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Supreme Court’s Halo opinion, Oracle v Google, Ed Sheeran, Axl Rose, Eastern District of Texas, M&M’s – the week in IP



Michael Loney


The Supreme Court’s Halo v Pulse opinion, a copyright case involving Ed Sheeran, Axl Rose’s DMCA notices to get the “Fat Axl” meme removed from the internet, the jury’s Oracle v Google verdict being upheld by a judge, a Google case being transferred from the Eastern District of Texas, and an M&M trade mark ruling in Sweden were in the intellectual property headlines in the past week

Also on the blog this week:

Join our next webinar on "PTAB Trials by the Numbers" on June 14

Latest IP developments in Asia

Is the PTAB too unfair on motions to amend?

And in our news and analysis:

Kyle Bass IPRs end up with 57% institution success rate

Americas Women in Business Law Awards: 2016 winners

Merck’s $200m patent damages award voided after "misconduct"

Mexico’s opposition system to come into force by August 30

Can a foreign trade mark really trump a local one in Uganda?

Latest people moves in Asia - June 2016

PAGBAM IP partner named president of Argentina’s patent and trade mark office

Latest people moves in the Americas

Highlights from the PTAB Forum 2016

What in-house practitioners really want

Sequencing the future of IP in genomics

Circuit split over Madonna copyright case tipped to go to Supreme Court


Supreme CourtSCOTUS Halo decision released 

The big news today is that the Supreme Court is out with its Halo Electronics v Pulse Electronics decision.

The court in a unanimous ruling written by Chief Justice Roberts held that the Seagate test for assessing whether enhanced damages should be awarded is not consistent with Section 284 of the Patent Act.  

Managing IP will be publishing further analysis of the opinion later this week.


Photo copier?

Ed Sheeran lawsuit1Ed Sheeran has been sued by two musicians claiming his song Photograph infringes the copyright of one of their songs, reports the BBC.

In a lawsuit filed in the Central District of California, Martin Harrington and Thomas Leonard claim the chorus of Photograph shares 39 identical notes to their track Amazing. The pair are represented by Richard Busch of King & Ballow, the lawyer that won the Blurred Lines case.

The lawsuit states: "The copying of Amazing by Photograph is breathtaking in its deliberateness, magnitude, and hubris."

The documents state that Photograph has sold more than 3.5 million copies. A version of Amazing by Matt Cardle has more than one million views on YouTube.

Harrington and Leonard are seeking damages of more than $20 million and royalties.


Singer seeks Fat Axl removal

Another copyright story involves an actual photograph, with Billboard reporting that Axl Rose has issued takedown requests with Google to get an unflattering image of him that went viral removed from the internet.

The photo inspired a "Fat Axl" meme, with social media users mocking Rose by making food puns on Guns 'N’ Roses songs.

Web Sheriff made a number of DMCA takedown requests on behalf of Rose, listing a number of websites that were allegedly infringing his copyright.

The snag? He may not own the copyright to the image in question, which first appeared in a concert review in the Winnipeg Free Press in January 2010. Web Sheriff told Billboard that Rose receives sign off from all photographers at his shows to transfer copyright to him.

The Winnipeg Free Press disputed this. "We’ve had a number of requests for comment on the circulating memes of Axl Rose based on a photo staff photographer Boris Minkevich took in Winnipeg in January of 2010," it said in a statement. "The Winnipeg Free Press holds editorial copyright on the image and has not approved any third-party usage. We were only recently made aware of these memes, and while we ethically don’t approve, viral media is impossible for us to regulate. Welcome to the jungle."


Judge upholds jury verdict in Oracle v Google

The presiding judge in the Oracle v Google trial has rejected Oracle’s motion for judgment as a matter of law. Oracle argued that no reasonable jury could find against it, but Judge William Alsup ruled that it was reasonable for a jury to find Google’s use of Java software code was fair use, reports Fortune.

Alsup in a 20-page order applied the four statutory fair use factors. "Overall, avoiding cross-system babel promoted the progress of science and useful arts – or so our jury could reasonably have found," said Alsup.

The Disruptive Competition Project (DisCo) commented: "Oracle almost certainly will appeal this order to the Federal Circuit. But given how the district court meticulously found evidence in the record supporting the reasonableness of the jury’s fair use finding, it is hard to imagine that the Federal Circuit will reverse it."


Google gets case transferred

Google received other good news recently when it was successful in getting the Fujinomaki v Google case transferred to the Northern District of California from the Eastern District of Texas.

The transfer decision was granted on May 13 and made official last week. Judge Roy Payne of the Eastern District of Texas issued an order granting Google’s transfer motion and defendants’ joinders. He noted defendants’ evidence at the hearing that the majority of party and third-party witnesses who have knowledge of the accused features are located in the Northern District of California. "Plaintiff did not present meaningful countervailing or rebuttal evidence," he said.

Google new logoJudge Payne also noted that "[i]n particular, no party identified any specific witness or piece of evidence located in the Eastern District of Texas." He concluded that "the Northern District of California is clearly more convenient."

Plaintiff Ryujin Fujinomaki, a Japanese resident, filed a complaint in July last year in the Eastern District of Texas against Google, Samsung, Motorola, LG Electronics, ASUS, and Huawei alleging that their Android-based smartphones and wearables infringed his patent through their lock features. Google filed a motion to transfer venue to the Northern District of California in November.

Barry Bumgardner, Gordie Puckett, and Matthew Juren of Bumgardner Nelson Casto and Shawn Latchford of the Albritton Firm appeared for the plaintiff. Aaron Marks, Jonathan Waldrop, Darcy Jones, Marcus Barber, Heather Kim and Jack Shaw of Kasowitz Benson Torres & Friedman and James Mark Mann of Mann Tindel & Thompson appeared on behalf of Google, Motorola, LG, and ASUS. Thad Kodish and Jane Du of Fish & Richardson appeared on behalf of Samsung, and David Airan and Leonard Hua appeared on behalf of Huawei.

Getting a case transferred is a rarity. But the Federal Circuit has been pushing back on the Eastern District of Texas’s unwillingness to transfer cases in recent years. Google was also involved in the Federal Circuit’s decision last year in In re Google, in which the appeals court directed Judge Payne to stay proceedings brought by Brite Smart and decide a motion to transfer that had been pending for more than nine months. 


No sugar coating M&M’s Sweden ruling

A Swedish court has ruled that the lower-case "m" logo on Mars’ M&M’s product is confusingly similar to Mondelez’s Marabou product, which sells lower-case "m"-marked chocolates.  

According to brandchannel, the Stockholm Court of Appeals ruled that Mars will have to use the capital M&M logo in Sweden starting in July or face fines of up to $246,000.

Mars did not sell M&M’s in Sweden until 2009, whereas Marbou has been sold since the 1960s.

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Jaguar Land Rover to trademark Defender design to see off rivals https://t.co/9XxH3FwZID via @FT

Sep 22 2017 08:55 ·  reply ·  retweet ·  favourite
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@patentassertion @Mathys_Squire Would you be interested in writing a follow up looking at trends in other jurisdictions, eg DE, FR, IT & NL?

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RT @MarquesIP: At #marques17 Dimitris Botis of @EU_IPO & Simon Malynicz of @3NewSquare discuss the EUTM changes coming on October 1 #EUIPO0…

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