When Does “Copying” a Photograph of a Building Constitute Copyright Infringement?

A recent decision from a Pennsylvania federal court underscores that there is generally no copyright protection in an actual building or a skyline of buildings; instead, the protection is in the particular photograph or rendering of the building.

Creating an original depiction of a building or skyline that is not substantially similar to the photograph or rendering may provide protection from liability for copyright infringement. Other federal courts, however, have held that actual use of a pre-existing photograph of a skyline of buildings, or a portion of such a photograph, without the copyright owner’s authorization, may constitute copyright infringement.

Although this alert will discuss copyright issues implicated by use of a photograph of a building or skyline, please note that building owners have also argued that the façade or other distinctive aspect of their building may qualify for trademark protection such that the unauthorized depiction of the building in advertising materials may constitute trademark infringement. This Alert focuses not on potential trademark protection for buildings but, rather, the potential for photographers or artists to seek copyright protection for their photographs or other renderings of a building or buildings together in a skyline. Continue Reading

IP Court restrained to sell and market a generic drug until the patent expiry

On 24 April 2018 the Intellectual Property Court published its Decision in case A41 85807/2016 between Swiss-based Novartis AG and local generic Nativa LLC.

The IP Court’s position in this case may result in an extra defense granted for patent holders against unfair practice of registration of generics drugs until patent expiry.

Under the auspices of the case, in 2008 Novartis obtained the MA for its blockbuster drug Tasigna (INN Nilotinib). In a few years, Nativa obtained the MA for its generic drug Nilotinib-Nativ (same INN) and has put efforts for the launch of the generic drug (in particular, registered the price before the MoH and applied for the reimbursement), regardless of Novartis’ effective patent for Nilotinib.


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ARGOS aggro: UK infringement issues arising from US advertising site

The Court of Appeal for England and Wales was asked to consider a case where 2 companies were using the same name in different territories, both legitimately, but one decided to exploit traffic mistakenly hitting its website by using targeted ads[1]

The dispute involved two businesses who shared the “Argos” name, but on different sides of the Atlantic. Argos Limited (AUK) operates a very well-known catalogue and online UK consumer goods retailer under the “Argos” brand.   Argos Systems Inc. (AUSA) is a US business which provides computer aided manufacturing services for the construction of buildings to customers in North and South America. Each are long-standing businesses who had traded under the same brand in their respective territories without problem.

In 1992 AUSA registered the domain name www.argos.com and it set up a website to promote its American business. Continue Reading

CANNABIS AND CANADA

Recreational cannabis became legal in Canada under the Canadian Cannabis Act on October 17, 2018 and sales have begun. Prior thereto, only medical marijuana was available in Canada.

The Canadian Trademarks Act has not been amended in any way in respect of the sale and promotion of recreational cannabis in Canada. The law regarding registration remains the same for marks for such cannabis products and services, as for other products and services. Many companies have filed trademark applications for trademarks for use in association with recreational cannabis products and services.  They are moving through the usual application process. Continue Reading

Federal Circuit Establishes New Test for Trade-Dress Secondary Meaning

The United States Federal Circuit recently issued a precedential opinion addressing trade dress secondary meaning.  The decision establishes a six-factor test to determine whether trade-dress acquired secondary meaning and clarifies a variety of other, related matters.

Converse appealed a final determination of the International Trade Commission (“ITC”) that Converse’s U.S. trademark number 4,398,753 (“the ‘753 mark”) was invalid.  The ITC also determined that Converse could not establish the existence of common law trademark rights. Continue Reading

Some Important Recent Developments Make Korea Friendlier to Foreign Companies Utilizing the Korean Patent System

Korean Court Makes Efforts to Create a More Patent-Friendly Environment.

Although Korea has been very active in the development of intellectual property, Korea has a reputation for being relatively unfriendly to foreigners utilizing the Korean patent system. Korean courts have been trying to rectify this situation by changing the environment for patent protection and patent litigation.  Specifically, they have implemented an improved discovery process and they have established international panels that will provide more foreigner-friendly patent litigation procedures. Continue Reading

“Liquor Before Beer, You’re In The Clear… Beer Before Wine, You’ll Be Fine,” and So On: “Confusing” Advice For The Reveling Tippler & Registering Trademarks

The relationship of wine, beer, and spirits has often proved complicated and confusing for the tippler, regardless of country.  There are old saws that many repeat, and report on, that say things like “Beer Before Liquor, Never Sicker; Liquor Before Beer, You’re In The Clear” and “Wine Before Beer Leaves You Queer, But Beer Before Wine Leaves You Fine.”  One also hears such advice as one travels, with sayings like “Bier auf Wein, lass das sein; Wein auf Bier, das rat’ ich dir” in Germany (which you can hear here and which I am told essentially means “Beer after wine is to be avoided; wine after beer is advised”), and “sörre bor, jó gyomor, borra sör, meggyötör” in Hungary (which you can also hear here and which has been roughly translated for me as “beer then wine leaves a good stomach; wine then beer leaves it [i.e. the stomach] tormented”), as others are quick to mention. And, of course, there are many, many other bits of drinking doggerel that are a bit difficult to remember and keep straight.   Continue Reading

Sufficiency of Drawings in Design Patent Applications

Suppose that you want to file a design patent application for an article that is three-dimensional.  What views of the article will you need for the design patent application that will be sufficient to support your claim?  The answer is a sufficient number of views to constitute a complete disclosure of the appearance of the design.

35 U.S.C. 112 states

  • The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
  • The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.

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AMENDMENTS TO THE NEW LEGAL FRAMEWORK IN GREECE ABOUT CASH REBATES FOR THE PRODUCTION OF AUDIOVISUAL WORKS

INTRODUCTION

The present article constitutes an amendment of my article “The New Legal Framework in Greece about Cash Rebates for the Production of Audiovisual Works” dated 16.04.2018 (available here), which provided a brief and general outline of the legal framework in Greece about the state aid scheme for the production of audiovisual works in Greece based on the incentive of a cash rebate of a percentage of the eligible costs of the production incurred within the Greek territory.

The present amendment is essential, as the new law 4563/2018 (published in Government’s Gazette vol. Αno. 169/20.09.2018), makes several important changes in order to make the investments in audiovisual works in Greece more attractive. Continue Reading

Street Art, Copyright Infringement, and De Minimis Use

The legal protections afforded to graffiti and “street art” artists have gained increased visibility in recent months. But while street art may be entitled to certain protections under the law, not every use of street art without permission will violate an artist’s rights. A recent decision from the U.S. District Court for the Southern District of New York highlights this, finding that de minimis use of graffiti in a television production without the artist’s permission did not give rise to liability under the Copyright Act.

Legal Protection for Graffiti and Street Art

Graffiti and street art can be protected by the law like any other art form. For example, in a widely publicized decision earlier this year, a federal court in the Eastern District of New York found that street art painted on the famous “5Pointz” in Long Island City, Queens, was entitled to protection under the Visual Artists Rights Act of 1990.

Graffiti and street art may also be protected from infringement under the Copyright Act. The Copyright Act protects “original works of authorship fixed in any tangible medium of expression.” Street art that takes the form of a painted mural can be easily understood to meet this standard. Moreover, even distinctive graffiti-style lettering can, in certain circumstances, be protected under the Copyright Act. Generally, typeface alone will not be entitled to copyright protection. However, at least one court has found that stylized lettering in graffiti art was protectable. Likewise, the court found that a street artist’s choice of color and background imagery could be protectable elements of a graffiti design. Continue Reading

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