is a selection of intellectual property stories attracting
interest on the internet in the past week that were not covered
(see the bottom of this blog post for the top stories published
by Managing IP this week).
Actually, we are
a "cable system"
Aereo has responded to losing
its Supreme Court copyright case by attempting to embrace the
reinvent itself as a cable company.
The firm suspected service after
the Supreme Court
ruled it infringed broadcasters’ copyright by
selling subscribers a service to allow them to watch television
over the internet. The Court noted "Aereo’s
overwhelming likeness to the cable companies targeted by the
1976 amendments" to the Copyright Act and said it therefore
needed permission to air broadcasters’
But this week Aereo
argued that it should be able to qualify for a "compulsory
licence" that would allow it to pay royalties for the rights to
In a letter to US
District Court Judge Alison Nathan, Aereo’s
lawyers argue: "Under the Second Circuit’s
precedents, Aereo was a provider of technology and equipment
with respect to the near-live transmissions at issue in the
preliminary injunction appeal. After the Supreme
Court’s decision, Aereo is a cable system with
respect to those transmissions."
It continued: "If Aereo
is a 'cable system’ as that term is defined in the
Copyright Act, it is eligible for a statutory license, and its
transmissions may not be enjoined (preliminarily or
Broadcasters are not
happy with Aereo’s latest move.
quoted broadcasters as saying: "Whatever Aereo may say
about its rationale for raising it now, it is astonishing for
Aereo to contend the Supreme Court’s decision
automatically transformed Aereo into a 'cable
system’ under Section III given its prior
statements to this Court and the Supreme Court. It represented
to this Court, for example, that it could not qualify as 'a
cable system’ and, therefore, that cases
interpreting the application of Section III were 'irrelevant to
the issues here’."
Change of plan?
Recent excitement and hand
the potential appointment of Phil Johnson as USPTO director
may have had an effect. Gigaom this week reported that
the Obama Administration has backed away from naming the
Johnson & Johnson senior vice-president for intellectual
property and strategy to the role that has been vacant since
David Kappos left in January 2013.
Gigaom said its news of the
decision to backtrack "came via a person close to the
Administration, and was confirmed by several industry
The possibility of Johnson being
appointed as USPTO director had been received warmly by patent
practitioners but had outraged supporters of patent reform.
Johnson had represented Coalition for 21st Century
Patent Reform, which opposed several of the proposed changes
being discussed in Congress. The Main Street Patent Coalition
and the Consumer Electronics Association were among those
opposed to a Johnson appointment.
For his part, Johnson last week
told Managing IP that the reports were "speculation", adding:
"As far as I know, the President has not yet decided on a
nominee to be PTO Director."
Women turn the courts pink
A minor landmark
has occurred in the UK’s courts in the past few
weeks, with the first IP trial in which both lead barristers
were women (at least, so far as anyone knows). The pioneers
Charlotte May QC of 8 New Square (who took silk earlier
this year) and Emma
Himsworth QC of One Essex Court.
The case was
a trade mark dispute between shirt retailer Thomas Pink and
Victoria’s Secret, which sells clothing and
accessories branded as Pink. You
can see why a problem might arise, and indeed there has already
been litigation between the parties in
the US and
Canada. Judgment is expected after the summer.
Anyone interested in promoting
opportunities for women in IP may be interested in joining our
recently launched Women in IP Global Network. Email firstname.lastname@example.org
to find out more.
Car trouble in China
Electric car maker Tesla
has been sued in China for trade mark infringement. Zhan
Baosheng registered the rights to the Tesla name before the US
firm entered China. He is requesting Tesla shuts its showrooms,
service centres and supercharging facilities, stop all sales
activities and pay him $3.9 million in compensation, according
Review and Adjudication Board last year ruled in favour of
Tesla’s claim that Zhan’s trade mark
was invalid. Zhan applied for the trade mark in 2006 and was
granted it in 2009 for a 10-year period.
"Tesla is violating my rights every day by selling their
vehicles in China," Bloomberg quoted Zhan saying in an
interview on the day he filed the lawsuit. "I want them to say
Tesla – which made big news recently when it
it would not sue anyone who used its patents "in good
faith" – attempted to buy the trade mark from Zhan
in 2012 and again in 2013, according to the story.
TPP slowdown urged
The Electronic Frontier Foundation, the global Our Fair Deal
coalition, and a network of creators, innovators, start-ups,
educators, libraries, archives and users
have released two new open letters to negotiators of the
Trans-Pacific Partnership (TPP).
TPP, although characterised as a free trade agreement, is
actually far broader in its intended scope," explained EFF.
"Amongst many changes to which it could require the 12
negotiating countries to agree are a slate of increased rights
and privileges for copyright rights holders."
The letter writers said that with no official means of
participating in the negotiations, the global community of
users and innovators who will be affected by these proposed
changes have been limited to expressing their concerns through
open letters to their political representatives and to the
officials negotiating the agreement.
Each of the two open letters focuses on a separate element
of the heightened copyright regime that the TPP threatens to
Sixty-five signatories endorsed
an open letter protesting intermediary copyright
enforcement. EFF said countries around the Pacific Rim are
being pressured to agree to proposed text for the TPP that
would require them to adopt a facsimile of the DMCA to regulate
the take-down of material hosted online, upon the allegation of
copyright infringement by a claimed rights-holder. Industry
lobbyists are pushing for an even stricter regime, dubbed
"notice and stay down".
Thirty-five organizations have endorsed
a letter on copyright term extension. EFF said the 20-year
extension of the term of copyright protection in the US in 1998
confounded economists, and frustrated librarians, archivists
and consumers, who were consequently starved of new public
domain works until 2019. "Now the US intends to compound its
error by extending it to all of the other TPP negotiating
countries – or at least, those that haven't already
yielded to bilateral pressure to extend their copyright terms.
As the letter…explains, this would be a senseless
assault on the public domain and on those libraries, authors,
educators, users and others who depend upon it," said
Managing IP published the following stories this week,
available to subscribers and triallists:
Myanmar’s trade mark law
quivers on the horizon
strategies for fee motions after Octane
Dropbox, Google, Newegg and SAP reveal patent-licensing
TROL Act in House
seen as positive step
CJEU rules store
design can constitute a trade mark
Novak Druce adds
patent litigation partner in DC
Mira wins over
£200,000 in damages for design
open-source software – is it the end of proprietary
A guide to damages
calculations for trade mark infringement
rejects BP’s green colour mark
Gutierrez as IP head at Microsoft
South Sudan - Trade
Mark Rights and Practices
Latest trends in
Bolar exemption rules in Europe
From the blog:
The sweet smell of
success - or failure
Football World Cup