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Trade mark litigation, Apple, Samsung, monkey selfie, Richard Prince, Anne Frank, hoverboards – the week in IP



Michael Loney


A drop in US trade mark litigation in 2015, a Federal Circuit hearing of an Apple and Samsung dispute, a judge ruling a monkey does not own copyright in a selfie, artist Richard Prince being sued, the copyright of Anne Frank’s diary, and the latest patent news from the hoverboard market were in the IP headlines this week

Also on the blog this week:

The final 2015 US patent litigation and PTAB filing figures

What Managing IP has in store in 2016


US trade mark litigation falls to 10-year low

A total of 3,449 trade mark litigation cases were filed in the US in 2015, according to an analysis by legal analytics company Lex Machina released this week. This was fewer than any of the previous 10 years, and 11.6% lower than the median for that period.

The fourth quarter was particularly weak, with only 822 trade mark cases filed. This was lower than any other quarter in the past five years.

Lex Machina also reported that copyright litigation fell in the fourth quarter of 2015, with both filesharing cases and other copyright cases decreasing.

trademark litigation

Federal Circuit holds Apple hearing  

The FOSS Patents blog had a thorough write-up of the Federal Circuit’s hearing on the cross-appeal of the second California Apple v Samsung case, and it did not view Apple favourably.

In the blog post, Florian Mueller said that even Judge Reyna – "a glowing admirer of Apple’s impact on the smartphone market," according to Mueller – appeared to conclude that some of Apple’s patents have big shortcomings.

"This blog, which used to be rather sympathetic to Apple's patent enforcement efforts because the 'rip-off’ story appeared credible for some time, has been highlighting the weaknesses of such patents as the '647 'quick links’ patent or the slide-to-unlock patent family for a couple of years," wrote Mueller. "Even though things that judges say at a hearing are not the same as an actual decision, the mere fact that the Federal Circuit has expressed massive doubts about those patents already validates my scepticism."

The blog said that Apple's lead counsel, William Lee, conceded at the hearing that the Federal Circuit's claim construction was narrower than the one Judge Koh's court applied.

In its write-up of the hearing, Reuters reported that Apple’s "quick links" patents accounts for more than $98 million of the damages award. It said Samsung's attorney Kathleen Sullivan argued Samsung did not use the same technology as Apple to detect and link to specific data in its phones' browser and messenger applications.

"Two of the three judges at the hearing seemed to question Apple's arguments over the interpretation of the patent, which Sullivan said the appeals court had already rejected in a separate case. But Lee cautioned against accepting Samsung's theory, which was rejected by the jury," reported Reuters.


More monkey selfie  

In unsurprising but notable news, a federal judge in San Francisco this week ruled that a macaque monkey that took a selfie does not own the copyright in the photo, reports The New York Times.

People for the Ethical Treatment of Animals (Peta) had sued photographer David Slater, whose unattended camera was grabbed by the macaque monkey who took a few snaps, claiming the monkey owned the copyright.

Judge William Orrick wrote: "While Congress and the president can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act."

Slater told the BBC: "They [Peta] are more about money and publicity than animals. They have wasted people’s donations on pursuing this case."


Artist sued for copyright infringement

New York-based artist Richard Prince has been sued for copyright infringement by a photographer who accuses Prince of reproducing his work without seeking permission, reports The Guardian.

Prince held an exhibition in 2014 featuring 37 prints on canvas of what he called "screen saves" of Instagram posts including one of Graham’s photo Rastafarian Smoking a Joint. Graham filed a complaint on December 30 against Prince and the gallery’s owner.

The copyright issues in the exhibition had previously drawn attention when Doe Deere, a member of the SuicideGirls burlesque collective, pointed out a reproduction of one of her photos had sold for $90,000. The only modification Prince made to the photos was to blow them up and add comments below the images.

According to the complaint, Prince said in 2011: "Copyright has never interested me. For most of my life I owned half a stereo, so there was no point in suing me, but that’s changed now and it’s interesting … So, sometimes it’s better not to be successful and well-known and you can get away with much more. I knew what I was stealing 30 years ago but it didn’t matter because no one cared, no one was paying any attention."


Mein Kampf enters public domain

At the end of last year Mein Kampf entered the public domain in Germany, reports NPR. Since 1945 the German state of Bavaria had held the copyright on Adolf Hitler’s autobiographical work, and prevented reprints of the book. The copyright on that has now expired, however, with annotated copies of the book returning to German booksellers’ shelves.

The copyright in the US, which expires in 2020, has been held by Houghton Mifflin since 1979. It donates all royalties and profits to organisations that promote diversity and cross-cultural understanding.

This past week attention has also been drawn to the copyright of The Diary of a Young Girl, written by Anne Frank. The 70-year copyright on that was also set to expire in France on January 1, given Frank’s death in 1945, with various parties planning to publish the book.

However, Anne Frank Fonds, a group founded by her father Otto Frank in 1963, is disputing. It claims the father is a co-author. Otto Frank died in 1980.

The IPKat blog also this week reported on an OHIM Fourth Board of Appeals ruling last year that found that the title The Diary of Anne Frank was distinctive enough to be registered as a trade mark.


Hoverboard intrigue at CES

The stand of a Chinese manufacturer of so-called hoverboards was raided by US marshals at the CES technology show in Las Vegas, reports the BBC. The company, Changzhou First International Trade, is being sued by rival Future Motion for patent infringement.

In further evidence of the increasing disputes in the hoverboard market, VentureBeat this week reported that Segway has filed a fresh lawsuit against Swagway and Razor.  


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