Intellectual Property Law Update
Patent
Congress released a draft of proposed patent legislation to address the ongoing problem with Subject Matter Rejections, namely, 101 Rejections. The proposed new patent law proposes that patents should be awarded to: Whoever invents or discovers any useful process, machine, manufacture, or composition of matter, or any useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. The term “useful” is intended to cover any invention or discovery that provides specific and practical utility in any field of technology through human intervention.
Copyright
This week, we see updates to patents, copyrights and trademarks. Sneakers are typically protected with a patent, Yeezy sneakers finally received copyright protection.
After further review, Kayne West’s Yeezy sneakers are in fact protected under copyright law. Typically, shoes are protected as a design patent because shoes are a functional item. Standard copyright practice is to refuse protection for useful goods, this includes useful articles of clothing and shoes. Having submitted two versions of his shoes for copyright protection, the US Copyright Office refused to register the shoes because they were useful goods. A useful article under the Copyright Act is an article that has an “intrinsic utilitarian function” that exists separately from any artistic ornamentation. While copyright protections do not extend to the utilitarian aspects of articles such as clothing or shoes, designs which are identified separately, may be protected.
Under the U.S. Supreme Court’s Star Athletica case, the sneakers if it was determined that the designs could be separated from the sneaker, and the designs were sufficiently original based on the separated shapes and patterns they incorporated. When the Copyright Review Board separated the designs from the sneakers, they determined that the creative and distinctive manner in which the separated lines, stripes and speckles were combined was sufficient to warrant copyright protection when viewed as a whole. Thus the sneakers are protectable as copyrighted works.
Trademark
The U.S. Supreme Court recently ruled that bankrupt trademark licensors cannot use federal bankruptcy law to rescind the rights of their trademark licenses, resolving an longstanding split between different federal courts.
False Advertising
A court took Bud Light to task for its false and deceptive Corn Syrup advertisements. This is response to the adds Bud Light launched during Super Bowl LIII where they highlighting the use of corn syrup in brewing Miller Lite and Coors Light, as compared to Anheuser-Busch’s use of rice in Bud Light. The Court ordered Anheuser-Busch to stop implying Coors or Miller beers contain corn syrup and indicated they could no longer state that Bud Light contains “100% less corn syrup.”
In addition, new legislation is being proposed to curb the practice of video games targeting children for on-line “Loot Box” sales. Loot Boxes are becoming more and more popular, in part, because the video-game makers have developed a revenue model which strongly entices and encourages children into exchanging real world currency for virtual game accessories. The concern seems to be related to protection of children, who presumably aren’t able to make the same critical evaluation when making the purchasing decision necessary to purchase these virtual accessories.
Counterfeiting
Amazon is taking a stronger stance on counterfeiting. A recent program implemented by Amazon, Amazon Project Zero, provides three levels of protection for intellectual property rights holders. Amazon is implementing Automated protections, Self-Service protections and Serialized Product protections. Under the Automated protections, Amazon will scan brand logos, trademarks and other key data about lawful brands and compare with scans of their repository of product listings daily to weed out suspected counterfeits. Under the Self-Service protections, Amazon will provide a counterfeit removal tool to allow lawful brands to remove infringers’ listings without needing to report or wait for Amazon approval. The Serialized Product protection will allow Amazon to confirm the authenticity of products purchased by scanning individual serial numbers on products sold on the platform. Under this option, a seller can ask that Amazon gives each product unit a unique code as a part of the manufacturing process for a fee of between $0.01 and $0.05 per unit.
Right of Publicity
California Senate voted in favor of allowing NCAA College Athletes to earn income off their name, images and likeness.
Data Security
FTC is taking a stronger stance on Data Security. California’s Consumer Privacy Act is getting stronger and more similar to the EU’s GDPR. Many US based companies who have avoided implementing GDPR compliant practices may find themselves needing to based on California’s Privacy Act. In addition, Instagram had a data breach, releasing over 50 million user’s data.