Roundtable discussion: Tribes, intellectual property, and consumer protection; United States Patent and Trademark Office (USPTO), November 30, 2023 9 AM EST - 5 PM EST

United States Patent and Trademark Office (USPTO) ; Roundtable discussion: Tribes, intellectual property, and consumer protection

Join intellectual property (IP) experts, senior officials from the United States Patent and Trademark Office (USPTO) and other federal agencies, and Tribal representatives for an in-depth examination of consumer protection, the protection and enforcement of IP, and the impact of counterfeit goods on the economies of Native American communities.

Topics to be explored will include:

• The scope and impact of IP crime on Native Americans
• How to protect Native American arts and crafts
• State and tribal cooperation on consumer protection investigations
• International developments in the protection of traditional knowledge, cultural expressions, and genetic resources
• Strategies for raising public awareness and changing consumer behaviors

Two arrested after US storage facility emptied of $1bn in ‘massive amounts of knock-off designer goods’; The Guardian, November 16, 2023

Jenna Amatulli, The Guardian; Two arrested after US storage facility emptied of $1bn in ‘massive amounts of knock-off designer goods’

"Federal prosecutors arrested two men on Wednesday and seized more than 200,000 counterfeit handbags, clothes and other luxury items worth $1.03bn, making it “the largest-ever seizure of counterfeit goods in US history”...

Ivan Arvelo, special agent in charge of homeland security investigations, praised the findings in a statement, claiming it “underscores the unwavering commitment of HSI New York in the fight against intellectual property theft and serves as a testament to the dedication of our team and partner agencies, who have tirelessly pursued justice, culminating in the largest-ever seizure of this kind”...

Hand added that the counterfeit market is a “significant problem not just for luxury fashion brands and the dilution of their trademarks’ values but also for consumers and society at large as many counterfeit products are produced in oppressive labor environments and without any adherence to ecological production methods (if implemented by brands)”."

China Continues to Fall Short of Promises to Protect Intellectual Property, U.S. Says; The New York Times, April 27, 2022

 Ana Swanson, The New York Times; China Continues to Fall Short of Promises to Protect Intellectual Property, U.S. Says

"The Office of the United States Trade Representative criticized China, Russia and other countries on Wednesday for continuing to fall short of promises to protect intellectual property in a report that cataloged various infringements by America’s trading partners.

The annual report placed 27 trading partners on so-called watch lists for intellectual property infringement, and labeled Argentina, Chile, China, India, Indonesia, Russia and Venezuela as being on a “priority watch list” of countries that had the most egregious practices or the biggest effect on U.S. businesses...

China remains the largest single source of counterfeit and pirated goods, accounting for more than 83 percent of what global authorities seized in 2020, the report said. That included medical products like Covid-19 testing kits, N95 respirator masks, sanitizers and disinfectants."

Counterfeit Covid Masks Are Still Sold Everywhere, Despite Misleading Claims; The New York Times, November 30, 2021

 Andrew Jacobs, The New York Times; Counterfeit Covid Masks Are Still Sold Everywhere, Despite Misleading Claims

"“It’s really the Wild West out there with so many bad actors ripping people off,” said Anne Miller, executive director of Project N95, a nonprofit that connects people to bona fide personal protective equipment."

Spike in coronavirus knock-offs; Tiger King trademark fiasco; new TMview and DesignView - news digest; Lexology, April 3, 2020

World Trademark Review - Jonathan Walfisz, Lexology; Spike in coronavirus knock-offs; Tiger King trademark fiasco; new TMview and DesignView - news digest

"“Every Tuesday and Friday, WTR presents a round-up of news, developments and insights from across the trademark sphere. In our latest edition, we look at how counterfeit vaping devices are resurfacing as a major issue, the first well-known trademark being registered in Tajikistan, a new CEO being unveiled at UpCounsel, AM General retreating on its Call of Duty lawsuit, and much more. Coverage this time from Trevor Little (TL), Bridget Diakun (BD), Jonathan Walfisz (JW) and Tim Lince (TJL)...

"Tiger King” sought reputational damage, in addition to murder – New Netflix documentary series ‘Tiger King’ has been the viral entertainment of the past month, and features a real treat for trademark professionals. The show follows the eccentric Joe Exotic, a self-described “gay, gun-carrying redneck with a mullet” who owned a private zoo in Oklahoma. Across seven episodes, the show looks at Exotic’s bitter, decades-long feud with animal conservationist Carole Baskin, who owns the Big Cat Rescue sanctuary and passionately wanted to put Exotic out of business for alleged mistreatment of the exotic animals in his care. The show features dozens of unbelievable moments, with one particular episode focused on a trademark dispute between the pair. While we won’t spoil the outcome, it hinges on Exotic launching his own ‘Big Cat’ entity and “boasting on Facebook that he registered the Big Cat Entertainment name to ruin its goodwill on Google”. For those that have seen the series already, The Fashion Law has an informative, fun breakdown of the case in more detail. For those that haven’t seen it, we highly recommend it for any fans of outrageous true-life stories. (TJL)"

European Commission steps up protection of European intellectual property in global markets; European Commission, January 8, 2020

Press Release, European Commission; European Commission steps up protection of European intellectual property in global markets

"The European Commission published today the latest report on protection and enforcement of Intellectual Property Rights (IPR) in third countries. While developments have taken place since the publication of the previous report, concerns persist and a number of areas for improvement and action remain to be addressed. Intellectual property rights infringements worldwide cost European firms billions of euros in lost revenue and put thousands of jobs at risk. Today's report identifies three groups of countries on which the EU will focus its action...

Industries that use intellectual property intensively accounted for some 84 million European jobs and 45% of the total EU GDP in the period 2014-2016. 82% of EU exports were generated by the industries intensively using intellectual property. In these sectors, the EU has a trade surplus of around 182 billion euros. Also, an estimated 121 billion euros or 6.8% of all imports into the EU, are counterfeit or pirated."

Counterfeits in the Digital Marketplace; Lexology, November 7, 2018

Goulston & Storrs PC - Andrew J. Ferren and Jessica Carballo, 

Lexology; Counterfeits in the Digital Marketplace

[Kip Currier: Timely article, on this Cyber Monday, and in light of my IP course's lecture last week on IP Piracy and the Dark Web. 

Anybody else noticing how so many goods fall apart or break really quickly these days?! Glazed gardening pots that crack and disintegrate in one season. Designer metal shower hooks that break off in one year. Ear and nose trimmers that conk out after one use. Clothes that fray--sometimes even after just one wash cycle in cold water. And on and on and on...

As this article makes clear, too, it's annoying when some goods aren't what they claim to be and have a built-in obsolescence of about zero. It's downright dangerous when they explode or catch fire, and when they contain arsenic, lead, and other harmful substances that kids and adults are breathing in and coming into contact with. And let's not forget impacts of counterfeit items on animals, whether farm ones or animal companions, in the form of contaminated feed.

The Trump administration and some federal agencies have made some good steps in the past couple of years in better enforcing IP rights and cracking down on counterfeit goods. The U.S. Congress also needs to take more aggressive action, with civil and criminal consequences, to rein in and hold bad actors and entities accountable and ensure public safety and health are paramount. "Caveat emptor" should not and must not exculpate disreputable sellers from facing the ramifications of their amoral actions.]

"Counterfeiting has moved beyond high-priced luxury goods to low-cost everyday items. Many of these fake products pose real dangers: face masks with arsenic; phone adapters that can electrocute you; computer chargers that fry your hardware; batteries that blow up. These counterfeits infiltrate online marketplaces, where they co-mingle with authentic products in warehouses and ship to unsuspecting consumers. With millions of goods leaving fulfillment centers every day, brand owners and consumers must wrestle with a billion dollar problem: how do you police the largest marketplace in the world?

In January of this year, the U.S. Government Accountability Office filed a report detailing the results of a federal investigation in which 47 products were purchased from five online retailers, including Amazon and Walmart.com. All of the products were advertised as new, shipped from the United States, and sold by third-party sellers with customer ratings above 90%. Nearly half were counterfeit.

How does this happen? The five websites investigated have sizable “marketplaces,” virtual storefronts that let people other than the hosting company sell merchandise. For perspective, more than half of the goods sold on Amazon are from these third-party sellers. Anyone with an ID and a credit card can open a virtual storefront; few identifying details are required to set one up, and these details are regularly falsified. Since 2014, manufacturers from China (the world’s largest maker of counterfeit goods) have been able to sell directly to consumers in the Amazon Marketplace. In fulfillment centers, where products are picked up for packaging and shipment, goods from third-party sellers and goods direct from brand owners co-mingle. The resulting product pool is a mix of authentic and counterfeit goods, all sold as the same product and often for the same price."
 

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:

 

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."

Super Bowl Legal Blitz: Inside The NFL's Legendary Trademark Defense; Forbes, January 30, 2018

Michelle Fabio, Forbes; Super Bowl Legal Blitz: Inside The NFL's Legendary Trademark Defense

"A trademark is a "word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services." Generally, courts use a "likelihood of confusion" test to determine whether trademark infringement has occurred, i.e., whether a consumer is likely to be confused as to the source of the goods or services by the allegedly infringing usage.

Legally speaking, defending a mark is an important aspect of being a trademark owner. Besides the potential weakening and loss of distinctiveness ("dilution" in trademark speak), the failure to enforce a trademark could even lead to the forfeiture of some of the available remedies for infringement.

For this reason, multimillion-dollar companies hire professional watch services to monitor trademark use and possible infringement. And with the NFL, nothing seems to escape its notice—or legal wrath—which goes far beyond just counterfeiters.

In 2007, the NFL sent a warning letter to an Indianapolis church that had advertised a “Super Bowl” party and planned to charge admission for a viewing on a screen larger than 55-inches. The league has since loosened its policies regarding gatherings—the word “Super Bowl” and team names can be used—but still no admission fees are allowed. For churches, the event must be held in the usual place of worship as opposed to a rented space.

Notably, the logos of the NFL, the Super Bowl and the participating teams may not be used, which has led to rather hilarious if legally sound results. Take, for example, this promotional image by a Bethlehem, Pennsylvania arts campus, which features clip art, "Birds" and "Big Game," instead of official NFL logos, "Philadelphia Eagles" and "Super Bowl"..."

"Dangers of Counterfeit Solar Filter Glasses"; Global Intellectual Property Center, August 7, 2017

"GIPC President and CEO David Hirschmann will join the Lars Larson Show tonight at 5:05 p.m. EST to discuss the dangers of counterfeit solar filter glasses ahead of the August 21 eclipse. Hirschmann will also offer general tips on how to avoid counterfeit goods during the busy back-to-school shopping season. Tune into the live broadcast here. Read more on counterfeit solar filter glasses from GIPC's Kasie Brill here. Share on Twitter here."

Why The US Can't Afford To Fall Behind In Intellectual Property Enforcement; Forbes, April 17, 2017

Mark Elliot, Forbes; 

Why The US Can't Afford To Fall Behind In Intellectual Property Enforcement

"It’s not hard to see that the U.S. has more skin in the game when it comes to intellectual property. But that is why it might come as a surprise to some that America no longer leads the world when it comes to IP enforcement: the U.S. Chamber of Commerce 2017 International IP Index shows that the U.S. now ranks fifth, behind the U.K., Sweden, France and Germany. Given the high stakes, this is certainly not a new normal we should embrace.

So, how did we get here? The Chamber’s Index identified as a key weakness our: “inconsistent enforcement against counterfeit and pirated goods.”"

Commemorating the Lanham Act’s 70th; Politico, 9/14/16

Li Zhou, Politico; Commemorating the Lanham Act’s 70th:

[Kip Currier: I attended this reception recognizing the 70th year since the signing of the 1946 Lanham Act (the U.S. federal trademark statute). In highlighting the benefits of the trademark system, the speakers raised some powerful points about the impacts of counterfeit goods--such as Sen. Chuck Grassley's example of implantable medical devices--on public health and safety. Earlier in the day, at the "American Bar Association's Intellectual Property Law 4th Annual Trademark Day: Behind the Scenes at the USPTO", a speaker raised the similarly chilling example of counterfeit ball bearings in commercial airplanes. Compelling cases for ensuring product quality and brand authenticity and identification.]

"The U.S. Chamber of Commerce’s Global Intellectual Property Center will present framed copies of the 70-year-old federal trademark law to the co-chairs of the Congressional Trademark Caucus: Sens. Chuck Grassley (R-Iowa) and Chris Coons (D-Del.), and Reps. Suzan DelBene (D-Wash.) and Randy Forbes (R-Va.)."

U.S. seizes sites linked to copyright infringement; CNet News, 10/26/10

Steven Musil, CNet News; U.S. seizes sites linked to copyright infringement:

"The U.S. government has launched a major crackdown on online copyright infringement, seizing dozens of sites linked to illegal file sharing and counterfeit goods."

http://news.cnet.com/8301-1023_3-20023918-93.html