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This week in IP: Judges seek trials return, Xiaomi sues ETSI, Coke makes diversity demands
Managing IP rounds up the latest trademark, copyright and patent news, including some stories you might have missed

Lack of trials is tribulation, say district court judges
In a series of interviews with Managing IP, four of the
busiest district court judges in the US said their top priority this year was
to restart jury trials as soon as possible – but noted that the process would
be tricky, and that they needed professionalism and understanding from
attorneys to make it work.
“My first, second, third and fourth priorities this year are
the same – getting back to trials. There really is no number two,” says Judge
Alan Albright of the District Court for the Western District of Texas, the US’s
most popular patent court.
Len Stark, chief judge at the District Court for the District
of Delaware, says litigators can help his district’s judges meet the challenges
facing their busy court by understanding the situation they confront and that
civil cases may not be at the top of the to-do list once jury trials resume.
“IP counsel especially need to recognise and explain to
their clients that as we restart jury trials, we are required to give priority
to criminal trials, which might lead to further delays and cancellations of
civil jury trials,” he says.
Click here to read the full article.
Other Managing IP stories published this week include:
How biotech brands are battling COVID counterfeits
IFPMA interview: medicine access challenges ‘not remotely IP related’
Spanish site-blocking ruling a ‘natural evolution’ of orders
Senior Chinese judge wants justice at public’s fingertips
Top 2020 US patentees reveal prosecution strategies
How in-house fight infringers in ‘broken’ post-GDPR world
Xiaomi sues Philips and ETSI in Paris
A new battle in the standard essential patent wars has
erupted, it emerged on Wednesday, February 3, after the standards-setting organisation ETSI
informed its members that Xiaomi had filed a suit against it at the Paris Court
of First Instance.
The Chinese smartphone maker demanded that ETSI contributed
to the conclusion of a licence agreement with Philips on fair, reasonable and
non-discriminatory (FRAND) terms and that the standards-setting body pay €1 ($0.80)
in damages.
The phone maker also demanded that ETSI hold a general
assembly to expel Philips for breach of its obligations in accordance with
Articles 8 and 14 of its IPR policy.
Xiaomi’s decision to sue ETSI in Paris followed the
precedent set by TCL v Philips in
2019, in which the Paris court established that it had jurisdiction to hear
FRAND-related disputes involving ETSI because the standard body was
headquartered in France.
Philips has sued Xiaomi in multiple jurisdictions including
Germany, the Netherlands and India for infringement and refusal to accept a
FRAND licence for its 3G and 4G technology.
The recent decision to sue in France has been seen by some
as a delay tactic for Xiaomi to stay litigation in these other countries.
Coca-Cola makes bold diversity demands of counsel
Coca-Cola set out new expectations for its external counsel
network last week, including that at least 30% of billed lawyers are from
diverse backgrounds.
The company called for the law firms it works with to
provide data on racial diversity among staff, as well as information on
employees who identify as LGBTQ+ and people with disabilities.
At the moment, the measures apply only to Coca-Cola’s US
business.
The move follows similar guidelines adopted by pharmaceutical
company Novartis and technology business Intel, which also both insisted that the law
firms they instruct should meet diversity targets.
Bradley Gayton, who became Coca-Cola general counsel in
September last year, revealed the guidelines in an open letter published last Thursday(January 28). The
letter was also endorsed by the firm’s associate general counsel for
intellectual property, Benny Lee.
In the letter, addressed to ‘US law firms supporting the
Coca-Cola company’, Gayton – an African-American man – said: “The hard truth is
that our profession is not treating the issue of diversity and inclusion as a
business imperative.
“We have a crisis on our hands and we need to commit
ourselves to specific actions that will accelerate the diversity of the legal profession.”
In a Managing IP article last year that focussed on
the experiences of black IP lawyers, one source told us that when seeking
external private practice lawyers, some in-house decision makers may ask for a
diverse team but may not necessarily pay close attention to the roles within
that team.
ITC probes Ericsson Samsung patent case
The US International Trade Commission announced on Tuesday,
February 2, that it would investigate patent infringement complaints that
Ericsson made against Samsung.
Ericsson requested that the ITC look into the claims and
issue limited exclusion and cease and desist orders. The telecoms company
submitted its petition on January 4. Samsung filed its own ITC complaint
against Ericsson on January 7.
The two companies recently made headlines (including one in Managing IP) when Chief Judge Rodney Gilstrap at the District Court for the Eastern District of Texas granted Ericsson’s request for an anti-anti suit injunction in a licensing dispute on January 11.
He also told Samsung that any
litigation in China would not prevent the US from rightfully setting its own
fair, reasonable and non-discriminatory rate.
Delays at district courts may compel companies to use the
ITC more this year. According to the Docket Navigator database, 54 cases were filed at the
commission in 2020 and nine have been filed so far this year. As of February 4,
the website estimated that 94 complaints will be filed in 2021.
British political magazine rebukes US trademark challenge
The Spectator, a weekly political magazine based in the UK, published
a scolding retort
on Tuesday, February 2, to a trademark suit filed against it at the District Court
for the Eastern District of Virginia by the The American Spectator Foundation.
The retort argued that The Spectator’s brand long preceded that
of The American Spectator, pointing out that the British publication was founded
in 1828 and has been read in the US since at least the 1860s. The American
Spectator, previously called The Alternative: An American Spectator, was founded in the 1920s.
It suggested that the magazine’s team was surprised
by the suit, noting that the two publications had a friendly relationship and
that The Spectator had wished The Alternative well when it rebranded in the
1960s and then again in the 1970s.
“The Spectator and The American Spectator (and many other
publications that use the word ‘Spectator’ in their masthead) have co-existed
for many decades without issue,” said the article’s author.
“The Spectator today is a very different magazine to The
American Spectator. The Spectator has by its nature a much more international
outlook, believes in diversity of opinion and covers culture, books and the
arts from a range of perspectives.
“The American Spectator is more ideological and narrowly
focused on the politics of the American right. So we have always operated on
the basis that there should be room for both of us and more in the marketplace.”
The American Spectator Foundation filed its suit in
September 2020, seeking damages and a corrective advertising campaign from The
Spectator’s holding company Press Holdings Media Group.
It claimed that The Spectator’s US edition and
‘Spectator USA’ were similar in sound, meaning and appearance, and created the
same commercial impression as the ‘The American Spectator’ mark.
The motion to continue the rule was passed on January 29 and
legal counsel for The Spectator are expected to appear before the Court of
Appeals for the Second Circuit on February 17.
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