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

Eli Rosenberg, The Washington Post; 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."

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

Baldwins - Chris Way and Solanda Chen; Lexology;

Protecting trade secrets in China

"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

Christopher Yasiejko, 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:"

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:

 

Intellectual property, not intellectual monopoly; Brookings, July 11, 2018

Zia Qureshi, Brookings; 

Intellectual property, not intellectual monopoly

"Editor's Note: This op-ed was originally published by Project Syndicate.

“The copyright and patent laws we have today look more like intellectual monopoly than intellectual property,” wrote Brink Lindsey and Steven Teles in their recent book about the U.S. economy. Concerns about overprotection of intellectual property acting as a barrier to innovation and its diffusion are not new. But they have gained greater salience now that knowledge has emerged as a dominant driver of economic activity and competitive advantage.

Digital technologies have enabled the emergence of an “intangible economy,” based on soft assets like algorithms and lines of code, rather than physical assets like buildings and machinery. In this environment, intellectual-property rules can now make or break business models and reshape societies, as they determine how economic gains are shared."

2018 National Trademark Exposition, July 27-28, 2018, Washington, D.C.

2018 National Trademark Exposition

The Smithsonian's National Museum of American History, in collaboration with the United States Patent and Trademark Office, will host the 2018 National Trademark Exposition.  The exposition is a free, family-friendly event where you can learn about trademarks.  It will feature educational workshops, exhibits and hands-on activities demonstrating the important role trademarks play in our economy and our lives. Children's activities, including scavenger hunts, interactive games, and trademark design workshops, will be offered both days.  Free continuing legal education (CLE) seminars will be offered for legal professionals.

Exhibitors

• 1000 Cranes, LLC
• American Intellectual Property Law Association (AIPLA)
• DC Rollergirls
• Edible IP, LLC (DBA Edible Arrangements)
• Girl Scouts Nation’s Capital
• Global Brand Council, U.S. Chamber of Commerce
• International Trademark Association (INTA)
• Looshes Labs LLC
• Microsoft
• NASA Goddard Space Flight Cente​

• National Park Service (United States Department of the Interior) and National Park Foundation
• NumbersAlive!
• Politics and Prose
• Safeway
• Segway Inc.
• Tenneco Automotive
• The National Institute on Deafness and Other Communication Disorders
• Under Armour, Inc.
• Velcro Companies 
• YMCA

Au Revoir, Droit de Suite—9th Circuit Narrows California Resale Royalty Act to a Single Year’s Sales; Lexology, July 9, 2018

Sullivan & Worcester LLP - Nicholas O'Donnell, Lexology; Au Revoir, Droit de Suite—9th Circuit Narrows California Resale Royalty Act to a Single Year’s Sales

[Kip Currier: A very savvy undergraduate student in a Pitt course for which I was guest lecturing on Patents and Trademarks earlier this month asked me about resale rights in the U.S. 

Timely article on recent developments, given my lecture yesterday on International Intellectual Property, moral rights, and the U.S.'s Visual Artists Rights Act of 1990 too.]

"The idea of moral rights continues to be a notable difference between European and American intellectual property rights with respect to visual arts. Last week’s decision by the U.S. Court of Appeals for the 9th Circuit in a case brought by artist Chuck Close and others addressing the California Resale Royalty Act (the CRRA) underscores those distinctions. In holding that the CRRA is mostly preempted by federal copyright law and thus can be applied to entitle artists to secondary royalties only for sales of art in a single calendar year—1977—the 9th Circuit affirmed the skepticism with which American law continues to regard anything other than classic copyright. Given the failure of efforts to pass national legislation to provide for resale royalties, this decision is probably the end of the line for the foreseeable future in the U.S. for droit de suite, the term of art used to describe the concept."

South Africa’s Proposed Copyright Fair Use Right Should Be A Model For The World; Intellectual Property Watch, July 24, 2018

Intellectual Property Watch; South Africa’s Proposed Copyright Fair Use Right Should Be A Model For The World

[Kip Currier: I'm teaching 15 online students in my Intellectual Property and "Open" Movements course this Summer Term and posted this announcement on our Courseweb site today:


I highly recommend reading this article, especially as a capstone to the material we have explored this term and in conjunction with your reading of this course's final required text, Reclaiming Fair Use by Pat Aufderheide and Peter Jaszi.

Questions to consider:

• What did you notice about fair use from reading the article?
• In what ways does U.S. fair use compare with South Africa's proposed fair use right?
• What are some ways that the proposed South Africa fair use right may impact copyright holders, users, and other stakeholders?
• Did you notice which persons and organizations are the authors of the article?
• How about that fair use is a "defense" in the U.S. and a "right" in the South African proposal?
• How does the proposed South African fair use right compare and contrast with the recent controversial European Union Copyright Directive?
• What else...?]

"Sean Flynn, American University Washington College of Law
Michael W. Carroll, American University Washington College of Law
Peter Jaszi, American University Washington College of Law
Ariel Katz, University of Toronto, Faculty of Law
Leandro Mendonça, Universidade Federal Fluminense (UFF), Cultural Production Department
Diane Peters, Creative Commons Corporation (HQ)
Allan Rocha de Souza, Federal University of Rio de Janeiro (UFRRJ)

In addition to a set of more open specific exceptions, the South Africa bill contains a well-crafted and unique general exception for “fair use.” The magic of the South African general exception is not in adopting the term “fair use.” The phrases “fair use” and “fair dealing” mean the same thing. The key change is the addition of “such as” before the list of purposes covered by the right, making the provision applicable to a use to a use for any purpose, as long as that use is fair to the author...

We believe that the South African proposal gets it just right. We commend its Parliament on both the openness of this process and on the excellent drafting of the proposed fair use clause. We are confident it will become a model for other countries around the world that seek to modernize their copyright laws for the digital age."

My terrifying deep dive into one of Russia's largest hacking forums; The Guardian, July 24, 2018

Dylan Curran, The Guardian; 

My terrifying deep dive into one of Russia's largest hacking forums

[Kip Currier: I had a similar reaction to the author of this article when I attended a truly eye-opening 4/20/18 American Bar Association (ABA) IP Law Conference presentation, "DarkNet: Enter at Your Own Risk. Inside the Digital Underworld". One of the presenters, Krista Valenzuela with the New Jersey Cybersecurity and Communications Integration Cell in West Trenton, New Jersey, did a live foray into the Dark Web. The scope of illicit activities and goods witnessed in just that brief demo was staggering and evoked a feeling that scenes of "black market" contraband and "bad actors" endemic to dystopian sci-fi fare like Blade Runner 2049 and Netflix's Altered Carbon are already part of the present-day real-world.]

"It’s fascinating to see how this community works together to take down “western” systems and derive chaos and profit from it. Typically, hackers in first-world countries are terrified to work together due to the multiplicative risk of a group being caught. In Russia, however, the authorities don’t seem to care that these hackers are wreaking havoc on the west. They are left to their own devices, and most users on this forum have been regular members for over six years.

A lot of the information on this forum is incredibly worrying, even if a lot of it is harmless 15-year-olds trying to be edgy and hack their friend’s phones. In any case, it’s important to know these communities exist. The dark underbelly of the internet isn’t going anywhere."

Native Tribes Can’t Shield Patents From USPTO Review; Intellectual Property Watch, July 21, 2018

Steven Seidenberg, Intellectual Property Watch; Native Tribes Can’t Shield Patents From USPTO Review

"The strategy was breathtaking in its boldness. Just days before the USPTO was to hear a challenge to Allergan Inc.’s patents on a dry-eye drug, Restasis, the company transferred those patents to a Native American tribe; the tribe then sought to dismiss the USPTO proceedings by asserting sovereign immunity. Following this action, a number of other patentees made similar transfers to Native tribes, in order to protect their patents. More patentees were poised to do so, should this ploy prove effective. It, however, did not. On 20 July, the Federal Circuit Court of Appeals ruled the tribe’s sovereign immunity did not protect its patents from USPTO review. The ruling thus kept intact a key component of America’s patent system."

Farting unicorn row: artist reaches settlement with Elon Musk; The Guardian, July 21, 2018

Damien Gayle, The Guardian; Farting unicorn row: artist reaches settlement with Elon Musk

"A Colorado artist says he has reached a settlement with Elon Musk after challenging the Tesla tycoon’s use of a farting unicorn motif that he had drawn as an ironic tribute to electric cars.

Musk used the cartoon image on Twitter, without attribution, to promote his Tesla electric car range, and ignored Tom Edwards’ attempts to come to a licensing arrangement, telling the artist’s daughter it would be “kinda lame” to sue."

Two men charged with stealing more than $8 million in rare books from Carnegie Library; The Pittsburgh Post-Gazette, July 20, 2018

Paula Reed Ward, The Pittsburgh Post-Gazette; Two men charged with stealing more than $8 million in rare books from Carnegie Library 

[Kip Currier: This is a deeply troubling "library theft" and "breach of the public trust" story, with enormous implications about ethics, management, leadership, and Board responsibility and oversight. It'll definitely be a case study in my courses at the University of Pittsburgh and in the ethics textbook I'm writing.

Reading the Perry Mason-esque True Crime-confessional details (e.g. Priore: "greed came over me. I did it, but Schulman spurred me on") in The Post-Gazette's front-page article brought to mind the oft-heard adage "Crime doesn't pay"--a favorite slogan of the FBI, starting in 1927, and then used in the comic strip Dick Tracy in 1931.] 


"It ranks as one of the largest library thefts in history.

Greg Priore, 61, of Oakland, who worked as the sole archivist and manager of the library’s rare book room since 1992, is charged with theft, receiving stolen property, conspiracy, retail theft, library theft, criminal mischief and forgery.

John Schulman, 54, of Squirrel Hill, who owns Caliban Book Shop, is charged with theft, receiving stolen property, dealing in proceeds of illegal activity, conspiracy, retail theft, theft by deception, forgery and deceptive business practices...

“Priore explained that he took a lot of maps and pictures – in all possibly 200 items – from the Oliver Room. Priore then stated ‘You got me, I screwed up.’ He also stated, ‘Please tell [library executive director] Mary Frances [Cooper] I am sorry and I let the whole place down.’”"

Lawyers for Velcro use music video to offer thanks for angry feedback on trademark plea; ABA Journal, June 12, 2018

Debra Cassens Weiss, ABA Journal;

Lawyers for Velcro use music video to offer thanks for angry feedback on trademark plea

[Kip Currier: Interesting to see this "music video about a trademark plea" by VELCRO Brand Fasteners. During a guest lecture on Trademarks and Patents for undergraduate students at the University of Pittsburgh School of Computing and Information earlier this week, I mentioned VELCRO as an example of a company trying to avoid the fate of becoming a "generic mark" through "genericide".

As Tom Kulik writes in a 7/2/18 article, "Losing Your Brand Identity: How To Commit Trademark Genericide Without Really Trying", for Above The Law, "acceptance that rises to the level of identification with the specific good or service (as opposed to the source of such goods or services) is the death knell for trademarks."  

Examples of generic marks include Aspirin, cellophane, escalator, trampoline, and zipper.

I first became aware of VELCRO's genericide-avoidance efforts when I spoke with a VELCRO Representative working at the company's booth for the 2016 U.S. Patent and Trademark Office's National Trademark Expo in Washington, D.C. I was able to find in my 2016 National Trademark Expo Swag Bag the informational pamphlet VELCRO passed out at the Expo:

   
I was invited by the VELCRO Rep to take the VELCRO Hook and Loop Challenge...

Using 3 different types of VELCRO of varying strength...

VELCRO Samples, 2016 USPTO National Trademark Expo, (c) James "Kip" Currier

The back of the pamphlet and the VELCRO Rep explained the varied uses for which the different types of VELCRO are deployed...

I mentioned that I teach IP Law at Pitt and the VELCRO Rep nicely gave me 3 samples to take back to show.  

The white-and-green-striped VELCRO rolls (in the upper right section of the above photo of the 3 samples) are freebie samples that the VELCRO booth persons were also passing out to National Trademark Expo attendees.]

"Those aren’t lawyers on Velcro Companies’ new music video thanking the public for its angry feedback. They are actors playing lawyers.

But in-house lawyers were involved in the making of the video, Corporate Counsel reports. And they believe the company’s “Don’t Say Velcro” campaign has been successful, even if some people did have a negative, F-bomb-loaded reaction to its plea to save its trademark.

Velcro wants people to use VELCRO® Brand (as an adjective, as in “VELCRO® Brand fasteners) when referring to its product, and to use “hook and loop” when referring to scratchy, hairy fasteners made by other companies.

Velcro released an initial video last September in which actors playing lawyers explain in song that the Velcro patent has lapsed and the company will lose its trademark if the word is used to refer to all hook-and-loop fasteners. Some actual in-house lawyers also made appearances in the original video."

“We’re asking you not to say a name it took 50 plus years to build,” one character sings. “But if you keep calling these Velcro shoes, our trademark will get killed.”"