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IP Watchdog
Bob Zeidman
August 15, 2022

The U.S. Supreme Court (SCOTUS) is set to hear Andy Warhol v. Lynn Goldsmith in October. It will be the latest in a series of cases the Court has taken on over the last decade-plus that promise to change U.S. innovation as we know it. The case will be heard on the heels of other controversial SCOTUS decisions that have drastically changed the legal landscape, with rulings that transfer power from the federal government to the individual states (Dobbs v. Jackson Women’s Health Organization) or that reduce federal oversight altogether (West Virginia v. EPA). It has also put limits on specific executive powers and plans to rule soon on affirmative action. Not getting as much attention, but arguably equally important, are some recent and not-so-recent decisions that have changed the landscape of the rights of authors and inventors, and the upcoming Warhol case, which may effectively remove them altogether. Unfortunately, many people, including politicians and academics, don’t understand—or refuse to recognize the importance of—intellectual property rights for the advancement of civilization.

The content in this post was found at https://www.ipwatchdog.com/2022/08/15/supreme-court-set-hear-copyright-case-big-implications-u-s-tech-innovation/id=150902/ Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

The content in this post was found at https://arstechnica.com/science/2022/08/us-government-to-make-all-research-it-funds-open-access-on-publication/ Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

IP Watchdog
Amy Hsiao
August 26, 2022

As the concept of a unified “metaverse” is gaining traction, savvy brand owners are shifting their focus to securing rights in this emerging sector. In pursuit of intellectual property (IP) rights, individuals and corporations are turning to metaverse trademark filings to provide protection for goods and services in the virtual world. As of the summer of 2022, the China National Intellectual Property Administration (CNIPA) has received more than 16,000 applications that either contain the word “METAVERSE” (in English or its Chinese translation: “YUAN YUZHOU,” or both) or that include descriptions of goods and services in the virtual world, or both. These applications were filed by individuals as well as companies (big and small, both foreign and domestic). The rejection rate for traditional trademark applications in China is typically high, around 60-70%, at least in the first instance. However, the rejection rate for these new metaverse applications is even higher, hovering around 80%.

[ed: I know the article is about China, but the issue raises the same question here:

The content in this post was found at https://www.ipwatchdog.com/2022/08/26/metaverse-trademark-filings-china-protecting-brands-law-catches/id=151075/ Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

Tech Dirt
Timothy Geigner
Aug 16th 2022

. . .

Which brings us to the present, where Harpo Inc. is suing a podcast put out by history professors as a journalistic product covering the history of Oprah and her show.

Harpo Inc., which owns her trademarks, carefully vets any licensing opportunity. Now it’s taking a podcasting duo to court over what it says is an unauthorized attempt to capitalize on “The Oprah Effect.” Harpo Inc. is suing Kellie Carter Jackson and Leah Wright Rigueur over their Oprahdemics podcast.

Roulette Productions launched Oprahdemics in March and ended its first season with a live show at the Tribeca Film Festival in June. Its key art, which is embedded below, includes a dictionary-style definition of the term — defined as “the study of the Queen of Talk” — as well as a large O and the outstretched arms of a woman. The defendants also operate oprahdemics.com and multiple social media sites.According to Harpo Inc., this branding misleads the public into thinking that Oprah is somehow involved in all of this. Please note that that’s the sole claim here. To Harpo’s credit, the company isn’t asking for monetary damages or profits from the podcast. It doesn’t want the podcast shut down or the subject matter to change.

“However, Harpo submits that the Court should enjoin Defendants from wrongfully creating a new brand incorporating Harpo’s trademarks and making trademark use which is dilutive of and constitutes misuse of Harpo’s OPRAH and O family of trademarks and explicitly misleads consumers as to the source and/or sponsorship of Defendants’ branded offerings.”

. . .
The content in this post was found at https://www.techdirt.com/2022/08/16/oprah-sues-podcast-about-oprah-for-branding-that-includes-oprah-trademarks/ Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

IP Watchdog
Wen Xie
August 17, 2022

The Copyright Claims Board (CCB), established by the CASE Act passed in December 2020, is now up and running and taking cases. The CCB is an alternative to federal court. Just like patents, copyrights are bound by federal law. Previously, a copyright owner would have to take their case to federal district court to in order to seek damages or relief. But the CCB allows a claimant to bring a copyright suit before a tribunal at the Copyright Office instead.

The content in this post was found at https://www.ipwatchdog.com/2022/08/17/copyright-claims-board-venue-pursuing-actual-statutory-damages-impacting-registered-unregistered-works/id=150947/

Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

LexBlog/99 Park Row
Jessica R. Corpuz
August 18, 2022

Many people associate brands with particular colors – if you think of Tiffany & Co., you think of its famous robins-egg blue boxes and branding; if you think of Barbie, you can see the bright pink that came with so many childhood toys. Not many people realize, however, that brands can trademark those colors and prevent others from using them. . . .

However, not everyone can trademark a color. There are two key hurdles to obtaining a color trademark. First, the color has to distinguish the business’s goods and identify that business as the source of the goods. If the color is commonly used by all business in the space, the trademark may be rejected. For example, Cheerios was denied a trademark largely on the grounds that many kinds of breakfast cereal use the same or similar color yellow. The court found that it had not acquired enough “distinctiveness” in the eyes of consumers.

Second, the color cannot serve a functional purpose. For example, Pepto-Bismol was denied a trademark on the color pink because of the color’s “therapeutic value” in treating upset stomachs. The court reasoned that Pepto-Bismol’s competitors might want to use that color in order to compete effectively in the market.

New brands should be wary of using colors that are already trademarked or heavily identified with a particular brand.  . . .

[ed’s note: think John Deere Green and Cat Yellow]

The content in this post was found at https://www.lexblog.com/2022/08/18/corporations-can-own-colors-and-they-can-sue-you-for-using-their-color/ Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

Eileen McDermott
IP Watchdog
August 23, 2022

The U.S. Court of Appeals for the Ninth Circuit yesterday affirmed the ruling of Judge James C. Mahan of the District of Nevada dismissing a trademark infringement case filed by K&K Promotions, which owns the IP rights to famed American daredevil Evel Knievel. The Ninth Circuit agreed with Judge Mahan that the character of Duke Caboom from Walt Disney Studios and Pixar’s Toy Story 4 was not a literal depiction of Knievel, but rather a transformative use.

The content in this post was found at https://www.ipwatchdog.com/2022/08/23/ninth-circuit-says-disneys-duke-caboom-not-infringe-evel-knievel/id=151021/ Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

One of the primary arguments for enacting the Defend Trade Secrets Act (DTSA) in 2016 was the perceived need for the protection of the trade secrets of U.S. companies abroad.  These issues received significant media attention with the focus far and away on China; by way of example, 60 Minutes cited the Justice Department as saying “the scale of China’s corporate espionage is so vast it constitutes a national security emergency, with China targeting virtually every sector of the U.S. economy, and costing American companies hundreds of billions of dollars in losses — and more than two million jobs.”  A consensus emerged that existing civil trade secret remedies at the state court level were inadequate.  These concerns led to calls for a robust federal statute that would provide a civil remedy empowering federal courts to assert their jurisdiction over parties outside the United States.  An important decision issued by the U.S. District Court for the Northern District of Illinois last year, Motorola Solutions v. Hytera Communications Corp.,  2020 U.S. Dist. LEXIS 35942 (N.D. Ill. Jan. 31, 2020), paved the way for other federal courts over the past year to exercise jurisdiction over international actors and international conduct under the DTSA.  This blog post summarizes these recent decisions.

. . .

Takeaway:  As these cases over the past 18 months illustrate, federal courts are willing to apply the DTSA to foreign parties who have taken actions that further acts of misappropriation.  These decisions are an important first step in furthering the DTSA’s goal of protecting U.S. companies’ trade secrets that are misappropriated abroad.

More

The content in this post was found at https://www.lexblog.com/2021/09/27/trade-secrets-without-borders-the-defend-trade-secret-acts-promise-as-an-extra-territorial-statute-finally-comes-to-pass/ Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

LexBlog/99 Park Row
James Aquilina
September 27, 2021

In a recent decision, the Review Board of the United States Copyright Office (“Board”) reversed an examiner’s prior refusal to register a copyright in the artistic elements present in the bed shown above, paving the way for the applicant to obtain a copyright registration in this work.

Copyright law does not protect useful articles per se (i.e., articles having a useful function that does not serve merely to portray the appearance of the article or to convey information), but does protect any artistic feature that is applied to or incorporated in a useful article, if the feature: “(1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.”  Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct 1002, 1007 (2017).

more

The content in this post was found at https://www.lexblog.com/2021/09/27/design-protection-dont-sleep-on-copyrights/ Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

LexBlog/99 Park Row
Jim Soong
September 1 2021

Note: First published in The Intellectual Property Strategist and Law.com.

This article is Part Two of a Three-Part Article Series

Artificial intelligence is changing industry and society, and metrics at the US Patent and Trademark Office (USPTO) reflect its impact. In a recent publication, the USPTO indicated that from 2002 to 2018 the share of all patent applications relating to artificial intelligence grew from 9% to approximately 16%. See “Inventing AI, Tracing the diffusion of artificial intelligence with U.S. patents,” Office of the Chief Economist, IP Data Highlights (October 2020). For the foreseeable future, patent applications involving artificial intelligence technologies, including machine learning, will increase with the continued proliferation of such technologies. However, subject matter eligibility can be a significant challenge in securing patents on artificial intelligence and machine learning.

This three-part article series explores USPTO handling of Alice issues involving artificial intelligence and machine learning through a sampling of recent Patent Trial and Appeal Board (PTAB) decisions. See Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014). Some decisions dutifully applied USPTO guidelines on subject matter eligibility, including Example 39 thereof, to resolve appeal issues brought to the PTAB. In one case, the PTAB sua sponte offered eligibility guidance even with no Alice appeal issue before it. These decisions inform strategies to optimize patent drafting and prosecution for artificial intelligence and machine learning related inventions.

Part One can be viewed here.

Part Two

“No More Than Conceptual Advice To Use Machine Learning”

more

The content in this post was found at https://www.lexblog.com/2021/09/01/artificial-intelligence-subject-matter-eligibility-u-s-patent-office-appeals-part-two Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com