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Special 301 report, Grooveshark, MPAA, Louis Vuitton, Eclipse IP – the week in IP



Michael Loney


The USTR issuing its Special 301 report, Grooveshark shutting down operations, the MPAA demanding torrent sites end copyright infringement, Louis Vuitton losing its bid to save its checkerboard trademark, and Eclipse IP’s patent applications were in the IP headlines this week

USTR issues Special 301 report

The United States Trade Representative (USTR) has released its annual review of the state of intellectual property around the world in its Special 301 Report.

It listed 37 countries on its priority watch list or its watch list:

Priority Watch List: Algeria, Argentina, Chile, China, Ecuador, India, Indonesia, Kuwait, Pakistan, Russia, Thailand, Ukraine, and Venezuela.

Watch List: Barbados, Belarus, Bolivia, Brazil, Bulgaria, Canada, Colombia, Costa Rica, Dominican Republic, Egypt, Greece, Guatemala, Jamaica, Lebanon, Mexico, Paraguay, Peru, Romania, Tajikistan, Trinidad and Tobago, Turkey, Turkmenistan, Uzbekistan, and Vietnam.

USTR noted the willingness of Turkmenistan and Tajikistan to work with the United States on improving their intellectual property rights protection and enforcement regimes. It will conduct out-of cycle reviews (OCRs) of each country to evaluate the steps taken to merit removal from the watch list.

USTR will also conduct an OCR of Honduras to determine whether to place it on the watch list.

It has also extended the OCR of Paraguay to provide time for the conclusion of a bilateral IPR Memorandum of Understanding.

In addition, Spain is not listed in the 2015 report but USTR is continuing the OTR of the country began in 2013.

The US Chamber of Commerce’s Global Intellectual Property Center President and CEO David Hirschmann said the report outlines how the Trans-Pacific Partnership offers a unique opportunity for many of the countries included in the report to build a foundation to help move their economies from being net-consumers of intellectual property to net-exporters.

"USTR's continued attention to persistent IP challenges in India and China is also welcome," he said. "With an enhanced commitment to IP, China and India would enjoy earlier access to innovative products from the US, and encourage the creativity of nearly three billion citizens whose innovative potential remains largely untapped. The Special 301 Report and the GIPC Index have also both identified specific areas including patentability requirements, use of compulsory licensing, forced technology transfer and localization, and copyright protection, among others, where reforms to strengthen IP would deliver immediate benefits for the US, Indian and Chinese economies."


Get out of the groove

Grooveshark has shut down. The music streaming service agreed a deal with record companies that sued it for hosting pirated music.

Warner Bros, Sony and Universal Music sued the service in 2011. Grooveshark said it had not managed to get licences for the copyrighted music shared on the site. As part of a settlement agreement, it will cease operations immediately, wipe all of the record companies’ copyrighted works and hand over ownership of the website, its mobile apps and IP including patents and copyrights.

Grooveshark said in a statement on its website: "We started out nearly 10 years ago with the goal of helping fans share and discover music. But despite best of intentions, we made very serious mistakes. We failed to secure licences from rights holders for the vast amount of music on the service.

"That was wrong. We apologise. Without reservation."

Grooveshark had faced potential damages of up to $736 million in its litigation with the record companies.

The Recording Industry Association of America said the deal was an important victory for artists and the entire music industry. "For too long, Grooveshark built its business without properly compensating the artists, songwriters and everyone else who makes great music possible. This settlement ends a major source of infringing activity," said the association.


Hollywood gets tough

The Motion Picture Association of America has ordered piracy websites to shut down immediately or face litigation. The association represents the six largest movie studios.

Piracy news website TorrentFreak revealed thatthe Association’s European branch has sent letters warning torrent sites to remove infringing material within 24 hours.

"This Notice requires you to immediately (within 24 hours) take effective measures to end and prevent further copyright infringement," TorrentFreak quoted notice from the MPAA to the websites as saying. "All opportunities provided by the Website to download, stream or otherwise obtain access to the Entertainment Content should be disabled permanently."

However, TorrentFreak noted that the threats have not made much impact. Only one small link site has shut down after receiving the email.


Louis Vuitton’s checkered trademark history

The European Union Court has declared that Louis Vuitton’s Damier checkerboard pattern was "invalidly registered due to a lack of distinctive character", according to The Hollywood Reporter.

Louis Vuitton obtained a trademark for its brown checkerboard pattern in 1998 and registered the black and white version in 2008. German retailor Nanu-Nana filed to have it repealed in 2009. This request was granted in 2011, with both of the trademarks being overturned. Louis Vuitton appealed this decision.

On April 21, the European Union Court upheld OHIM’s appeal board decision. The First Board of Appeal had said the checkerboard pattern " was a basic and banal feature composed of very simple elements and that it was well-known that that feature had been commonly used with a decorative purpose in relation to various goods".


Eclipse IP wins Stupid Patent of the Month

The Electronic Frontier Foundation has awarded Eclipse IP its award for Stupid Patent of the Month, and said the NPE "casts a shadow over innovation".

US Patent No. 9,013,334has the title: Notification systems and methods that permit change of quantity for delivery and/or pickup of goods and/or services. It issued on April 21 2015. The patent claims a method of updating delivery information.

Eclipse IP owns a patent family of more than 20 patents, and has filed more than 100 lawsuits. EFF said these patents claim various closely related notification systems. "Eclipse interprets its patents very broadly and has asserted them against a wide range of mundane business practices," said EFF Daniel Nazer in a blog post.

For example, in January it sent a letterclaiming that Tiger Fitness infringes one of these patents by sending emails to customers updating them about the status of orders, and demanding a $45,000 payment.

"We think that all of Eclipse’s patents deserve a stupid patent of the month award. But the ’334 patent is especially deserving," said Nazer. "This is because the Patent Office issued this patent after a federal court invalidated similar claims from other patents in the same family. On September 4 2014, Judge Wu of the Central District of California issued an orderinvalidating claims from three of Eclipse’s patents. The court explained that these patents claim abstract ideas like checking to see if a task has been completed. Judge Wu applied the Supreme Court’s recent decision in Alice v CLS Bank and held the claims invalid under Section 101 of the Patent Act."

And in the past week the USPTO issued another patent to Eclipse IP. Patent No. 9,019,130is almost identical to the ’334 patent, except it deals with updating "time" information instead of "quantity" information.


Also on the blog this week:

Download the new Managing IP app!

Should the EU courts have an IP tribunal?

Google’s patent purchase experiment leaves unanswered questions

Managing IP at the INTA Annual Meeting


In our news and analysis this week:

INTA and WIPO to collaborate on dispute resolution

Looking to the future of the profession

Europe’s new IP enforcement tools

USPTO patent commissioner Focarino to retire in July

PATENT Act introduced in US Senate with bipartisan support

Locke Lord adds partner in DC

Wisconsin jury orders Millennium Health to pay $8.6m for infringing on Ameritox-licensed patent

How courts view surveys in trade mark cases

Tension over EU General Court reform

Study of PTAB final decisions suggests death squad perception undeserved

Federal Circuit applies Nautilus reasonable certainty rule

Euromoney LMG Europe Women in Business Law Awards 2015 – shortlist announced

Supreme Court rules on TTAB preclusion

Federal Circuit vacates Slants ruling

Sponsored roundtable discussion: Arab trade marks

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