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Paul Zimmerman
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Showing 17 posts in Intellectual Property.

Intellectual Property
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Some Things Just Can’t Be Settled Over a Beer

The craft brewing industry is focused on its beer, not the courtroom. Indeed, the culture within the space is one of collaboration and compromise, which is why very few beer makers sue over trademark issues, In many ways, this is what makes the craft brewing space – and its product—so special. But despite the spirit of cooperation within their world, there is a time for craft brewers to throw down and litigate—or, at the very least, to issue cease and desist letters in the wake of trademark violations. The question is, when is a more aggressive stance necessary? (Read More)

Intellectual Property
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Paul McCartney Sues Sony/ATV to Reclaim Copyrights to Beatles Songs

Sir Paul McCartney has filed suit against Sony/ATV Music Publishing in New York Federal Court, seeking a declaration that he can exercise his termination rights under the Copyright Act of 1976 in order to reclaim the rights to many of his musical compositions for The Beatles. The songs, which McCartney either wrote, or co-wrote with John Lennon, and which were once owned by pop music star Michael Jackson, are immensely valuable. It is anticipated that Sony/ATV may challenge the former Beatle’s termination notices in order to preserve its rights. (Read More)

Intellectual Property
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A Different Route: Challenging Orange Book Patents Via Inter Partes Review

Since the passage of the America Invents Act (AIA) in 2012, and the corresponding implementation of the inter partes review (IPR) process, patent challengers have been utilizing the Patent Trial and Appeal Board (PTAB) as an alternative venue for patent adjudication. The IPR process permits anyone other than the patent owner to challenge a patent's validity for alleged obviousness or lack of novelty based on patents or printed publications. This has become an increasingly popular avenue for challenging “orange book” pharmaceutical patents, many of which are simultaneously at issue in Hatch-Waxman / Abbreviated New Drug Application (ANDA) litigation in the federal courts. (Read More)

Intellectual Property
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Courts and Patent Litigants Continue to Wrestle With Scope of Supreme Court’s Alice Test

The U.S. Supreme Court's 2014 Alice ruling – which established that abstract ideas implemented on a computer are not patent-eligible – has fostered significant confusion regarding what exactly can and cannot be patented. A new case in the U.S. Court of Appeals for the Federal Circuit, Thales Visionix Inc. v. US (case no. 15-5150), perfectly illustrates the potential negative ramifications of overbroad application of the Alice test for patent holders. (Read More)

Intellectual Property
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German High Court Copyright Decision Indicates Potential Limits on Sample Clearance Requirements 

Concluding nearly two decades of litigation, Germany's highest court has now ruled in favor of a hip-hop artist who used a two-second sample of music from the pioneering electro-pop band Kraftwerk without first obtaining consent or a license to use the sample. Ralf Hutter of Kraftwerk filed suit against Moses Pelham, the producer of the song "Nur Mir" (Only Me) by Sabrina Setlur, for infringing the copyright of Kraftwerk's 1977 recording, "Metal on Metal.” The song's highly recognizable drum loop comprises a foundational thematic element of the group's "Trans Europe Express" album, and has been paid extensive tribute by artists who used imitative musical phrasing going back to the early 1980's electronic music scene. The two-second sample is featured throughout the allegedly infringing recording. Hutter alleged that Pelham's nonconsensual use constituted copyright infringement. Sampling, in which material of one's own or of others' creation is reused, is a common stylistic element in contemporary music, particularly in hip-hop. (Read More)

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New Federal Trade Secret Law: Key Takeaways for Employers

Congress recently passed the Defend Trade Secrets Act (DTSA) which, for the first time, allows companies to file civil lawsuits for theft of trade secrets under federal law. On Wednesday, May 11, President Barrack Obama signed the legislation into law. The DTSA does not pre-empt existing state laws, including California, which previously codified the Uniform Trade Secret Act (UTSA), a model statute. The new federal legislation does, however, provide plaintiffs with a federal private right of action for trade secret claims, enabling companies to sue in federal court for damages related to theft of trade secrets. The DTSA is also significant to California employers in that it imposes specific rules and regulations with regard to whistleblower immunity. In light of these significant requirements, employers should review their agreements, handbooks and procedures to ensure compliance with this pending legislation. (Read More)

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UPDATE: The Priceline Negotiator Fails: BOOKING.COM Is Rejected As A Trademark

Update:

Booking.com B.V. (BBV) has now initiated an action to overturn the Trademark Trial and Appeal Board’s (TTAB’s) determination that “Booking.com” is a generic term for the travel agency services it would be used for. While the TTAB found that the term “Booking.com” would obviously and immediately be understood as having the meaning of booking travel, tours, and lodgings through an internet service, BBV has responded in its recent filing that “there is no basis in law, logic or linguistics for the TTAB’s speculation.” BBV argues that the word “booking” itself has many meanings that are not connected to travel services. BBV further accuses the TTAB of relying on “new theories of human cognition and understanding” to reach its decision rejecting the trademark application. M&R will stay abreast of developments in this lawsuit and share updates as appropriate. (Read More)

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Omni Accuses Vacation Rental Site of Trademark Infringement

Omni Hotels Management Corp. (Omni) has recently filed a trademark infringement lawsuit against HomeAway.com Inc. (HomeAway), in the Northern District of Texas. HomeAway operates multiple websites that offer vacation home rentals, some of which are located on or near Omni’s properties. HomeAway allows users of its vacation rental network to advertise their own homes as vacation rentals, and Omni alleges that 29 listings improperly mention its California and Florida resort properties using its registered trademarks. Omni seeks a portion of HomeAway’s profits, as well as damages caused by the infringement and the removal of the listings in question. Online vacation rentals are a booming industry, and the outcome of this case promises to affect how rental companies monitor and approve third-party content. (Read More)

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Copyrightable-Copywrongable: Cookbook Recipes That Lack Creativity Are Not Protectable Copyrights

On October 20, 2015, the Sixth Circuit found that the recipes in a cookbook were not entitled to copyright protection. Tomaydo-Tomahhdo restaurant owner, Rosemarie I. Carroll, sued her former business partner, Larry Moore, alleging the latter had infringed on recipes contained in her cookbook by offering menu items that were similar in his catering business. The lawsuit specifically alleged violations of a number of Ohio state law claims including unfair competition, and misappropriation of trade secrets. (Read more)

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Trademark Owners Sue Amazon for Showing Competing Products

On July 6, 2015, the U.S. Court of Appeals for the Ninth Circuit ruled, in a published opinion,  that Amazon will have to go to trial in a trademark lawsuit for what many have alleged are confusing search results. In Multi Time Machine v. Amazon.com, Multi Time Machine (MTM) sued Amazon over “key word advertising” that leads to “MTM Special Ops” watches being listed on Amazon.com. Currently, were Amazon users to search for the particular MTM watch, Amazon will display a list of watches made by competitors and sold through Amazon; the search words remain above the list of watches. The Ninth Circuit found that, despite the fact that users probably knew that they weren’t buying an MTM watch, the list of results may cause confusion. The Ninth Circuit’s finding enables MTM to go forward with its lawsuit. Further, U.S. Circuit Court Judge, Carlos Bea, wrote that a jury could possibly infer that a competitor had acquired MTM.  (Read more)