Category Archives: Intellectual Property

Copyright Protection Denied Due to the Inseparability of an Item’s Artistic Features and its Usefulness

By Contributor Attorney Ashley T. Ellerbe, JD, cum laude, Phi Delta Phi Legal Honor Society, Florida Coastal School of Law, former legal intern for CSX Corporation.

For some copyright holders, the ruling of the United States Ninth Circuit Court of Appeals in Inhale, Inc. v. Starbuzz Tobacco, Inc. may be a disappointing one. Although Inhale, Inc. had a registered copyright for the shape of a hookah water container, that registration would not grant them the protection that they anticipated. 

Inhale sued Starbuzz claiming copyright infringement due to Starbuzz’s use of hookah water containers that were identical in shape to Inhale’s container.  The district court held that although Inhale has a registered copyright, its copyright registration is invalid because the hookah water container is not copyrightable.  The shape of the container is only copyrightable if the sculptural features are capable of existing independently of the utilitarian aspects of the container.  Moreover, the distinctive shape of an item is not a factor in determining whether the artistic features can be separate from its usefulness.  The district court concluded and the court of appeals affirmed that the shape of the container accomplishes its function which is to hold the contents within its shape, thus making the hookah water container uncopyrightable.  Furthermore, to keep a tight seal on Pandora’s Box of potentially similar frivolous claims against innocent defendants, the court of appeals affirmed the lower court’s award of attorneys’ fees and the court of appeals awarded attorneys’ fees that incurred in the defense of the appeal.

 

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Infringement for $345 Million in Damages and Royalties Even After Adaptation of Computer Pricing System.

On May 1, 2013, the US Federal Circuit Court of Appeals held that even when a company adapted a software pricing system that prevented users from saving data into certain fields, the jury finding of a direct infringement was upheld. In Versata Software, Inc. v SAP AM., Inc. the plaintiff had a pending patent on a pricing system, and sold it as an addition to companies like the defendant software maker SAP. While Versata’s patent application was pending, SAP released a new version of its software that infringed the plaintiff’s product.  The Defendant thereafter modified its own product to make it less available to users. But the jury concluded that the products still infringed and awarded plaintiff $260 million in lost profits and royalties of $85 million.

View the case via Justina US Law:  http://law.justia.com/cases/federal/appellate-courts/cafc/12-1029/12-1029-2013-05-01.html?utm_source=Justia+Law&utm_campaign=f6371ef6b9-summary_newsletters_practice&utm_medium=email&utm_term=0_92aabbfa32-f6371ef6b9-406004917

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Publicly Traded Companies Can Use Social Media to Disclose Material, Non Public Information

By contributor Brittney Trigg: Florida Coastal School of Law JD and business law certificate candidate 2014, law clerk for Law Offices of Xavier Saunders, P.A.

Publicly traded companies can now use social media as a way to disclose material, non public information, and be in compliance with Regulation FD.  The company must give investors proper notice of the site that the company will use to disclose that information. Regulation FD and Section 13(a) of the Exchange Act prohibit public companies or persons acting on their behalf, from selectively disclosing material non-public information to certain securities professionals, or shareholders where it is reasonably forseeable that they will trade on that information, before it is made available to the general public. Regulation FD protects against insider trading.

A publicly traded company must disclose all material information to the public, and for purposes of complying with Regulation FD, a company makes public disclosure when it distributes information “through a recognized channel of distribution.” Instead of disclosure through the usual press release or a Form 8-K, companies can now use channels such as Facebook, Twitter, or other social media websites. The SEC recently launched an investigation of Netflix, Inc. because the company’s CEO, Reed Hastings posted on his personal Facebook page an announcement that Netflix had streamed 1 billion hours of content in the month of June. Neither Netflix, Inc. nor Hastings had previously used Facebook to disclose information. Nor had they informed shareholders that Facebook would be used to disclose information about Netflix.

The post was not accompanied by a press release or a securities filing (Form 8-K). But Hastings claims that his personal Facebook page is readily available to the public, especially because he has over 200,000 followers, and the post was picked up on several blogs and news posts. After the investigation, the SEC liberalized its policy and said that Facebook and other social media websites were in fact a “recognized channel of distribution.”

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Antenna Company Threatens Traditional Broadcast Rights and Revenue.

By Contributor Roger M. Groves, Professor of Law and Director of the Business Law Program at Florida Coastal School of Law.

A small startup company, Aereo, provides a method of streaming broadcast TV through a browser. It provides a DVR in a cloud storage system by micro-version TV antennas, thereby rebroadcasting programming content found in the public airwaves.  Aero has recently been sued by a contingent of broadcasters, including Fox, Univision, and PBS and a majority of the media outlets in New York City. The claim is that Aereo infringes of their copyrights. The broadcasters seek an injunction to immediately stop Aereo’s activities and attendant monetary damages.

The economic crux of the dispute is that Aereo provides this service for only $12 a month. This allegedly threatens the substantial license fees and advertising revenue the broadcasters generate from cable companies.  To view the complaint in this case see the link: http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2012cv01540/392820/1/

 

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Under Armour sues Nike for trademark infringement

Under Armour, Inc., a Maryland athletic apparel corporation, has recently filed suit under the Lanham Act for Trademark Infringement and Unfair Competition against the Oregon based corporate giant, Nike, Inc.  The suit arises out of Nike’s alleged wrongful use of Under Armour’s famous phrase “I WILL”.

As early as 1998, Under Armour has been using the “I WILL” phrase as an answer to its iconic slogan “PROTECT THIS HOUSE”.  In the compliant, Under Armour provides illustrative photos and screen images of the “I WILL” mark used on products, packaging, labels, billboards, internet advertisements, and television commercials.  During 2013  the phrase has been used in a global marketing campaign by Under Armour, and the corporation has held valid trademarks for the phrase since 2000 and filed 7 more applications in May 2012, expanding to multiple classes of registration.

Nike allegedly began using the same “I WILL” in bold block letters in late 2012, even repackaging it in connection with another saying: “PROTECT MY HOME COURT”, which Under Armour claims is synonymous with its original slogan.  Nike has disseminated multiple ads and images across various streams of media, including Facebook where users can share the images across the web, and, according to Under Armour, further dilute the use of the mark.  Under Armour is seeking damages, a permanent injunction, and costs against Nike; as well as a demand to destroy any and all products, packaging, etc. in connection with Nike’s use of “I WILL”.  For more information see UNDER ARMOUR, INC. v. NIKE, INC.

By CURB Contributor Nicholas R. Swindle, Florida Coastal JD graduate May 2013, and intern at Tax Defense Network.

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Twitter Granted Patent for Tweets

On March 19, 2013, a patent was issued to individuals Twitter. The patent is awarded for “tweeting” which is technically titled under the patent as a “Device Independent Message Distribution Platform.”

A provisional patent application was filed in July, 2007, so the question of whether the devise was sufficiently novel, useful, and non-obvious is determined as of that time. According the Patent Office, Twitter had a patentable method of distributing messages independently of the sending or receiving devices and “beneficially allows for device independent point to multipoint communication.” For more detailed information see U.S. Patent No. 8,401,009.

– Roger M. Groves, director of business law certificate program, Florida Coastal School of Law

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Considering a Career in Intellectual Property Law?

Continuing education seminars are great opportunities to network with attorneys in the subject area of practice.  If you are considering a career in Intellectual Property Law, The Dade County Bar Association is presenting a short seminar about “What You Need To Know About Intellectual Property Law” on Wednesday, June 8th from 12:00 p.m. until 2:00 p.m. at the Bankers Club, One Biscayne Tower, 2 South Biscayne Boulevard, 14th Floor in Miami.  Speakers will include Mark E. Stein of Higer, Lichter & Givner, LLP and Terri Doud, who is Senior Corporate Counsel at Bacardi U.S.A., Inc.  To register for the seminar, click here.

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