Now We Know Who Will Hear Viacom v. YouTube Appeal in Second Circuit

Have you been wondering who is going to decide Viacom’s Appeal against Judge Louis Stanton’s summary judgment opinion in their $1bn lawsuit against YouTube?  Me too; and now we know.

The Second Circuit has this morning updated its calendar for next week and informs us that the Panel hearing the appeal at the Federal Courthouse on Pearl St next Tuesday (October 18, 2011) will be Miner, Cabranes and Livingston C.JJ.

So, Judge Denny Chin, who presided over Bernie Madoff’s criminal trial, sentencing him to the maximum 150 years in prison, as well as claims involving the Naked Cowboy, and who earlier this year all but ended settlement prospects in the Google Books litigation, will not be participating in this round of litigation.  Google might be pleased about that, given some of the comments made in his GBS order. Read more »

More #badIPnews

IP to-do list

Good intentions, but...

With the increasing importance of intellectual property on companies’ balance sheets, and the rise in litigation between them, the law of averages dictates that we’ll be noticing more mistakes in articles discussing the nature of IP and its territorial limits.  You know the sort of thing I mean: bloggers who note how someone is patenting their trademark; Britons telling other Britons that their use of a copyright work is ‘fair use’ (no such defense exists in the UK, yet).

But occasionally some of the big players get it really wrong too. Last month, an employee at the BBC defended their use of photographs and text without permission by telling an aggrieved netizen that:

Twitter is a social network platform which is available to most people who have a computer and therefore any content on it is not subject to the same copyright laws as it is already in the public domain.

That’s an obviously absurd argument, and it was retracted and replaced with a (slightly) better attempt at explaining how the BBC’s practices comply with local IP laws (though it’s questionable whether that aim has been met, even though it may be sincerely pursued).

I’ve also just noticed that The Telegraph is getting in on the act too, with this gem about Apple and Samsung‘s ongoing worldwide litigation over the Galaxy Tab and iPhone 5:

While the Galaxy Tab case was about intellectual property, the hypothetical injunction against the iPhone 5 would be a patent infringement claim.

Err, right. This is a doubly strange comment since patents are usually what most people cite when asked to name an intellectual property right.

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Anyway, there have been so many examples of this type of misinformed reporting recently that I thought we should establish a Twitter hashtag to more easily identify these stories so that we could ask their authors to correct their mistakes. This is especially important when the offending party is a trusted media outlet, such as the BBC or NPR (did you listen to their ‘When Patents Attack’ podcast? I still can’t quite believe what I heard).

So the hashtag we (it was suggested by @TTABlog) have come up with is #badIPnews. Self-explanatory, if not very punchy, but it works for these crowd-sourcing purposes.

So if you come across an article that misrepresents IP, or just gets it plain wrong, get onto Twitter and let us know via the #badIPnews hashtag!

BREAKING – Second Circuit Court of Appeals Sets Date For Viacom vs. YouTube Appeal

BREAKING NEWS – The Court of Appeals for the Second Circuit has just published its calendar for the week beginning October 17, 2011 and it contains what many of us have been waiting a long time to see – Viacom’s appeal against Judge Louis Stanton’s finding that YouTube is a beneficiary of the DMCA’s safe harbors and is not liable to Viacom for third party’s (historic) infringements.

The appeal is set for the morning of Tuesday, October 18, 2011.  The Panel has not yet been announced, so watch this space.  I wonder if Judge Chin, who last year moved up to the Court of Appeals and counts Bernie Madoff and the Google Books Settlement among his previous victims cases, will sit for this one.

Viacom has been allotted 12 minutes, with YouTube given the same time to respond (case 10-3270-cv).  The joined case brought against YouTube by the Football Association (case 10-3342-cv), follows immediately afterwards, with both sides again having been allotted 12 mins each.

Help Us, Copyright; You’re Our Only Hope!

Parody screenshot of a phone with poor security

In case you're wondering, the missing line says "areyoukiddingmewhatseriously?" It's not my password.

As any celebrity – and certain governments and law firms – will tell you, there are risks as well as benefits in being connected to publicly accessible networks.  Individuals and collectives such as Wikileaks, Anonymous and LulzSec have embarrassed the US government, the law firm ACS:Law, and now Scarlett Johannson and Jessica Alba by exposing their private, err, ”data”  online for public consumption.

This is not a new phenomenon, but still far few of us take data theft and cyber (or “digital”, if the word “cyber” scares you) threats seriously.  Perhaps it’s because we don’t really understand them.  Hacks happen for different reasons – which is perhaps the best insight into how to prevent them in the first place – different targets experience different damages, and different victims have different tools at their disposal to try to fix what has gone wrong.    For example, secretions of government data are often carried out in the name (or at least under the pretense) of civil rights and accountability;  disclosures of usernames and passwords, credit card details, and private photos, on the other hand, are often carried out opportunistically to humble a giant or for no more than purient voyeurism.

Read more »

Google Increases Ad Prominence For Sellers Using Third Party Trademarks

Brand owners are likely to be unimpressed by Google’s latest update to its AdWords program, which gives purchasers of third party trademarks increased prominence for their ads. The change, which is already in operation, means “organic” search results will be pushed further out of view by sponsored ads, whose format now looks like some categories of organic results. Read more »

LA Court – Madonna’s Not The Only Material Girl

Madonna Material Girl Ad for Macys

Image from fanpop.com

Women’s Wear Daily today reports on a matter that was covered on this blawg last August (Madonna’s Macy’s Material Met By Mark Lawsuit), namely an attempt by an LA company to put a stop to Madonna and Macy’s ‘Material Girl’ clothing line.  The Plaintiff, L.A. Triumph, Inc, argues that it has the prior rights to the “MATERIAL GIRL” mark, though it appears that these rights are unregistered and therefore limited to the extent of its reputation. Read more »

FTC Calls Drug Patent Settlements “Illegal Sweetheart Deals”

With thanks to my good friend Dr. Michael Cohen, I came across an article in the New York Times about yesterday’s FTC report into the interplay of drug patents, litigation, business and competition.  The report is some 270 pages long, so I’m not going to be reading it any time soon, but the central allegation is that some drug manufacturers are illegally distorting the post-patent market for generic medications.  They do so, it is contended, by agreeing that both the patent holder and the generics maker will enter into a moratorium upon the expiry of a relevant patent, during which time neither party will bring their (competing) generic drugs to market. Read more »

New York Becomes Latest Court To Rule Against Use of Trademarks in AdWords

Plush toy pillow

A pillow, yes; a pet, no.

A District Court in New York has become the latest to find that using a competitor’s trademark in Google’s AdWords program can be trademark infringement. District Judge Roslynn R. Mauskopf found that the Defendants’ selection of “PILLOW PETS” and similar marks as a trigger for Google Ads is likely an infringement of the Plaintiff’s registered trademarks “MY PILLOW PETS” and “IT’S A PILLOW, IT’S A PET”, and granted Plaintiff’s motion for a preliminary injunction. The case is CJ Products LLC v. Snuggly Plushez LLC, 11-CV-0715 (RRM)(SMG), NYLJ 1202512398696, at *1 (EDNY, Decided August 22, 2011). Read more »

Make IT easier for yourself

In addition to being able to follow this blog on Twitter, LinkedIn and via RSS, I’ve added a new subscription box to the right hand side of each page so that you can receive new posts via email as soon as they’re posted.  You can choose to receive extracts or full text emails, in either plain text or HTML format.  Read more »

Judge-Led Charge Against American Fashion Designers Continues

Louboutin's (US) red-sole trademark number 3361597

Take it as red - this dispute is not over yet

Fashion designers, as a class, should gain only limited IP protection, according to Judge Victor Marrero of the Southern District of New York.  Giving judgment in Christian Louboutin SA et al v. Yves Saint Laurent America, Inc et al., 1:11-cv-2381 (NYSD August 10, 2011), Judge Marrero acknowledged that the world famous Louboutin house has acquired extensive reputation and goodwill in their red soles – to the point that said soles have acquired a secondary meaning of designating Louboutin footwear only – yet ruled that this meant nothing because their goods are items of fashion.

The decision is curious since Judge Marrero relies, at least in part, on a comparison between apples and oranges. Read more »