. Swaminath, “Jokes a Part:  In Defense of Humor,” 48 Indian J Psychiatry 177–180 (2006)]

I thought of that story, and the unique power humor has, literally and legally, to disarm many who might otherwise complain over any number of legal issues and perceived slights. For even though, as one writer noted, some “legal textbook[s like] Gatley on Libel and Slander [are ones where] neither ‘joke’ nor ‘humour’ makes the index” because “[w]ords are defamatory, or they are not” and “intention is irrelevant,” humor remains at the forefront of any codex of responses available to claim of infringement or defamation.  While intent may be irrelevant, meaning, understanding, impact, and setting are not.  We were reminded of this just recently in the case of Roy Moore v. Sasha Baron Cohen, where the United States Court of Appeals for the Second Circuit affirmed dismissal of a defamation action arising out of a mock comedic interview. Mo[ø]re on that case later (pun perhaps intended).

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Copyright Infringement before the Copyright Claims Board?

Suppose you have not registered your copyright in a book with the U.S. Copyright Office until someone has infringed your copyright by copying substantial portions of your book. Let’s also suppose you can prove that the alleged infringer has infringed your work and you can prove that the infringement caused you lost sales, lost opportunities to license, or diminution in the value of the copyright in the amount of $20,000. Can you sue the alleged infringer for actual damages for the copyright infringement without going to federal court? The answer to this question is YES!

The U.S. Congress has established the Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE Act) to provide an alternative forum to federal court before the Copyright Office called the Copyright Claims Board (CCB) for resolving certain copyright disputes that involve up to $30,000 (called “small claims”). The use of the CCB is voluntary and both parties must agree to participate. The CCB provides advantages over federal court because certain copyright disputes may be resolved before a panel of copyright experts as opposed to a jury or a federal judge. The CCB proceeding is a streamlined proceeding and a less-expensive alternative compared to federal court.

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High Court of Delhi extends statutory deadline for filing response to FER in European Union’s patent applications

Patents files folder

In the recent case of The European Union vs. Union of India and Ors., W.P.(C)-IPD 5/2022 and W.P.(C)-IPD 6/2022, the Petitioner (European Union) filed two writ petitions against two orders passed by the Controller General of Patents for deemed abandonment of its patent applications.

By way of background, the Petitioner had initially engaged a European law firm (M/s. Freylinge) which in turn engaged one Mr. Guruswamy Nataraj (“first patent agent”) for filing and prosecuting the patent applications (on their behalf). The first patent agent filed Indian Patent Application No. 11123/DELNP/2012 (on December 21, 2012) and Indian Patent Application No. 3466/DELNP/2013 (on April 18, 2013).

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Viral Greek Advertisement with LGBTQ+ Representation Ruled Legal by the Advertising Self-Regulation Council

A few months ago, a large shampoo Company advertisement was published in Greek media (both on TV and οn social media), in which members of the Greek LGBTQ+ community starred. Through the campaign, the Company praises diversity and the exceeding of stereotypes and within a few hours, it became a “viral topic of discussion” on social media and news websites, causing a wave of positive as well as negative reactions. In fact, the ad has over 800,000 views on YouTube.

Five queer people (a cis gay man, a cis gay woman, a trans woman, a non-binary person, and a drag queen) are starring in the commercial, sharing their stories and the change in their daily lives when they finally felt free to express themselves as they are – with the help of their hair, too – focusing on the problems, discrimination, and oppression they have faced from their social environment due to their identity. The advertising video closes by referring to a Psychological Support Line for LGBTQ+ people and their families, which is also sponsoring the campaign. It is noteworthy that some of the scenes shown in the commercial are quite rare for Greek TV (such as a kiss between a lesbian couple), which is one of the reasons that the ad gained a lot of attention. In general, LGBTQ+ representation in Greek media and advertisements is not that common.

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A PORTRAIT OF AN ARTIST AS A YOUNG…CODE(R)?: Why Understanding Artificial Intelligence & Real Creativity Shouldn’t Make The Artist A Dunsel

Art, said Stephen, is the human disposition of sensible or intelligible matter for an esthetic end.”

James Joyce, A PORTRAIT OF THE ARTIST AS A YOUNG MAN, Chapter V

 

[T]he application…identified the author of the Work as the ‘Creativity Machine,’ and noted it was ‘Created autonomously by machine.’

Complaint, paragraph 17 in Thaler v. Perlmutter, Civ. Action No. 22-01564

 

Wesley [on viewscreen]: Our compliments to the M-5 unit, and regards to Captain Dunsel. Wesley out.

McCoy: Dunsel? Who the blazes is Captain Dunsel? …What does it mean, Jim? (Kirk leaves the bridge) Spock? What does it mean?

Spock: “Dunsel,” Doctor, is a term used by midshipmen at Starfleet Academy. It refers to a part which serves no useful purpose”

The Ultimate Computer, STAR TREK, THE ORIGINAL SERIES

In my recent attempt at spring cleaning, I mentioned that “the Copyright Office’s ‘refusal to register a two-dimensional artwork claim in the work titled ‘A Recent Entrance to Paradise’ (‘Work’).” I also observed that “[e]ven with Roombas and Creativity Machines doing their jobs well, these issues remain a little messy and will need to be considered further.” I just thought I would have a little longer respite.

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Why Creators Need to Pay Close Attention to the SCOTUS Andy Warhol Infringement Case

The US Supreme Court in March decided it will revisit a dispute over pop artist Andy Warhol’s images of Prince. In taking up the case, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Court aims to more clearly define the scope of what’s known as “fair use” in US copyright law.

The suit was originally levied by photographer Lynn Goldsmith after a 2016 Vanity Fair issue brought to light a series of images that Warhol produced of Prince based on a photograph taken by Goldsmith. The photographer, who had only been aware of one of the 16 images in the series, argued that Warhol had committed copyright infringement. In 2019, a judge ruled in favor of Warhol; however, New York’s Second Circuit Court of Appeals in 2020 reversed the decision, ruling that Andy Warhol’s licensing company did not engage in fair use when it used Goldsmith’s photograph as the basis for the series.

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Can a Copyright Registration be Invalidated based on Mistakes in the Copyright Application?

Suppose that you want to register your copyright by preparing and filing a copyright application with the U.S. Copyright Office. What if you were unaware that you made some mistakes in the copyright application and the copyright application issued into a copyright registration? You subsequently find that someone is infringing your copyright registration and you file a lawsuit against them for copyright infringement. During the lawsuit, the accused infringer finds the mistakes in the copyright application and argues that the copyright registration is invalid. Is your copyright registration invalid? The answer is NO if the mistakes were made without knowledge!

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Greek collecting societies are not entitled to collect equitable remuneration for artists and producers not represented by them by contract or mandate

Introduction

GEA is the Common Collecting Society of GRAMMO (Collecting Society of Music Producers), ERATO (collecting Society of Performers), and APOLLON (Collecting Society of Musicians). It was formed following a state license, in order to collect, among other things, the equitable remuneration provided by article 49 of Law 2121/93 in favour of producers, performers, and musicians for the public performance of legitimately released sound carriers.

Since its establishment, GEA has claimed to be entitled to collect the above equitable remuneration not only for its members (ie, rights holders represented by it) but also on behalf of producers, performers, and musicians who are not represented by it on the basis of a contract or relevant mandate.

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