ebay incorporates IP conscience

I had no idea ebay did this. Makes sense I guess. I found this blog concerning ebay's retraction of someone's item since it could not be authenticated. The fact that ebay can pull any item or listing they wish is a very savvy business policy considering the liabilities they might entail with their global presence. Here, someone was trying to sell shoes on ebay but got their listing pulled because ebay was worried they might be fakes.

With all the fraud that goes on these days it's nice to finally see that someone is looking out for your best interest. Of course, I'm sure this probably arose out of a worry for liability. There must be ceratin types of items that they regularly apply this policy of authentication to. In the body of the blog, one person goes on to say that ebay has a third party which takes on this duty. I'd imagine items that are often faked fall into the category for ebay review like shoes, watches, perfumes, etc. But, I wonder how many of these go unnoticed. I buy regularly on the website and see misrepresentation all the time. I guess it could be worse...
Dave

Gibson vs. Guitar hero

Here's an interesting one. It appears Gibson was just a little off the mark in terms of interpreting customer needs when they filed this patent.
Gibson patent
The invention disclosure in this granted patent has all the intended spirit of the guitar hero game. It involves putting an audio/video headset on, and then playing an actual musical instrument along with music and video playing on the headset. The intended result is a virtual concert experience. This might still have potential as a good product for actual musicians with a little more development and marketing.

Gibson filed an infringement case against Activision, inventors of the famous Guitar hero, claiming that the video game was in direct violation of the patent rights granted to Gibson. The court ended up declaring that there was no infringement since the guitar hero game didn't actually make any noises in and of itself, but rather the digital vido game played the music. If there were no existing claims, perhaps Gibson could have worded their claims a little more broadly to include what the guitar hero game ended up becoming.

History of Intellectual Property...

So I tried to think of something out of the ordinary that was new and unique, but came up with zilch. Then I thought, what about the oldest recorded examples for each type of IP we've talked about in class...here ya go, all via the infamous wikipedia.

Oldest Patent:
In 500 BC, in the Greek city of Sybaris (located in what is now southern Italy), "encouragement was held out to all who should discover any new refinement in luxury, the profits arising from which were secured to the inventor by patent for the space of a year." [22]
Patents in the modern sense originated in 1474, when the Republic of Venice enacted a decree by which new and inventive devices read more...

Oldest copyright:

The concept of copyright originates with the Statute of Anne (1710) in Britain. It established the author of a work as the owner of the right to copy that work and the concept of a fixed term for that copyright. It was created as an act "for the encouragement of learning" read more...

Oldest trademark:

Zildjian, the cymbal and gong company, owns the oldest continuously used U.S. trademark -- it should be noted, however, that the first two hundred years of the use of the Zildjian trademark were in Turkey as the family moved to the United States. Venetian glass blowers are thought of as using the longest continuously used trademarks. Wieliczka, a salt mine in Poland, is reported to be the source of the oldest known trademark (circa 1241 A.D.) -- even though this trademark read more...

History of Trade secrets in a legal context:

Legal development to protecting trade secrets
A relatively recent development in the United States is the adoption of the UTSA, the Uniform Trade Secrets Act, which has been adopted by approximately 45 states as the basis for trade secret law. Another significant development in U.S. law is the Economic Espionage Act of 1996 read more...

One we've talked about in class, but named a little different here in the wiki...trade dress:

Industrial design rights are intellectual property rights that protect the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used read more...

My paper topic...

My topic was intellectual property surrounding human embryonic stem cell research. So maybe this is cheating a little bit, but I ran across some pretty interesting stuff while doing research for my paper. There's such a huge difference between Europe and the United States when it comes to stem cell patentability and, particularly, the ethics surrounding each patent offices positions. The united states basically just relies on precedence for determining whether or not they should allow patents in this field- "case law"-type history drives the majority of the decisions made in the US. However, the EPO takes a much different approach in that they predominantly refer to their choices as a matter of ethics. More interestingly, the end result in what is patentable and what is not is really not that different in either patent offices' jurisdiction. Below are two links describing US and EUR stem cell patent positions:

http://www.ncsl.org/programs/health/genetics/charts.htm

http://www.nottingham.ac.uk/law/StemCellProject/project.report.pdf

On the legislative front, things get even more complicated as most statesin the US, and countries in Europe, have their own unique positions on appropriate laws which regulate this field. Here in north america, the individual states usually have guiding criteria that help steer the legality in the correct moral direction such as source of origin, how long the cells have been allowed to divide, etc. While technically the federal law may allow companies and institutions residing in these states to be granted patents in these areas, it becomes hard to do so if you can't work with them in the first place.

http://www.nature.com/nbt/journal/v25/n4/full/nbt0407-419.html

Dave

Trademark, trade secret, definitely competing...

Here' one I found that seems pretty cut and dried. Check out the second article on this webpage. Most cases kind of make me smile a little bit, but this one is outright criminal behavior on the part of the "alleged" offenders.

http://www.iptrademarkattorney.com/trade_secrets/

Former employees of a company which manufactures valves and other items for various industries went into business for themselves. This article says these two guys secured client lists from their former employer, mailed them to personal email accounts, and started doing business with them. Furthermore, the products they are selling to these companies are obviously intended to look just like the original. The only difference between the two trademarks is a small dash. When either of these two are stamped onto the goods the potential for confusing them is obvious. What's more, the new company name, Kingtech, is darn close to the original company name of Kingston. Thinking they could have been a little more creative here.

Since these two had a no-compete clause signed, the trademark is remarkably similar, the client list was misappropriated (complete with prices paid by customer), their choice of company name is basically the same, and their product was found at their previous employer's customer site, I'm thinking they'll lose this one.

Dave

Hershey's files lawsuit against marijuana dealer

I found this story in ABC news, and I had to post this because it is simply unbelievable.
http://abcnews.go.com/TheLaw/LegalCenter/Story?id=3230431&page=1

Apparently, a marijuana dealer is selling marijuana-laced Hershey’s knock-off candy to medicinal marijuana shops in CA. They were selling such products as “Rasta Reese's, Keef Kat, Puff-A-Mint Pattie and Stoney Ranchers.” The products were packaged to resemble the Hershey’s products, “Reese's Peanut Cups, Kit Kat, York Peppermint Pattie and Jolly Ranchers.”

Hershey’s has filed a suit against the dealer for trademark infringement, trademark dilution, and unfair competition.

As for unfair competition, I do not believe the issue is the likely hood of confusion between the marijuana laced candy and the Hershey’s candy. It is not likely that you will find these in the checkout lane at the grocery store. But, I can definitely see the case for trademark dilution. As the article goes on to define, “Trademark dilution laws forbid the use of a famous trademark in a way that would dampen its uniqueness or harm the mark's reputation.” So I can definitely see how the marijuana tainted products could have a negative connotation for the Hershey trademarks.

I think the Hershey’s has a pretty good case with this. This lawsuit was from 2007, and I tried to find some follow up information, but I was unable to find anything. I was just curious of the outcome.

Google vs. the world

Kinda funny how things have a way of turning around and biting you. One can see in this case the propensity for seeing both sides. Google is making a ton of money off of everyone, but I wouldn't argue that they're taking money away from anyone, probably the opposite, most of these businesses are probably benefiting greatly from the giant searchengine's capability for advertisement.

google vs. world

You can trademark cupcakes??

Ok, maybe it is my pregnancy cravings kicking in, but this story caught my attention.

http://www.reuters.com/article/entertainmentNews/idINIndia-35026520080815

Sprinkles Cupcakes, a Beverly Hills cupcake maker who sells “high-end” pastries, which have become famous by such celebrities as Oprah, is accusing another cupcake company, Famous Cupcakes, for stealing its trademark “Modern Dot” cupcake design. Sprinkles Cupcakes claims that Famous Cupcakes, which has stores in Texas and Arizona, has used its trademark “nested circle design” on their cupcakes and packaging, as well as using the store and website design. In my opinion this is ridiculous, and Sprinkles Cupcakes should have no claim for trademark violation. I am pretty sure that I and every other “soccer mom” have violated this trademark.
Check out the two websites and see for yourself.

http://www.famouscupcakes.com/
http://www.sprinklescupcakes.com/

Alright, now I need a snack.

What can I do if someone under an obligation not to disclose my trade secrets threatens to disclose them?

Injunctive relief is available to prevent the disclosure of trade secret information under the laws of every state. While such action involves retaining an attorney and filing a lawsuit, it is often necessary because once the trade secret is made public, it is much more difficult, if not impossible, to restore the information to trade secret status. In many situations, no amount of money damages can provide just compensation for the value of a trade secret, and very often the person who releases your trade secret to the world will not have sufficient assets to pay a judgment against him for the damage you suffer.

http://law.freeadvice.com/intellectual_property/trade_secrets/disclose_trade_secrets.htm

This is the legal advice given on the above website. If this is the case, how does Coca Cola maintain its trademark secret?

Here's how.. http://www.11alive.com/news/article_news.aspx?storyid=91010

Joya Williams, the now-former Coca-Cola employee accused of trying to sell company secrets to Pepsi, ran into a problem Wednesday at her trial in Atlanta federal court. Coca-Cola's attorneys don't even want her to use her own evidence because it's supposed to be latent with proprietary information.

I guess the gist is.. You're spending so much time and money in court at the risk of literally destroying your own life that it's really not worth it. Oh, not to mention that it convicted of trying to sell trade secrets- you're going to jail for 10 years.

In my opinion, it just doesn't seem worth it.

Finally Starbucks Loses

SEOUL: Starbucks, the world's largest coffee-shop chain, with more than 12,000 stores, has lost a trademark dispute with a South Korean company that sells coffee from roving outlets in trucks.
The Patent Court of Korea dismissed a claim that Elpreya's brand name "Starpreya" should be canceled because of confusion with the U.S. company's name, the court said in a ruling dated Sept. 20 that was posted on its Web site Wednesday.
"We named our brand after Northern Europe's goddess Preya and it has nothing to do with Starbucks," the chairman of Elpreya, Kim Woo Ki, said. The letters of the name of the Norse goddess Freja were changed to ease pronunciation by Koreans, he said.
While the South Korean company's logo is a woman's face within a circle of green, similar to the symbol of Starbucks, the court last year rejected the claim by the Seattle-based retailer that they were too alike

Mcdonalds - WOW

Consider the value of McDonald's logo, the Golden Arches. Any copycat opening a hamburger restaurant using McDonald's colors and the shapes of its trademarked images would surely increase consumer acceptance of its burgers. Trademarks protect a company's colors and shapes, provided that they serve no purpose other than to identify the source of the goods and services. If it can be proven in a court of law that the colors and shapes serve a function - for example if the Golden Arches color became strictly associated with healthy food items with less than 300 calories and no transfat - then that functionality would make the trademark open for challenge by copycats. In the July 28, 2003 edition of The National Law Journal, Jeffrey L. Eichen cites the pink color of Pepto Bismol as a case in point. No trademark is enforceable on Pepto Bismol pink because its color was ruled as soothing to someone with an upset stomach and is therefore functional.
As American basketball player Ariel McDonald found out when he starred in an Israeli commercial for Burger King, copycats need to tread carefully on pretty well McAnything, McAnywhere. In the TV skit, Ariel is allowed to enter a Burger King restaurant only after he removes his basketball shirt labelled with his name McDONALD. The player then appears wearing a jersey bearing the Burger King mark and says "Listen to McDonald: Burger King is the one." McDonald's responded with a commercial of its own, featuring a previously published magazine interview in which player McDonald said that he enjoyed life in Tel Aviv and dined at McDonald's.
The player sued McDonald's for using his name and quotations from the magazine without his authorization. Micky Dee launched a countersuit, arguing that the Burger King commercial infringed on the McDonald's trademark, damaged company goodwill, and constituted both false advertising and unjust enrichment.
Israel's Supreme Court decided in favour of McDonald's. The court ruled that Ariel McDonald's name and statements in the magazine article were freely made and that the world's largest fast-food restaurant chain had a right to use the magazine interview in response to Ariel's comments in the Burger King commercial. And although the player has a right to use his name, it is not an absolute right particularly where one is gaining economic benefit at the expense of a business competitor.
McDonald's brand faced a more anatomical association when an Australian restaurant featured topless wenches serving under the name McTits. McDonald's deep legal resources immediately fired off a cease-and-desist order.
McDonald's is just as tenacious in defending its trademarks in cyberspace. Micky Dee's legal machine successfully shut down the website www.mcmurder.com, citing unauthorized and misleading use of McDonald's trademarks including the Golden Arches logo, the McDonald's mark and the Ronald McDonald character. Although mcmurder.com purports to be a humorous site, McDonald's successfully argued that an unsuspecting consumer wouldn't be able to distinguish the humour in the website's false allegations that McDonald's is systematically murdering people in Los Angeles and New York City on behalf of the United Nations. Big Mac also cited unproven claims of harassment and abuse against the company. The website has been forced to predominantly feature McDonald's legal cease-and-desist order on its home page. That order asserts that while America's First Amendment affords the right to free speech, it doesn't protect the gratuitous and deceptive use of trademarks as mcmurder.com does.
McDonald's has even gone after the Merriam-Webster's Collegiate Dictionary when it included the term McJob, defined as low-paying and dead-end work. No less than McDonald's CEO Jim Cantalupo wrote an open letter to Merriam-Webster, arguing that the term is an inaccurate description of restaurant employment and insults the 12 million workers in the restaurant industry. McDonald's legal team advised Merriam-Webster of impending legal action, pointing out that McJOBS is the trademarked name for McDonald's training program aimed at mentally and physically challenged people.

Blackboard Wins Patent-Infringement Case Against Rival Courseware Provider

A federal jury in Texas ruled this afternoon in favor of Blackboard Inc., the nation’s leading online provider of course-management software, in its patent-infringement lawsuit against Desire2Learn Inc.
Blackboard sued the smaller Canadian-based company in 2006, asserting that it had infringed a patent that the U.S. Patent and Trademark Office had granted Blackboard that year. As a result, the larger company said, Desire2Learn had taken away customers that should have been Blackboard’s.
Desire2Learn, which has its headquarters in Kitchener, Ontario, argued that Blackboard’s patent was invalid and should never have been granted in the first place. Lawyers for the company said that Blackboard officials were aware of similar technology, or what’s known as “prior art,” that existed before it filed its patent application, and that the company had failed to divulge that information to the patent office.
The jury, which began deliberating just before noon on Thursday in the U.S. District Court in Lufkin, Tex., announced its verdict this afternoon. The case has been closely watched by campus-technology officials, many of whom feared that a win by Blackboard could stifle innovation and leave colleges and course-management software providers vulnerable to more legal challenges by Blackboard. —Katherine Mangan

iPhone targeted in patent infringement case

Apple is invloved in yet another patent infringement lawsuit targeted at the iPhone. The plaintiff, EMG Technology, accuses the the company of violating a patent that relates to Internet navigation and Internet Protocol Television (IPTV). The claim involves the presentation of content changed from HTML to XML format, a technology utilized by the iPhone. The patent also allegedly covers technology for manipulating regions of a screen, including zoom and scroll functions that the iPhone uses
Apple has been involved in similar suits, including one filed by Minerva in January that claimed infringement of a patent that described a "mobile entertainment and communication device in a palm-held size housing." A Florida company in 2007 claimed that the iPhone used its patented touch-screen technology, in another case that was presented in the Tyler court.

AP Accuses Artist Shepard Fairey of Copyright Infringement

The artist Shepard Fairey who created the "Hope" image of President Obama used during the presidential campaign, is being accused of copyright infringement by the Associated Press. The AP claim copyright infringement for the use of the photo without permission. Fairey does admit that the photo was used as a basis for his artwork. Fairey went on to create thousands of posters and buttons using the artwork, which has generated an undetermined amount of revenue for the artist. Regardless of the profit made by the artist, it is my opinion that he has not infringed on the copyright held by the AP. He merely used this AP photo as a basis for the artwork he created. Using the photo, he then added his own artistic expression to create the "Hope" image.

Do you think this is copyright infringement, or fair use of the photo for artistic creation?

http://www.breitbart.com/article.php?id=D9652OD01&show_article=1&catnum=8

Spaceballs Animated Series

I checked out the Spaceballs animated show and I noticed that some of the depictions of the characters in the show closely resembled the actual person/character and others did not. Is it my understanding that MGM Television Entertainment Inc. must receive permission from any person/author to use a particular likeness in the show? Therefore, if they do not receive this permission then they are unable to use the exact likeness of the person/character in the show, but they can use a depiction that closely resembles the person/character.

For instance in the episode "Outbreak," the writers obviously were intending to portray Clark Kent getting into the phone booth and transforming into Superman. However, the "Superman" character was not the actual Superman, just a look alike.

So, it is not infringement to use a look alike. Even if the audience perceives the look alike to be the original person/character? I am confused how this is not infringement of the copyright owner or person.

Johnson and Johnson vs. Red Cross - Part 3

The results.. So? Who's the winner and who's the loser?
http://www.jnj.com/connect/news/corporate/20080617_160000

Johnson and Johnson vs Red Cross- Pt 2

So, a judge throws out most of the lawsuit. The fight continues. Is it worth it?

http://articles.latimes.com/2008/may/16/business/fi-redcross16

Johnson and Johnson vs. Red Cross - Part I

This is interesting. Of course when you think of the Johnson and Johnson, you think of the cursive J and J or bandaids - well most people anyway. But the "red cross" is actually licensed by Johnson and Johnson. This big corporation was actually gracious in allowing the non-profit Red Cross to use their trademark. However, the reason for the suit was that the Red Cross has allowed others to use the trademark without permission. So here's the story..

http://www.nytimes.com/2007/08/09/business/09cross.html

I'll apply what I learn from the "trademark" section after I actually read it. :-)

US Patents for "The Zipper"

I've always been curious about who holds a patent for "the zipper" so I decided to do some research about it. My thought was that the zipper is in or on so many things that somebody HAS to be loaded from everybody having to pay to use it.

Wikipedia gave me these patents. But I couldn't view them.

[edit] Patents
25 November 1851 U.S. Patent 8,540 : "Fastening for Garments & c."
29 August 1893 U.S. Patent 504,037 : "Shoe fastening"
29 August 1893 U.S. Patent 504,038 : "Clasp Locker or Unlocker for Shoes"
31 March 1896 U.S. Patent 557,207 : "Fastening for Shoes"
31 March 1896 U.S. Patent 557,208 : "Clasp-Locker for Shoes"
19 April 1913 U.S. Patent 1,060,378 : "Separable fastener"
20 March 1917 U.S. Patent 1,219,881 : "Separable fastener"
22 December 1936 U.S. Patent 2,065,250 : "Slider"

But the story behind "the zipper" is just as fascinating.
http://inventors.about.com/library/weekly/aa082497.htm

But I guess my point in posting this is that the "zipper" as we know it began as something else and evolved through the series of patents into what we now know today basically because of how an inventor chooses to describe their invention through the claims of its usefulness, drawings and specifications.

For example, I would've never thought of a sewing machine as a zipper. But when I think about it, the use of the sewing machine and the zipper as it is known in the present day actually perform the same function - bringing two pieces of fabric together.

Interesting.

So I just finished reading the Patent Section. This was really interesting to me. I thought I had heard that you could patent an idea for something, but I guess I was wrong. From what I read you had to make the invention and show it worked. What i found hard to understand was the nonobviousness clause. Oh nevermind I just read it again and it makes sense. I read it as I couldn't sue someone for copying my invention if it was an obvious change, but I think it really means I can't get a patent for my invention if it is obvious. My mistake. But on this subject, it seems like the author doesn't really get this concept as he seems to quote or cite the article number way more in this section than any other part I have read yet - e.g., "but to qualify as prior art for Article 103, the reference must not fall only within the article 102 catergories...Thus the scope of prior art for obviousmess under Article 103 is restricted in a way that Article 102 prior art...." I don't know just found that section difficult to follow. Another point I found very intersting was the improvements section. The fact that if I use Inventor's product as my base but improve it I can't sell my product without his permission so that we both get royalties. It makes sense, just never thought about that. Inventor should be very happy with me as he is now getting money off of two products - his then my improved one. It seems like Patent law would be a very hard practice. There are many caveats to every clause and it just seems really hard to get a patent or to invent something and not infringe on a patent. The categories explained are just very subjective - like Immoral Inventions - or Obviousness - Subjective? I think so. And one main thing that I saw missing in this chapter - and Spencer maybe you can explain this to me. At work when we have IP information in our notebooks - we have to have these notebook pages witnessed. And from what we are told at work is that since the Patent is based on the first inventor - it is actually based on the date of the witnessing. But I didn't see any reference to witnessing in the book. Can you tell me why? Thanks - Happy Learning

How a Few Popular Tech Products Were Named

Have you ever wondered how popular tech gadgets get their names? These are the products that we are all familiar with, such as Apple’s ipod or the BlackBerry. Creators of these products have the difficult task of deciding on a name that will make the product stand out, but not too much. They also must take precautions to not violate existing trademarks or copyrights. It can be a tricky process, and it is the final important phase of the product development. See the article by Tom Wailgum as he uncovers how several of most popular products of our generation were named. http://www.cio.com/special/slideshows/famous_tech_names/index

Is It Copyright Infringement On Fashion Design To Post Photos From A Fashion Show Online?

This one caught my eye. Designers are suing an online website for infringing on their clothing designs. Hmmm, advertisement or encroachment? I would think the former, but I guess I'm not frenchie in this case. How are these designers losing value or money here on their designs? Is the act of unveiling them at the show considered the "recording" step?

Basic story, website sends photogs to fashion show, where they take pics and later post on website of the fashionable clothes. The french government sided with the designers, the case coming soon to america for real litigation- money. I guess I don't see how the designers can be right in this case. The photographers are clearly capturing an expressive and original record of the clothes that is very different from that of the designer's clothes themselves. Perhaps if the photographers were employed by the designers themselves, then went out and sold the photos on their own I could see infringement of some type.

Dave

Free Software Foundation Files Suit Against Cisco For GPL Violations

This lawsuit was filed in December 2008. As it was stated in PATA 5900 on January 7, 2009 by Spencer, this is a case where the first course of action by the Free Software Foundation was to first bring the copyright violation to the offender's attention (in this case, the offender is Cisco) and request that they stop violating their copyright. This request was originally documented in May 2006.

A brief summary of the story is that the Free Software Foundation came up with some programs that can be distributed and modified by whoever chooses to use it. They are a non-profit organization who's license states specifically that the software that they provide. For-profit organizations can also use and distribute the software, but they must provide the "source code" to enable the users to modify it as is their right through the Free Software Foundation. Discussions were had as early as 2003 to assist Cisco with compliance.

Why would such a large company knowingly continue to infringe on the rights of a non-profit organization?



http://www.fsf.org/news/2008-12-cisco-suit

Kick off !!!!

Just dropping in to say hi and start things off!!
Dave

Welcome

Welcome to the new class blog for PATA 5900 taught by Spencer McIlvaine at Webster University. Only students in this class may post blog entries or leave comments. Everyone else is welcome to read along and hopefully learn something.