Category: Technology

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K&L Gates releases 2017/18 Patents Year in Review – Second Edition
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A Modern Melody for the Music Industry: The Music Modernization Act is Now the Law of the Land
3
Blockchain Can Change Everything: Even Trademark Transactions
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Worth the fight: IP dispute resolution that won’t break the bank
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Chocolate Slab-Gate
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When recording also means communication to the public – interaction between copyright and cloud-based video recording services
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Revolution in personal data protection: GDPR – new provisions, bigger penalties
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If and how to restrict the distribution of bot-programs for online-games – The “World of Warcraft II” Decision, Germany
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Kardashian #copyright saga
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Momentum.africa – Opening of Top-Level Domain Name to Create Opportunities to IP Right Owners

K&L Gates releases 2017/18 Patents Year in Review – Second Edition

2017/18 was an intriguing 12 months in the Australian patent landscape, with Courts being called upon to deliver decisions in relation to a number of issues that have not previously been judicially considered. The judgments delivered in this period have dealt with the patentability of methods claims deploying genetic information, patent term extensions for “Swiss-style” claims and whether applying to list a product on the Pharmaceutical Benefits Scheme constitutes an act of patent infringement.

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A Modern Melody for the Music Industry: The Music Modernization Act is Now the Law of the Land

On October 11, 2018, President Trump signed the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA) into law. The MMA is intended to “modernize copyright law” as applied to songwriters, music publishers, digital music providers, record labels, and others involved in the creation and distribution of music.

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Blockchain Can Change Everything: Even Trademark Transactions

K&L Gates IP Partner, Susan Kayser, co-wrote the following article published in the American Bar Association.

Key issues for many brand owners are proving use of a trademark in commerce, maintaining the integrity of the brand, and combatting counterfeits. Blockchain—by its very nature—can efficiently provide the secure, reliable, and permanent records necessary to prove up genuine trademark use and genuine products. A secure database, spread across multiple computers, with the same record of all transactions, is ideal for tracking trademark transactions, as well as for eliminating paperwork and speeding up transactions.

A trademark and a blockchain have a complementary nature: a trademark acts as a source identifier, and a blockchain can validate a source. Providing trademark owners with a permanent, time-stamped, and secured record of information that is hosted on a peer-to-peer network, blockchain has the potential to transform trademark transactions. This article explores some of the myriad number of potential uses of blockchain for trademark transactions, including in establishing, licensing, and enforcing trademark rights.

Click to read the full article.

Worth the fight: IP dispute resolution that won’t break the bank

Small businesses and individual rights holders are set to benefit from the Intellectual Property National Pilot Scheme in the Federal Circuit Court

A specialist IP list in the Federal Circuit Court of Australia (FCC) is open for business, with the goal of achieving quick, cheap and effective dispute resolution of intellectual property matters.

The Intellectual Property National Pilot Scheme commenced on 1 July 2018 and appeals to small and medium-sized enterprises, individual rights holders and young innovators who may have previously avoided the court system even though they had a legitimate right or a good defence, but found that it simply wasn’t worth the fight.

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Chocolate Slab-Gate

Waitrose has agreed to stop producing “copycat” chocolate slabs following an ongoing dispute with Hotel Chocolat.

Hotel Chocolat accused Waitrose of infringing its intellectual property rights in its distinctive curved shaped chocolate slab.  This was further reinforced when individuals were taking to Twitter to question whether Hotel Chocolat were actually producing the chocolate slabs for Waitrose.  Hotel Chocolat requested that Waitrose removed the offending chocolate slabs from sale.

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When recording also means communication to the public – interaction between copyright and cloud-based video recording services

On 29 November 2017, the Court of Justice of the EU (CJEU) released its judgment in response to a reference from an Italian court relating to cloud recording and computing services provided by VCAST Limited (VCAST). The services enabled VCAST’s customers to select live broadcasts of television programmes that VCAST then remotely, through its own systems, recorded and made available in a cloud data storage space. The Italian court asked whether VCAST could provide this service without the permission from the owner of the copyright over the programme, with a specific query as to the application of the private copying exception provided in Article 5(2)(b) of the Information Society Directive (2001/29/EC) (InfoSoc Directive).

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Revolution in personal data protection: GDPR – new provisions, bigger penalties

On 25 May 2018, the provisions of the general Regulation of the European Parliament and of the Council (EU) 2016/670 of 27 April 27 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the General Data Protection Regulation (GDPR)) will enter into force. The changes are many.

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If and how to restrict the distribution of bot-programs for online-games – The “World of Warcraft II” Decision, Germany

Early in 2017, the German Federal Court of Justice (FCJ) rendered a judgment in relation to the distribution of automation software (“bot-programs”) for the computer game “World of Warcraft”. The claimant developed and owns all rights to the popular online computer game “World of Warcraft”, which it distributes on the Internet. Furthermore, he is the owner of the trademarks “WORLD OF WARCRAFT” and “WOW”. To play the game, users have to acquire client software and register on a server. In the course of registration, the user has to accept the general license terms as well as terms of use of the claimant. The terms of use of the claimant prohibit the use of bot-programs by the user.

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Kardashian #copyright saga

Is this the right angle?
Is this the best filter?
Do I have the legal right to post this content?

While the first two questions may be at the forefront of the mind of social media users, the third is arguably as important as the pressure to push content to followers mounts in a saturated market. It is all too easy to download, screen-shot or take a photo of an image and share it across many platforms, however, taking a laissez-faire attitude to copyright ownership can land social media users in hot water.

Not only is uploading and sharing content protected by copyright a breach of the terms of use of most social media platforms (and could lead to a  user’s accounts being suspended or terminated in some cases) but it may also lead to copyright litigation, as Khloe Kardashian recently discovered.

Last week, Xposure Photos UK LTD, an “international celebrity photo agency”, filed proceedings against Ms Kardashian in the Central District Court of California alleging that she had infringed its copyright in an image that was posted to her Instagram® account.[1]  The image in question had originally been licensed to The Daily Mail and contained a copyright notice “© XPOSUREPHOTOS.COM”. The version of the image that appeared on Ms Kardashian’s account did not contain this notice nor any acknowledgement of Xposure Photos. The unauthorised removal of the copyright notice attracts 17 US Code § 1202 -1203 which provide the basis for a civil action for such conduct. In addition to seeking an injunction to prevent Ms Kardashian from using the image, Xposure Photos is also seeking US$25,000 in statutory damages as well as any profits resulting from the infringement.

While this is arguably small change for Ms Kardashian (who allegedly earns up to US$250,000 for a sponsored post on her social media sites), once legal costs and any time invested in litigation or negotiating a settlement is considered, it seems a hefty price to pay for failing to obtain an appropriate licence from the copyright owner. It is a timely reminder to social media users to ensure that they have the appropriate rights to the content they intend to use.

  1. Xposure Photos UK Ltd v Khloe Kardashian et al, 2:17-CV-3088 (C.D. Cal).

By: Jaimie Wolbers

Momentum.africa – Opening of Top-Level Domain Name to Create Opportunities to IP Right Owners

The new generic top-level domain (gTLD) .africa, a regional domain for users located in and out of the continent, has been officially validated by ICANN.

More than a decade after its other regional counterparts, such as .eu or .asia, the .africa gTLD has been the subject matter of a legal conundrum for years.

Indeed, a conflict between two operators had to be escalated up to U.S. courts before a final decision entrusted the management of the gTLD to a South African company, ZA Central Registry NPC.

This new gTLD will allow the African continent to seize the full potential of the internet revolution, on a continent where the mobile connectivity is now allowing bypassing the expensive copper wire infrastructure development.

The new .africa domain name extension is expected to lead the continent in its global effort to take part in the global information society and become a strategic place to invest.

Accessibility to the new domain name will be gradual: starting on 6 April 2017, a 60-day preliminary phase will allow trademark owners or companies to benefit from a priority right, as well as African countries that intend to protect certain emblematic names such as “Mount Kilimanjaro”. Then, starting on 2 June 2017, an Early Access Phase (EAP) will take place to prevent any hindrance or ransoming by ill-intentioned people.

The .africa TLD will finally be open to all on 4 July 2017, on a first-come/first-serve basis.

K&L Gates has more than 225 lawyers, including approximately 100 registered patent lawyers, agents, and technology specialists with technical or advanced science degrees – nearly 20 with Ph.D.s – who devote their practices to helping clients establish, enforce, and leverage their intellectual property rights worldwide.

We can thus highlight the pitfall to avoid, the topics on which to focus the attention and better defend and protect our clients’ intangible assets with regard to the opening of this new gTLD, on this emerging market.

By: Claude Armingaud, Alexandre Balducci and Solenn Le Guen

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