|I Cannot Believe Mittens Has More 'Karats' on Her Collar!|
|I Have Only Eyes For You|
Passionate about IP! Since June 2003 the IPKat weblog has covered copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. The team is David Brophy, Birgit Clark, Merpel, Jeremy Phillips, Eleonora Rosati, Darren Smyth, Annsley Merelle Ward and Neil J. Wilkof. You're welcome to read, post comments and participate in our community. You can email the Kats here
|I Cannot Believe Mittens Has More 'Karats' on Her Collar!|
|I Have Only Eyes For You|
A good try, thinks Merpel, who wonders what would have happened if the City had dug its heels in and decided to persevere with the campaign. After all, it's not as if the municipality was actually selling anything, and there can be few consumers who are reluctant to carry on purchasing a branded product on the basis that they've seen it in an anti-litter campaign (or as real, live litter, come to think of it).
City spokesperson Siobhan Ramsay said the city launched the campaign earlier this month, but it was “discontinued” over trademark concerns. “Concerns were subsequently raised by various companies about the use of their trademarks and the potentially negative effect that this campaign might have on their brands, even though the affected companies have indicated their support for the City’s anti-littering initiatives,” Ramsay said .."
Love them or loathe them, mobile communication and recording devices have become an integral part of our lives. They not only accompany us through many of the most intimate and meaningful experiences in our lives but allow us to record them and share them with others. There can be occasionally heard, however, the still, small voice of someone asking us not to. One such moment is discussed here by Katfriend and occasional guest blogger Dorothea Thompson. This is what she says:
Kate Bush (right), the idiosyncratic songstress of 'Wuthering Heights' fame, played her first live show in 35 years at London's Hammersmith Apollo last Tuesday night, kicking off 22 dates at the venue, all of which sold out in minutes. But before Bush made her celebrated return, she made a request via her Fish People website: that it would “mean a great deal” if fans refrained from taking photos or filming during the shows. The reason given was that she wanted to have contact with the audience, “not with iphones, ipads or cameras”. But the request is pertinent to the persistent issue of photos and video recordings at live events, and stakeholders' attempts to control them.
Copyright may subsist in various elements of a live performance including music, lyrics, choreography, sound recordings, and visuals. Taking a photo or a video of such elements may constitute copyright infringement as a reproduction of the respective copyright works. The dissemination of that image or recording, such as sharing via social media, may itself constitute infringement as communication of the work(s) to the public by electronic transmission.
A potential exception to infringement may be private use, but this could only be relevant to capturing the photo or video, and not to its dissemination. An alternative may be criticism, review or reporting of current events or as, of 1 October, the UK's new fair dealing quotation exception. But it seems unlikely that the casual naming and dating of a clip online (accompanied by those irritating hashtags) would inadvertently constitute sufficient acknowledgment. Further, these exceptions apply only in relation to works not previously made available to the public -- possibly barring this exception for one-off, first-time, or highly secretive events.
The Hammersmith Apollo
So it seems that taking and sharing photos and videos, without permission, are likely to remain potentially infringing acts. For rights-owners, practically speaking, what can be done?
Like initial responses to control file sharing, heavy-handed user-directed action is likely to be both ineffective, and bad PR (a July white paper from the American Bar Association states that US anti-file sharing lawsuits “have been expensive, do not yield significant financial returns, and can cause a public relations problem for the plaintiff”).
Almost everyone attending an event now has at least one device on their person, and there are no means of telling those who wish to take photos or clips for private mementos from those who seek to publish them online (likely the majority). Smartphones, tablets and the like are seen as essential items, and are high-value in terms of not only financial but sentimental worth. This makes control measures such as confiscating devices on entry not only logistically difficult, but also a potential brand perception disaster: 'criminalising' your fans may not make good business.
There was the 2011 story about an Apple patent for infrared technology for iOS device cameras that could prevent copyright infringement by blocking users from taking pictures or shooting video at concerts, cinemas, etc (where infrared would be emitted into the audience), but it seems that was never implemented. With the continual blurring of interests between the hardware producers and content industries, however, perhaps technology will provide future solutions.
In the meantime, and with merely a few words, Kate Bush resolved the issue, for her at least, and only furthered her brand loyalty: the media output thus far has apparently been limited to official photographs. This suggests there is a way to handle the situation, and it isn’t via the courts (apologies, fellow lawyers!)
Technology has undoubtedly completely changed the way in which audiences consume content and interact with artists, performers, and events. Aspiring musicians, actors, writers, etc almost universally use social media and other technological tools for direct, instant access to fans and potential fans. Perhaps the price of this constant access is the expectation from audiences that in return they are able to share their experiences across social networks -- such sharing probably only increasing with advances such as the roll-out of 4G.
Conceivably, to overcome the mass urge for media-sharing (otherwise encouraged by brands and rights holders), an event must highlight the benefits to its audience of a technology-free experience. Roger Daltry of The Who recently summed it up, stating that experiencing a gig via a phone is “weird”: “Looking at life through a screen and not being in the moment totally -- if you’re doing that, you’re [only] 50% there”.
But what would happen with less adoring, respectful.. (middle-aged!) fans than those of Ms Bush? Would a polite request similarly work for a brash, anarchic punk rock gig? Or a main-stream, mass-market huge capacity festival? With Bush herself drawing a distinction, stating she had purposefully chosen an intimate theatre setting rather than a large venue or stadium, her request may in fact have been a unique solution for a wholly unique artist.
* Court in the act: how many European Courts are there? The first post of the week clarifies the misleading terminology that has been used in defining ‘European Courts’. The Court of Justice of the European Union (CJEU) is often referred to as the European Court of Justice by various organisations, including the UK IPO. As for the European Court of Human Rights (ECHR), this is not a European Union institution, but originates from the Council of Europe. Neither court should be confused with the European Free Trade Association Court (EFTA) which, far from being connected to the EU, operates only for non-EU States.
* Copyright, technology and a Katcontest! Eleonora invites the public to submit an original work illustrating the relationship between copyright and technology. The winner will receive a ticket to the 1-day conference Copyright and Technology taking place at Reed Smith LLP’s London offices on 1 October 2014. In addition, the IPKat will publish the best submissions! Entries should be emailed to firstname.lastname@example.org by Monday 8 September 11 pm GMT.
* Letter from AmeriKat: Judge Koh declares Takeda takes it too far with Mylan Dexilant declaration: The AmeriKat is back with a case review of Takeda Pharmaceutical Co., Ltd. et al v Mylan Inc. et al (here). US District Judge Koh dismissed Takeda’s application for a declaratory judgement against Mylan, as it would be ‘going overboard’. Takeda had sought an application stating that Mylan was infringing its patented acid-reflux drug Dexilant.
* In Cold Comfort Farmers Cards: Californians feel New Zealand chill, Katfriend Ken Moon (AJPark) writes about ruling of the New Zealand Court of Appeal in a software copyright and trade secrets dispute, Karum Group LLC v Fisher & Paykel Finance  NZCA 389. The dispute concerned alleged copying and misuse of confidential information. This is the first case on non-literal software copyright infringement case in New Zealand. The Court of Appeal upheld the High Court’s decision that the software copyright had not been infringed and that there had been no breach of confidence.
* Sparks fly as sharks fly, but attack on patent validity loses its bite is a post from occasional guest blogger Paul England. He comments on the decision of Judge Hacon in the Intellectual Property Enterprise Court in William Mark Corporation & Another v Gift House International Ltd  EWHC 2845 (IPEC). The claimant owned two patents, both entitled ‘Flying Shark’. The defendant, also devised toys, known as ‘Mega Flier’, and imported them for sale in the UK. The ‘Mega Flier’ was alleged to infringe the claimant’s patents while the defendant argued that those patents were invalid. The patents were held valid and infringed.
* Television Show Fan Does Not Own Facebook Likes. Marie-Andrée discusses the recent decision of the Southern District Court of Florida in Stacey Mattocks v Black Entertainment Television LLC. The case raised issues of ownership of ‘likes’ generated by a social media account. The plaintiff created a fan page for a TV show ‘The Game’ on Facebook. The page grew in popularity, and BET eventually took over its management, allowing Ms Mattocks some rights which were later withdrawn. This is the first time a court had to examine a case where a fan is claiming ownership rights over an account promoting a show. The court decided that it is the corporation which owns the IP rights over the content, not the fans. Note Rebecca’s post on a similar issue later in the week.
* "Cultivated capsicums!" Peppers resist insect, breeders resist patent comments on an article published by a national Dutch newspaper. The published item called for crowd-funding of opposition proceedings against a European patent EP2140023, granted last year to Syngenta. The patent was for insect-repellent pepper plants. However, it appears that the patent gives Syngenta ownership over all paprika (and pepper) seeds, plants and -fruits that have a natural defence against whitefly. More details on this can be found in the post and the comments.
* Patent Law in Greater China: a new title. This is a book review of Patent Law In Greater China, edited by Stefan Luginbuehl and Peter Ganea. The book was published by Edward Elgar Publishing as part of its Intellectual Property Law and Practice series, which itself is co-edited by two Katfriends, practitioner Trevor Cook and academic Jo Gibson. The book gets a positive feedback: “Chapters from practitioners, administrators, academics and the business world give this work a degree of relevance and immediacy and show how the complex and initially puzzling interplay of law and practice in China and the economies within her orbit can be depicted and understood.”
* The Blue Jay Trade Mark Battle Commences... Lucas Michels writes about a Notice of Opposition (Proceeding No. 91217791) filed by the Canadian baseball team Toronto Blue Jays against a design trade mark application of a bird head in International Class (IC) 025 for athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms. The application was filed by Creighton University (a US university) and depicts a new version of the university's sports mascot Billy Bluejay, which has been in use since October 9, 2013. The Blue Jays assert in their notice that Creighton’s new Billy Bluejay logo creates a likelihood of confusion.
All is Fair (Use) in Love (Lace). Marie-Andrée discusses the recent decision of Judge Thomas P. Griesa from the Southern District of New York (SDNY) in TPG Arrow Productions, Ltd v The Weinstein Company L.L.C. et al, 1:13-cv-05488. The plaintiff produces and distributes films, owning copyright in the 1972 movie Deep Throat, starring Linda Lovelace, and the trade mark “Linda Lovelace”. Claims of copyright and trade mark infringement against the producers of the movie Lovelace were dismissed.
* The secret life of Hello Kitty is a promising title and reveals that Hello Kitty is not a cat, but a young British girl! Her character has been registered for an array of trade marks, and the Kat notes that the lucrative appeal of brand extensions makes them an attractive area to invest in. The post divulges more details about her secret life, in particular some of unsuspected trade marks for which she is registered.
* Seriously, did you really assign your IP rights to all members of the group? Neil discusses the various clauses usually incorporated into licence or assignment agreements relating to intellectual property rights. He lists some common clauses and warns against their pitfalls.
* Lindsay Lohan and New York Right of Publicity: An Update ✌ ✌ ✌ ✌. Marie-Andrée updates us on what happened since her previous post on Lindsay Lohan. Ms Lohan sued Take-Two Interactive Software Inc. and Rockstar Games, the makers of the video game Grand Theft Auto V (GTAV). She claimed that the character “Lacey Jonas” and the portrayal of young, blonde women in two transition screens were unauthorized commercial uses of her image and thus violated her rights under New York right of publicity law. The defendants have now applied to dismiss the action and are asking for sanctions, saying that “her claim is so legally meritless that it lacks any good-faith basis and can only have been filed for publicity purposes.”
* Facebook in the fast lane: Ferrari moves up a gear. The last post of the week tells the story of a Ferrari fan, Sammy Wassem, who created a Facebook page for the brand. The page was eventually taken over by Ferrari and his administration rights were removed. He has now filed an action in Switzerland against Ferrari, claiming unpaid work and infringement of the copyright of the Facebook page. Ferrari counterclaimed for misuse of its trade marks.
|Shakespeare's three witches in Macbeth: |
life sciences, but no available patents ...
for patent owners
|Maybe I'm naive, says|
Merpel, but I still can't
see the point of a
Red Light district ...
|Ferrari Facebook page: currently over 15 million fans|
|BREAKING: Lohan Sues Twin, Claims Unauthorized Use of Likeness and Hair Brush|
|Here's a different sort|
of ice bucket challenge
Readers who are INTA members, or who can access the Trademark Reporter, and who have a soft spot for Neil's pet subject of trade mark licensing, are in for a treat!
"Hello Kitty: not a cat?" is the striking but -- to this Kat quite unsurprising -- title of an article by Hannah Marsh, published in The Telegraph earlier this week. in relevant part, the article reads (with spellings corrected):
"... D]id you know that Hello Kitty is not a cat, but a young British girl with a twin sister and an entire backstory? Christine R Yano, an anthropologist from the University of Hawaii and visiting professor at Harvard, has spent years studying the phenomenon that is Hello Kitty and her lasting appeal. Speaking to the LA Times, she explains some of the lesser-known facts about the cutesy character.Rupert Bear. This nominal ursine (right), despite his ears and facial features, is not a bear at all but a boy (also apparently British) with the face of a bear [a cursory surf of the internet has not yet revealed any source to support this contention but, like Hello Kitty, Rupert behaves in human fashion]. This Kat is fairly certain that there may be others and has a hunch that his readers may be jogging his memory ...
"Hello Kitty is not a cat," she says. "She's a cartoon character. She is a little girl. She is a friend. But she is not a cat. She's never depicted on all fours. She walks and sits like a two-legged creature. ..."
... She's actually British. She has en entire backstory that sees her living at home outside London with her parents, George and Mary White. Her full name is Kitty White. She has a twin sister called Mimmy White, a cool grandpa called Anthony and a sweet grandma called Margaret. She's a Scorpio. She loves apple pie. As well as her own pet cat, Charmmy, she has a hamster called Sugar, given to her by her friend Dear Daniel."
Class 3 cleaning, polishing, scouring and abrasive preparationsAnother of Hello Kitty's Community trade mark registrations, EU003142247 covers some even more unpromising products:
Class 5 preparations for destroying vermin; fungicides, herbicides
Class 8 side arms; razors
Class 9 fire-extinguishing apparatus
Class 11 apparatus for ... sanitary purposes
Class 18 whips
To the best of this Kat's knowledge, the Hello Kitty portfolio of IPs has not been licensed for use on any of these products, and he doubts that they will be.
Class 6 materials of metal for railway tracks
Class 10 artificial limbs, eyes and teeth; tongue scrapers.
Class 12 non-skid devices for vehicle tires.
Class 34 tobacco; smokers' articles.
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