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Wearable-tech turns luxury as designer brands collaborate with tech firms

In August’s issue of Jewellery Focus, Mark Marfé, a senior lawyer in our IPMT practice in London, was interviewed on the rise of wearable technology. The wearable market has seen an increase in “luxury” products as well as an expansion from wrist pieces to voice recorder necklaces, fitness tracker brooches and even rings that monitor your sunlight exposure.

The article looks into the growth in collaborations between designer brands and technology firms; tech firms can capitalise on being linked to big name brands who in turn, can side step the several years of research and development required to bring a new product to market. Mark explains that, in the future, jewellery and fashion companies may also look to acquire a smaller tech company to have access to the technology in-house.

The article can be found here on pages 50-53.

European Commission paper on Brexit and IP

The European Commission has released a position paper on “Intellectual property rights (including geographical indications)” giving us the first indication of how the Commission will approach the Brexit negotiations with the UK regarding Intellectual Property Rights (“IPR“).

The Commission has set up a Taskforce on Article 50 negotiations with the United Kingdom to prepare the Brexit talks. This task force is currently drawing up a number of position papers to be submitted to the 27 remaining Member States. Those papers are intended to develop opinion amongst the 27 remaining Member States as well as ultimately set out the EU’s position versus the UK. The paper is only five pages long, setting out some general principles which the Commission views as key to the future of IPR in the UK and EU27 post-Brexit.

The paper suggests that the Commission favours continuity of existing protection whereby IPRs are automatically ‘divided’ to grant separate protection as UK rights, with the same benefits as their ‘parent’ EU right, with minimum cost to IP owners. CITMA has commented:

This European Commission paper in many respects mirrors CITMA’s position paper and is a positive step towards ensuring current EU registered trade mark and design rights continue to cover and be enforceable in the UK post-Brexit, with minimum cost to IP owners.

The paper covers all IPR with “unitary character within the Union” (“Unitary IPR“) including:

  • European trade marks;
  • Registered community designs;
  • Unregistered community designs; and
  • Protected geographical indications/protected designations of origin/plant varieties;

The paper also touches on database rights and supplementary protection certificates.

The general principles set out in the paper are as follows:

Unitary IPR

The holder of any Unitary IPR before Brexit should, after Brexit, automatically be the holder of a new corresponding UK right – if need be, on the basis of specific domestic legislation to be introduced in the UK

This would address maintaining the renewal dates, priority dates, seniority principles, genuine use and reputation requirements.

It would require adaptation of the ‘genuine use’ requirements so that use in the EU prior to the withdrawal date is recognised as ‘genuine use’ for the purposes of the new corresponding UK registration. It would also require adaptation of the ‘reputation’ requirement so that where the EUTM from which the UK registration is derived, pre-Brexit, had a reputation within the EU this reputation would be recognised “temporarily” in the UK, even where the corresponding UK registration does not yet have a UK-specific reputation.

The Commission makes clear that the implementation of this automatic division should not result in financial costs for the holder of Unitary IPR and administrative burdens should be kept to a minimum.

Applications for Unitary IPRs submitted before, and still on-going, as at the withdrawal date should be allowed to keep any priority date when applying for a UK right after withdrawal. The Commission does not make clear whether they intend this to be automatic or at the option of the applicant.

Exhaustion

The Commission proposes that all IPRs exhausted in the EU pre-Brexit (as determined under Union law) should remain exhausted in both the EU27 and the UK post-Brexit, irrespective of any changes made in the exhaustion regime in either the UK or EU27 post-Brexit.

Geographical Indications (GI) and Protected Designations of Origin (PDO) Continue Reading

Monkey See, Monkey Do… Monkey Own? The Curious Case of Naruto v. Slater

When wildlife photographer David Slater set up his camera in the rainforests of Indonesia, he hardly expected to ignite a copyright battle with a monkey. Nonetheless, the legal dispute between Slater and Naruto, a crested macaque represented by his “next friends,” People for the Ethical Treatment of Animals (“PETA”) has captured the attention of the news media.

Techdirt & Wikimedia Commons free a monkey

In 2011, Slater, frustrated by his inability to effectively photograph the elusive macaques, conducted an experiment. He set up his camera in such a way that his wide-angle lens might attract the attention of curious monkeys. He placed a remote trigger next to his camera, hoping that the macaques would hit it, and thus take their own “selfies.” This allowed Slater to get clean, close-up shots of the animals. The experiment was a success – Naruto, a six-year old male, took the bait and snapped several shots. Various newspapers and blogs picked up the photographs in the early summer of 2011. However, in July 2011, the blog Techdirt posted a piece arguing that the Monkey Selfies were in the public domain because neither Naruto nor Slater could hold their copyrights. Naruto, not being a legal person, was incapable of holding a copyright in his “selfies” and Slater, having not taken the photos, could not be classified as the author. Soon after, the Monkey Selfies appeared in Wikimedia Commons, which listed them as part of the public domain. Slater wrote to Wikimedia, asserting his copyright and asking that it either pay for the photographs or remove them. His request was denied in August 2014. Nonetheless, Blurb Publishing (“Blurb”) published his book, Wildlife Personalities, in December 2014.  A grinning Naruto graced the cover.

“Next friend” PETA claims monkeys can stand

In September 2015, PETA sued Slater and Blurb on behalf of Naruto in U.S. federal court in California, claiming that they violated Naruto’s copyrights in the so-called “Monkey Selfies.” As the creature to whom the photographs owed their origin, PETA argued, Naruto was the “author” of the Monkey Selfies under the Copyright Act of 1976. While the Copyright Act protects “original works of authorship”, 17 U.S.C. § 102(a), it does not define “authorship” or “author” 17 U.S.C. § 101.

Slater rebutted Naruto’s case primarily by arguing that Naruto did not have standing under the Copyright Act, because animals cannot be authors. In its January 28, 2016 ruling, the District Court agreed with Slater for three reasons. First, if Congress intended to give animals standing under the Copyright Act, surely it would have said so. Second, while “author” may be undefined in the statute, many other case decisions have interpreted the term to mean a “human” or a “person.” None have extended the term to animals. Finally, the U.S. Copyright Office Compendium (the “Compendium”), which provides guidance on issues of copyright law, explicitly states that a work of “authorship” must be created by a human being in order to be copyrightable.

PETA appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit on March 20, 2016. After oral argument in July 2017, the parties began to discuss a settlement and the court granted their motion to stay the appeal proceedings during those talks. The parties reached a settlement on September 8, 2017, with Slater agreeing to give 25 percent of his gross earnings to charities dedicated to protecting the crested macaque and its habitat. In return, PETA dropped its appeal. As part of their joint motion to dismiss the appeal and vacate the judgment, the parties have asked for vacatur, which would nullify the record in the lower court. The Competitive Enterprise Institute, a libertarian think tank, filed an amicus brief on September 13, 2017, urging the court to deny vacatur. The brief argues, amongst other things, that since Naruto is not a party to the settlement, PETA does not have standing to move for vacatur.  The Ninth Circuit has not yet ruled on whether it will grant the motion, although the settlement itself can still stand even if vacatur is denied.

Monkeys v. people in copyright law Continue Reading

Asia webinar: Creatively combatting counterfeiting and piracy with robust strategies

From cosmetics to electronics, the quickening pace of counterfeit products continues to be a real threat to many businesses.  Companies need more effective ways to protect their brand against fraud both online and offline.  In this webinar, our speakers from China, Hong Kong, Japan and Vietnam will discuss key anti-counterfeiting strategies covering various jurisdictions.  Join us for the third instalment of our Asia IP Webinar series to learn about how you can stop losing revenues to infringers in Asia.

Topics covered during this webinar will include:

We hope you will be able to join us. Please contact Rianna Chugani or BoYun Jung for registration


Date: Tuesday, 17 October 2017

Time

4:30-6:00 pm HKT

5:30-7:00 pm TOK

9:30-11:00 am BST


Asia IP Webinar Series Continue Reading

US: Our ITC lawyers speaking at 2017 MIP Trade Secrets Forum

We are proud to be sponsoring and speaking at this year’s MIP Trade Secrets Forum in Palo Alto, California. The September 26, 2017 event brings together leading legal and corporate experts to discuss the newly enacted Defend Trade Secrets Act (DTSA) and emerging litigation options.

Three of our International Trade Commission (ITC) lawyers will participate in a panel titled “International Trade Commission & the DTSA.” Partner Chris Mammen will moderate the session and will be joined by the former US ITC Judge Theodore Essex and Partner Steve Levitan. Nathan Walker, Senior Director of Litigation at Sony Interactive Entertainment will also speak at the panel, which sets out to explore trade secret litigation at the ITC.

Please click here to view the full agenda and register for the 2017 MIP Trade Secrets Forum.


Date: Tuesday, September 26, 2017

Location: Sheraton Palo Alto

Presenting Sponsor: Hogan Lovells

Opening the door for product placement in Hong Kong?

On 4 September 2017, the Communications Authority of Hong Kong (“CA“) announced that it will review the relevant provisions in the codes of practice governing indirect advertising and product/service sponsorship (commonly known as “product placement”) in television programmes.

Currently, the rules for television advertising are contained in the Generic Code of Practice on Television Advertising Standards (January 2013) and the Generic Code of Practice on Television Programme Standards (May 2014) (together the “Codes“). The Codes are issued by the CA pursuant to section 3 of the Broadcasting Ordinance (Cap. 562) and the CA has the power to impose sanctions on licensees who do not comply with the Codes. Product placement in television programmes must comply with the Codes. The Codes provide, among other things, that the exposure or use of the product must be clearly justified editorially, not obtrusive to viewing pleasure and not gratuitous. Other requirements include that the sponsor for the product or service must be clearly identified in the front and/or end sponsor credits of the programme. Continue Reading

HL joins MIP in Hong Kong “International Women´s Leadership Forum” on regional & global IP developments

We are delighted to co-sponsor this event on 21 September, with our lawyers Monique Woo and  Serena Lim attending. Serena will be chairing the session on anti-counterfeiting.

This event is a great opportunity for women in IP to deepen knowledge of regional & global IP developments and senior thought leadership. Topics include:

  • Licensing
  • Anti-counterfeiting technology
  • Emerging technology and related IP challenges
  • Advertising in relation to trademarks

Managing Intellectual Property has developed this event to “welcome newly-admitted and experienced lawyers from junior associates through to partners in private practice. It also targets legal counsel, senior legal counsel and general counsel on the in-house side” and aims to provide “an inclusive debate around building the talent pipeline as well as discussing the latest developments in IP”.

For more information, please visit the MIP page here

“The Connected World”: Intellectual Value Event – London

Please join us on 17 October when we will be hosting our annual Intellectual Value seminar – this year focusing on ‘The Connected World’ and a variety of topics from across the Internet of Things.

From factories to offices, vehicles to homes, smart technologies are transforming every aspect of our society – and they’re here to stay. Businesses need to position themselves to take advantage of the opportunities that increased connectivity creates, and particularly those concerning the underlying data it generates. Knowing how to do so, what the limits are, and where opportunities lie is the key to success.

Topics and themes:

  • Complying with the GDPR in a connected world
  • Wearable technology – securing the right kind of IP protection
  • What is the Digital Single Market and what does it mean for your business?
  • 10 steps to cybersecurity – protecting yourself in a connected world
  • Drones – is the sky the limit? A look at what restricts or encourages commercial use

We look forward to seeing you there. To register your interest in our event please contact Tom Goddard


Date: 17 October 2017

Venue: Hogan Lovells, Atlantic House, Holborn Viaduct, London, EC1A 2FG Map

Time: 09:00 Registration, 09:30 Seminar, 12:00 Lunch


 

Life Sciences: Spotlight interview on false advertising claims in Europe

Life sciences businesses dedicate huge resources to advertising material in a fiercely competitive market. Partner Tanja Eisenblätter discusses false advertising in this sector and why it is important for clients looking to launch new products.

Preliminary injunctions in Germany

Tanja presents a typical business case in which a client’s global advertising and its competitors’ advertising are assessed for misleading or unlawful content. In this scenario, a warning letter may be followed by a preliminary injunction request before a court to prohibit the objectionable advertising content.

No one regulatory authority oversees marketing materials in Germany so the market is self-regulated, meaning that competitors regulate each other and act before the state courts. Many are surprised that injunctions can be obtained in false advertising matters and by how quickly they can be obtained. Tanja highlights the availability and value of this enforcement channel in the “jungle” of European jurisdictions.

Launching in Europe from the U.S.

Tanja comments that U.S. life sciences clients are well advised to establish legal advice in Europe pre-launch. Advice should be based on a combination of sound jurisdictional awareness and industry knowledge so that flaws and strengths can be identified to avoid disruption of product launch through false advertising claims.

Watch the video

U.S. – NJIPLA CLE event: Blockchain Technology: The Legal Landscape And How It Will Change Everything

Please join us at the upcoming NJIPLA CLE event: Blockchain Technology: The Legal Landscape And How It Will Change Everything, taking place on September 18th from 2pm to 6pm at the APA Hotel Woodbridge in Iselin, New Jersey.

This event will feature a comprehensive tutorial on blockchain technology as well as two panels of impressive experts explaining blockchain use cases and the associated legal issues that will face in-house and outside counsel.  The first panel will address the current and potential utility of blockchain technologies in a wide range of industries such as life sciences, finance, and real estate.  The second panel will focus on critical legal issues relating to blockchain technology, including intellectual property, government regulations, privacy, and smart contracts.


 Agenda:

2:00 – 2:10 Introduction

Josephine Paltin (President, NJIPLA), Commvault Systems, Inc.

2:10 – 2:15 Opening Remarks

Aleksandra King (Moderator), Hogan Lovells US LLP

2:15 – 3:15 Presentation: “What is Blockchain Technology?”

Ira Schaefer, Hogan Lovells US LLP

Aleksandra King, Hogan Lovells US LLP

3:15 – 4:15 Panel 1: Potential and Current Uses of Blockchain Technology featuring:

Chuck Thompson, Blockchain Consulting

Chitra Ragavan, Gem

Mary Kopczynski, 8of9 Consulting

 4:15 – 5:00  Networking Break with refreshments

5:00 – 6 :00  Panel 2: Legal Issues Relating to Blockchain Technology featuring:

Adrienne Valencia Garcia, IBM

Ted Mlynar, Hogan Lovells US LLP

Lee Schneider, Debevoise & Plimpton

Jason Rozovsky, R3


For registration and additional information please see the NJIPLA’s event page https://www.njipla.org/event-2609729

We look forward to seeing you there.


For more information on this subject, please visit our Blockchain Linked Ledgers topic center and read our earlier related posts