Sunday, August 12, 2018

Intellectual Property The Hard Way: Part I; Forbes, August 7, 2018

Mary Juetten, Forbes;

Intellectual Property The Hard Way: Part I


[Kip Currier: Cautionary real-world tale about the vital need for Intellectual Property literacy, and "consulting with a lawyer on a regular basis", as the author of this article--the first in a Forbes series of "IP Tales from the Crypt"-esque stories--encourages.]

"In the startup tips series, both the need for intellectual property (IP) protection and foundational protections, like employment and contract agreements were outlined. However, I would like to shift gears now and start a series of lessons learned or in some cases, IP horror stories. If you are interested in contributing please see below.

I spoke with New Orleans lawyer, Andrew Legrand of Spera Law about an interesting cautionary tale concerning an artist who had developed a logo for a small business about ten years prior and the business that paid for it but did not have the rights assigned.  In other words, you do not necessarily get what you pay for. There will be a theme in our stories where clients either do not know that they need to identify and protect their IP or they consciously decide that it’s not worth the time or money."

Tuesday, August 7, 2018

A Presentation on Legal Issues for Podcasters - Who Owns What?; Lexology, August 3, 2018

Lexology; A Presentation on Legal Issues for Podcasters - Who Owns What?

"Last week, I spoke at Podcast Movement 2018 – a large conference of podcasters held in Philadelphia. My presentation, Legal Issues In Podcasting – What Broadcasters Need to Know, was part of the Broadcasters Meet Podcasters Track. The slides from my presentation are available here. In the presentation, I discussed copyright issues, including some of the music rights issues discussed in my articles here and here, making clear that broadcaster’s current music licenses from ASCAP, BMI, SESAC and even SoundExchange don’t provide them the rights to use music in podcasts. Instead, those rights need to be cleared directly with the holders of the copyrights in both the underlying musical compositions as well as in any sound recording of the song used in the podcast."

Monday, August 6, 2018

Seeking a Vulgar Trademark? Better Wait for Supreme Court Review; Bloomberg News, August 1, 2018

Susan Decker, Bloomberg News; Seeking a Vulgar Trademark? Better Wait for Supreme Court Review

"The U.S. Patent and Trademark Office has placed suspensions on trademark applications that contain “scandalous or vulgar” words while it considers whether to ask the Supreme Court to look at the issue...

There’s always the chance that the trademark office will put other roadblocks in front of applications even if the “scandalous” standard goes away, like saying that the trademark doesn’t really identify the source of a good or service, or that it’s only an ornamental use.

And there’s no indication the ruling has led to a rise in applications for what many would consider hate speech, Baird said. One reason -- you have to pay the application fees and show you actually are using the trademark."

A conversation with Kareem Abdul-Jabbar at the 2018 Trademark Expo; Director's Forum: A Blog from USPTO's Leadership, August 6, 2018

Guest blog by Linda Hosler, Deputy Program Manager for USPTO partnerships;
A conversation with Kareem Abdul-Jabbar at the 2018 Trademark Expo

"On July 27 and 28, guests poured in to the Smithsonian’s National Museum of American History to participate in the 2018 National Trademark Exposition. This free biennial event supports the USPTO’s mission of educating the public about the vital role intellectual property protectionsin this case trademarks play in our increasingly competitive global marketplace. More than twenty exhibitors, including government entities, non-profits, small businesses, and corporations from all over the country provided thought-provoking interactive displays and educational workshops.

Keynoting at this year’s expo was NBA All-Star, author, and entrepreneur, Kareem Abdul-Jabbar. I had the opportunity to sit down with Abdul-Jabbar to find out what made him the industry giant he is today—not surprisingly, it is much more than his 7 foot 2 inch stature."

Saturday, August 4, 2018

Why Pittsburgh’s Innovation and Performance team takes an open-source approach to open data;, August 1, 2018

Tara Matthews,; Why Pittsburgh’s Innovation and Performance team takes an open-source approach to open data

"This is a guest post by Tara Matthews, the senior digital services analyst at the City of Pittsburgh's Department of Innovation and Performance.
Picture it: Pittsburgh, Pennsylvania. October 2015.
It was the birth of what would be named the Western Pennsylvania Regional Data Center (also known as the WPRDC, also known as “Whopper Duck”), an all-star collaboration between the City of Pittsburgh, Allegheny County and the University of Pittsburgh.

This put us in the unique position of hosting not just city and county data, but data from non-governmental organizations such as the Carnegie Library and Bike PGH, as well as other local service providers such as the Port Authority of Allegheny County. This required a specialized set-up, which is why WPRDC is based in CKAN, an open-source data management system that allowed for a completely custom configuration.

The Data Center launch coincided with the kickoff of the city’s Open Data program, managed by the city’s Department of Innovation and Performance."

How your employees can – and must – protect intellectual property; The Globe and Mail, July 18, 2018

Jeff McDowell, The Globe and Mail; How your employees can – and must – protect intellectual property

"Unfortunately, protecting IP is an area where Canada lags globally. Only 10 per cent of small and medium-sized businesses in Canada have IP, and only 9 per cent have IP strategies.

The Canadian government is helping reverse this trend with its new national IP strategy, which supports local innovators through increased resources and legislation. But it’s Canadian companies ourselves who need to see the value in protecting IP − to keep our employees motivated and validate their innovations, to protect our businesses’ hard-won knowledge and to keep strong companies growing and thriving in the Canadian economy."

Make a Name for Yourself: 4 Expert Tips for Choosing a Name and Trademark; Entrepreneur, August 2, 2018

Darpan Munjal, Entrepreneur; Make a Name for Yourself: 4 Expert Tips for Choosing a Name and Trademark 

"A recent Harvard Law Review study highlighted the upwards of 6.7 million U.S. trademark applications (registered 1985 to 2016) that had been made over the last three decades and suggested that we might soon be at the point of actually running out of trademark options...

Choosing an effective trademark means a trademark that's unique. With upwards of 6.7 million trademarks out there, and only 171,476 words in the English dictionary, you need to start thinking outside the box."

Report – Patent Abuse A Leading Cause Of High Drug Prices In US; Intellectual Property Watch, August 3, 2018

David Branigan, Intellectual Property Watch; Report – Patent Abuse A Leading Cause Of High Drug Prices In US

"The report, “Overpatented, Overpriced: How Excessive Pharmaceutical Patenting is Extending Monopolies and Driving up Drug Prices,” was produced by the New York-based Initiative for Medicines, Access & Knowledge (I-MAK)...

“Spanning twelve drugmakers and a range of conditions such as cancer, arthritis, stroke, and diabetes, the study captures an industry-wide trend of pharmaceuticals ‘evergreening’ their products with excessive patents so they can artificially extend monopolies and boost profits—at the expense of American families and the budgets of public and private payers around the country,” according to the press release."

Friday, August 3, 2018

G.M. Used Graffiti in a Car Ad. Should the Artist Be Paid?; The New York Times, July 17, 2018

Alan Feuer, The New York Times; G.M. Used Graffiti in a Car Ad. Should the Artist Be Paid?

"The law, however, is struggling to catch up with the change in taste and culture, especially when it comes to the issue of when graffiti — an ephemeral form of art — deserves the safeguards of a copyright. This month a federal judge in California will entertain exactly that question as he hears oral arguments in a copyright lawsuit that could determine if graffiti wins new protections, or if companies can use it for commercial purposes without having to compensate the artists who create it."

The Real Deal: Using Found Content ; Lexology, August 1, 2018

[Kip Currier: Informative article with tips on deciding how and when to use images found on the Net.

In my IP course I've shared the "teachable moment" story of a savvy business friend who was getting a start-up up and running about a decade ago and asked me "if it's OK to just scrape images from the Internet to use on the company's website?" You can anticipate my response, which always elicits a knowing laugh from the students--and reinforces the importance of considering potential copyright and risk management issues.]

"As reported by MediaPost, replacing the use of stock images with crowdsourced photos from real people is gaining popularity with major brands. The attraction is obvious: photos from real consumers can be more "authentic, local and real" than stock imagery.

But it's important to keep some rules of the road in mind to avoid the potential of liability for use of found content."

Thursday, August 2, 2018

Trade Secret Thief Hid Files In Digital Photo Of Sunset; Intellectual Property Watch, August 2, 2018

Intellectual Property Watch; Trade Secret Thief Hid Files In Digital Photo Of Sunset

"The criminal complaint alleges that on or about July 5, Zheng, an engineer employed by General Electric, used an elaborate and sophisticated means to remove electronic files containing GE’s trade secrets involving its turbine technologies. Specifically, Zheng is alleged to have used steganography to hide data files belonging to GE into an innocuous looking digital picture of a sunset, and then to have e-mailed the digital picture, which contained the stolen GE data files, to Zheng’s e-mail account."

New Vice Chancellor Named as Pitt Marks Another Record-breaking Year in Innovation; PittWire, August 1, 2018


New Vice Chancellor Named as Pitt Marks Another Record-breaking Year in Innovation


"These and 20 other innovative and impactful discoveries — all developed at the University of Pittsburgh — were the basis for the formation of 23 startup companies that were formed, or “spun out,” in fiscal year 2018, according to Pitt’s Innovation Institute. The institute is headed by Evan Facher, who held the position of interim director until being named director and vice chancellor for innovation and entrepreneurship earlier this week...

 “It’s a big deal that universities are now developing the technology that’s going to propel us into the future,” said Joe Marcanio, who has been guiding University innovators as an Innovation Institute entrepreneur-in-residence since 2015. “My job is to stand behind them and help them avoid the mistakes I learned the hard way.”...

The year in kudos

Pitt rose to No. 21 — up from 27th last year and 35th in 2015 — among the top universities worldwide to be granted U.S. utility patents for a new or improved product, process or machine. Neighboring Carnegie Mellon University, a fellow anchor in Pittsburgh’s innovation ecosystem, was No. 40 in annual rankings compiled by the National Academy of Inventors and the Intellectual Property Owners Association.

In March, Pitt alumnus and trustee Bob Randall (A&S ’65) announced a $2 million gift to accelerate student entrepreneurship through the Big Idea Center at Pitt.
A new Innovation Igniter workshop outlines the path to licensing an innovation or forming a startup company. The two-hour workshop is open to faculty, staff and students who are curious about commercialization.

The first cohort of a revamped Blast Furnace student accelerator program completed the nine-week program in June. Ten teams pitched their business ideas at a June 29 final event at the University Club. The Innovation Institute will host @PITTINNOVATES Open on Sept. 20 to introduce its 2018-19 academic year programming and funding opportunities.

Finally, the Innovation Institute came home a winner from the recent Deshpande Symposium for Innovation and Entrepreneurship in Higher Education, receiving the 2018 Exemplary Practice in Technology Commercialization Award in recognition of its work in accelerating innovations to the market."

Wednesday, August 1, 2018

Before You Begin The Patenting Process, Read This; Forbes, July 31, 2018

Stephen Key, Forbes; Before You Begin The Patenting Process, Read This

"When I started to file patent applications, I was sure the United States Patent and Trademark Office was against me. My claims were always rejected! I know better now. The USPTO is your friend, not a foe. There is a specific process for examining patent applications. If you’re unaware of how that process works and how to win, you may feel surprised, upset, and indignant upon learning the claims in your patent have been rejected.

Don’t be. It’s all part of the process. To the extent that you can, leave your emotions out of it. Education can help you do that. You must familiarize yourself with what to expect, and act in kind. Don’t let yourself be motivated by fear...

6 Tips To Get The Most Out Of The Patenting Process..."

Can Taste Be Subject To Copyright?; Forbes, July 31, 2018

Leslie Wu, Forbes; Can Taste Be Subject To Copyright?

"Chefs and avid restaurant diners may want to follow an issue that has the legal community abuzz. A new and curious recent court ruling over cheese has broad ramifications for the food industry as we know it. 

The question at hand: is it possible to copyright taste?

Although the subject matter of sensory copyright is vast and often confusing to those outside the legal community, the case of Heks’nkaas (“witches’ cheese”) is an interesting one. According to the company, Levola, who bought the recipe for the cheese spread from a local grocery in 2011, it should be allowed to copyright its cheese spread due to its unique taste. The case was initially dismissed, but has been brought before another court, The District Court in The Hague to revisit the ruling."

As Kit Kat, Starbucks and Posh Spice rulings show, intellectual property is big but bittersweet business; South China Morning Post, August 1, 2018

Stephen Vines, South China Morning Post; As Kit Kat, Starbucks and Posh Spice rulings show, intellectual property is big but bittersweet business

"Chinese trademark law is still very much in the process of evolution and the time it is taking to develop is causing much vexation among international branded goods companies. They are also still engaged in attempts to curb outright trademark and intellectual property theft, which is supposed to have been largely stamped out, but as anyone familiar with hawkers on streets of mainland cities knows, this battle is far from over.

Hong Kong has better established and less complex trademark laws and rules but the local regime is hardly exemplary, as applications for trademarks are known to drag on for a long time and there seems to be a rather quixotic approach to what are regarded as being generic names, as opposed to specific names that apply to individual brands...

The issue of trademarks is one of the biggest aspects of intellectual property protection, which is climbing the agenda of both global trade talks and the concerns of individual companies."

'Peanuts' First Black Character Franklin Turns 50; NPR, July 30, 2018

Cecilia Lei and James Delahoussaye, NPR; 'Peanuts' First Black Character Franklin Turns 50

"It was especially defining for a 6-year-old Robb Armstrong, author of Fearless: A Cartoonist's Guide to Life and creator of JumpStart, one of the most widely syndicated black comic strips ever.

"1968 is a very vivid year for me," Armstrong told NPR's Renee Montagne in an interview for Weekend Edition. Two months after King was killed, Bobby Kennedy was assassinated at the Ambassador Hotel in Los Angeles. Armstrong's older brother also died that year, just 30 days before Franklin's debut.

For Armstrong, a young black boy who declared to his mother at the age of 3 that he was going to be a cartoonist, Franklin's inclusion was extraordinary."

Honey Badger may not care, but the ‘creative genius’ who took him viral just won a big victory; The Washington Post, August 1, 2018

Antonia Farzan, The Washington Post; Honey Badger may not care, but the ‘creative genius’ who took him viral just won a big victory

"In June 2015, Gordon filed a lawsuit alleging trademark infringement. The U.S. District Court for the Central District of California granted summary judgment to the greeting card company, saying that the cards were expressive works protected by the First Amendment. Gordon appealed.

On Monday, the appeals court reversed the lower court’s decision, allowing his lawsuit to continue.

In an opinion published Monday, the three-judge panel said that Gordon’s lawsuit against Drape Creative, Inc. and Papyrus-Recycled Greetings, Inc. presents a question that should be tried before a jury: Did the greeting cards add any artistic value that would be protected by the First Amendment, or did they simply appropriate the goodwill associated with Gordon’s trademark?"

Tuesday, July 31, 2018

The unique legal concept that led to Germany’s weird wifi laws; Quartz, July 30, 2018

Edmund Heaphy, Quartz;  The unique legal concept that led to Germany’s weird wifi laws

"Germany is about to get a lot more free wifi. One of the country’s highest courts has upheld a 2017 law designed to put an end to the effect of a peculiar legal concept known as Störerhaftung as it applies to public wifi networks.

For more than a decade, Störerhaftung—most commonly translated as “interferer’s liability”—meant that providers of public wifi could be held liable for copyright infringement committed by users of their networks. That had an obvious chilling effect: By some measures, Germany, the EU’s largest economy, has around half the number of cafes with free wifi hotspots per capita than countries like the UK, Austria, and Sweden.

The court ruling means that, at long last, German businesses can be confident that the law will protect them from prosecution for such copyright infringement."

A Midwestern chain told Hawaiians to stop using ‘Aloha’ with ‘Poke,’ igniting a heated debate; The Washington Post, July 30, 2018

; A Midwestern chain told Hawaiians to stop using ‘Aloha’ with ‘Poke,’ igniting a heated debate

"The lawyers with the firm represented a company from the city, the Aloha Poke Co., that had jumped on one of the latest food trends — selling the Hawaiian staple poke, made from raw marinated ahi tuna — in 2016 and quickly expanded their reach to more than a dozen locations in Chicago and cities such as Milwaukee, Denver, and Washington, D.C.

[Jeffrey] Sampson also operated a poke shop, a luncheonette of 20 seats that he had opened with three friends in downtown Honolulu that shared little in common with the Chicago chain besides the dish and, coincidentally or not, given the commonality of the Hawaiian word, the name. When Sampson and friends opened the luncheonette about a year and a half ago, they had named it the Aloha Poke Shop, using the traditional Hawaiian greeting and word of welcoming.

Now the lawyers, with the firm Olson and Cepuritis, Ltd., were demanding that he change the business’s name, website, logo and materials to cease using the words “Aloha” and “Aloha Poke” immediately...

In a statement posted on social media, the company said that it had two federal trademarks for its logo and the words “Aloha Poke,” for any use connected to restaurants, catering and take out. It took aim at what it said was misinformation being spread about its intent, and said it was only trying to stop “trademark infringers” in the restaurant industry who used the words “aloha” and “poke” in conjunction with one another."

Monday, July 30, 2018

Open data offer risks and rewards for conservation; Nature, July 24, 2018

Editorial, Nature;

Open data offer risks and rewards for conservation

"In a Perspective published this week in Nature Ecology & Evolution (A. I. T. Tulloch et al. Nature Ecol. Evol. 2, 1209–1217; 2018), conservation experts offer a way to help scientists and officials to decide when to publish such sensitive information — and when not to. It’s the latest development in an ongoing debate that pits advocates of open data against those who take a harder line and want more restrictions. The authors warn that a default position in which location data are withheld if a species is identified as being of high biological significance and under high threat — as recommended by the Global Biodiversity Information Facility — risks missing out on the benefits of data sharing.

To aim for a more balanced approach, the scientists drew up a decision tree to help people judge what to do with information gained from wildlife monitoring and surveys. A series of steps asks questions such as “Could data be used to mitigate threats to species?” and “Would sharing location data increase risk of species decline through increased visitation?” In some cases — fish spawning locations for one, because the fishing industry would love to target them — the recommendation is to keep everything from the name of a species to its location under wraps. But in other cases, the need for secrecy is trumped by the possible benefits of transparency. Open data could help local communities fight to protect a habitat when development is threatening a species."

Protecting trade secrets in China; Lexology, July 26, 2018

"What should I do to protect my trade secrets in China?

Taking necessary measures to prevent your trade secrets being used or disclosed by others is crucial to success, particularly in China. Some simple precautions can save you time and money down the track:
  • Ensure employees are educated concerning the confidentiality of information and their obligations;
  • Label all confidential information or documents as such;
  • Control/monitor access to trade secrets limiting access only to those individuals who need the information;
  • Sign non-disclosure or confidentiality agreements with employees and all existing/potential co-operating partners;
  • Ensure company computer systems are well-protected and conduct risk assessments regularly."

Does Kit Kat’s Shape Deserve a Trademark? E.U. Adds a Hurdle.; The New York Times, July 25, 2018

Milan Schreuer, The New York Times; 

Does Kit Kat’s Shape Deserve a Trademark? E.U. Adds a Hurdle.

"It was a good day for Kit Kat copycats.

Nestlé, which makes the candy bar outside the United States, could lose exclusive rights in the European Union to its four-fingered shape, the region’s highest court ruled on Wednesday.

The company has long argued that the Kit Kat’s four trapezoidal bars, linked by a rectangular base, had enough of a “distinctive character” that they deserved a trademark across Europe.

The European Court of Justice, however, told Nestlé that it had not presented evidence that shoppers in Belgium, Greece, Ireland or Portugal would recognize a Kit Kat by shape alone."

IBM wins $83 million from Groupon in e-commerce patent fight; Chicago Tribune, July 30, 2018

Chicago Tribune; IBM wins $83 million from Groupon in e-commerce patent fight

"A U.S. jury awarded IBM $82.5 million after finding that Groupon infringed four of its e-commerce patents.

Friday's verdict is a boon to IBM's intellectual-property licensing business, which last year brought in $1.19 billion for the company, holder of more than 45,000 patents.

IBM sued Chicago-based Groupon for $167 million, accusing it of building its online coupon business on the back of the IBM e-commerce inventions without permission. Midway through their first full day of deliberations in Wilmington, Delaware, jurors sided with IBM, finding that Groupon infringed the patents intentionally. The ruling means the judge can increase the damages award."

10 Effective Ways To Protect Your Intellectual Property; Forbes Technology Council, July 23, 2018

Forbes Technology Council; 10 Effective Ways To Protect Your Intellectual Property

"As your new invention comes to light, your initial thought may be to let the world know. While shouting your success from the rooftops is appealing, before you do, you need to consider how best to protect what you have worked so hard to develop.

Patents and copyrights can offer you some security, but don’t always mean that your design is completely protected, as copies can certainly emerge. There are, however, a number of other options available to you, each with their own strengths.

Below, 10 members of Forbes Technology Council weigh in on some less-common, yet still effective, ways to protect your intellectual property. Here’s what they recommend:"

Sunday, July 29, 2018

2018 National Trademark Exposition, Washington, D.C.: Photos and Observations

Kip Currier, 2018 National Trademark Exposition, Washington, D.C.: Photos and Observations

I attended the U.S. Patent and Trademark Office's 2018 National Trademark Exposition, a free 2-day event held at the Smithsonian's National Museum of American History (home of famous artifacts like Abe Lincoln's Stovepipe Hat and Judy Garland's Ruby Slippers), July 27-28, 2018.

I was fortunate to be able to attain registration for the two free Continuing Legal Education (CLE) seminars. 

The first CLE seminar, Who Owns You When You Are Dead?, was a revealing look at the not-widely-known-or-well-understood Right of Publicity, which can be particularly critical for tax implications and estate planning. The presenters discussed interesting examples involving the estates of Marilyn Monroe, Michael Jackson, Whitney Houston, and Prince--who, unfortunately, died without a will! Not a good idea!

Kareem Abdul-Jabbar, famed former NBA basketball player and best-selling author, spoke at the Opening Session, as well as USPTO leaders Andrei Iancu and Mary Boney Denison:

This session on Counterfeits and Cybercrime provided powerful examples of the impacts of counterfeit goods, such as defective airbags in cars and tainted medicines and drugs:

Brian Levine (speaking, in the above photo), Senior Counsel and National CHIP Coordinator with the U.S. Department of Justice's Criminal Division, mentioned that defective Apple iPhone chargers have caused fires and electrocutions:

The International Trademark Association (INTA) had a booth giving attendees a chance to try to discern the fake good from the genuine good produced by the brand owner.

 In this pic, the counterfeit Uggs boot is...the one on the left (got that one correct!):

This Under Armour counterfeit-spotting test was harder. The grey backpack on the right is the genuine article. The giveaway, per the Under Armour paralegal with whom I chatted, is the higher quality ergonomic straps on the real backpack. Counterfeit goods frequently use inferior manufacturing elements. It can be really hard to spot the differences though, especially when a fake one and a real counterpart aren't side by side.

Interesting chat with several summer interns for NASA. NASA's Booth gave out these cool Inventor's Notebooks--with a great Thomas Edison quote on the back--and information on Open Source NASA Software and Patent licensing and use:

Displays by, in alphabetical order, the DC Roller Girls, Safeway, and Velcro:

I took a USPTO Trademark Examiner and a Trademark Attorney up on their offer to talk about soundmarks (e.g. the NBC chimes, MGM lion, Homer Simpson's D'Oh, and the Harlem Globetrotters theme), as well as smellmarks, like the recently registered smellmark for Playdoh.

The Mouseketeers cap, Coca Cola bottle, and Mrs. Butterworth's Maple Syrup bottle are memorable kinds of shapemarks: 

A woman working the Girl Scouts display shared with me a humorous "teachable moment": a USPTO attorney at the Expo informed her that one of the Girl Scout exhibits (which another employee had created) mistakenly described Juliette Gordon Low's application filed for a 1913 patent when it was actually a trademark:

It's an example that highlights widespread confusion between the four types of Intellectual Property (Patents, Trademarks, Copyrights, and Trade Secrets).

A lifelong aficionado of the U.S. National Park Service (NPS), thanks to many early trips with my family, I also visited their booth. This is their primary logo, the arrowhead:

This is their new "secondary logo", I was told:

And this is an example of the kinds of collaborations between the NPS and corporate partners:

My time at the 2018 National Trademark Expo was very informative and worthwhile. Metro got me around part of the time and I walked the rest--despite scooters, bikes, and cars ubiquitously available for rental:

And I also got to visit two great D.C. area bookstores, Politics and Prose (who had a booth at the Trademark Expo) and KramerBooks: