“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

BLOCKING PATENTS CAN MOOT OBJECTIVE INDICIA OF NON-OBVIOUSNESS

In a recent precedential decision, a split Federal Circuit (Judges Dyk and Taranto in the majority, Judge Newman, dissenting) issued a lengthy, 53-page decision, regarding the obviousness doctrine.  Judge Taranto, writing for the majority, engaged in a fact-intensive analysis to determine that a ‘blocking patent’ mooted evidence of objective indicia of non-obviousness and found the patents-in-suit invalid on obviousness grounds.

Acorda owned four patents (the “Acorda patents”) listed in the FDA’s Approved Drug Products with Therapeutic Equivalence Evaluations (“Orange Book”) for Ampyra®, a multiple sclerosis (“MS”) medication containing the active ingredient 4-aminopyridine (“4-AP”).  Importantly, Acorda listed a fifth patent, U.S. Patent Number 5,540,938 (the “Elan patent”), in the Orange Book for Ampyra.  Acorda is the exclusive licensee for the Elan Patent.  The Elan patent predates the Acorda patents and broadly claims administering a sustained-release formulation of 4-AP to individuals with multiple sclerosis.  The Acorda patents further claimed that such a drug must be administered (1) in a 10 mg dose twice a day (2) at that stable dose for the entire treatment period of at least two weeks (3) to achieve 4-AP serum levels of 15–35 ng/ml and (4) to improve walking. Continue Reading

Russian IP Court compelled domain name registrars to remove illegal content reported by trademark holders

On 4 July 2018, Russian IP Court rendered a landmark judgment in case No. A40-132026/2017.

Under the merits of the case, LLC Azbuka Vkusa (trademark holder) sued LLC Registrator R01 (prominent domain registrar) seeking to cease delegation of the disputed domain name. It was apparent that the claimant’s trademark AZBUKA VKUSA was infringed in the domain name azbuka-vkusa-nim.ru and website content.
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Nothing beats a good TM LWYR – Nike’s questionable LDNR campaign

A July 2018 decision of the UK Intellectual Property Enterprise Court (IPEC) appears to have put paid to Nike’s recent “Nothing beats a Londoner” ad campaign. The case highlights, with hindsight, a perhaps regrettable commercial/legal decision by the sports giant, whilst also demonstrating the usefulness of the IPEC as a means of speedy and effective redress in David vs Goliath disputes.

Nike’s campaign, which was built around the “LDNR” brand, launched in January with a short film featuring a number of sports stars and musicians of recognisable London origin. While the campaign generated a good deal of hype, it also caught the attention of modestly-sized apparel company Frank Industry Proprietary Limited (Frank), who held registered UK and EU trade marks for “LNDR” covering goods such as clothing and sportswear. Continue Reading

“Who” Says What’s Fair Use?:

Bloggers naturally desire to write about new developments and new cases.  But, because writing on legal topics is often like pulling snap shots out of a film, there is also sometimes a feeling that one is obliged to return to a previously noted case to report back on the rest of the story (as one might say (if named Paul Harvey)).  So it is today for this blogger, as he reports on the developments in a case that occurred after the previous blog post freeze frame.

While tempted to return to Naruto and the “monkey selfie” case on which we previously commented, we cannot quite tell the rest of that story since there remains in play a motion for rehearing en banc.  By way of update though, we can mention that the United States Court of Appeals in an April 13, 2018 order rejected the parties’ efforts to moot the case, holding that “denying the motion to dismiss and declining to vacate the lower court judgment prevents the parties from manipulating precedent in a way that suits their institutional preferences.”  That Court thereafter found in a 2-1 panel decision on April 23, 2018 that Naruto, a monkey, had constitutional standing under Article III but lacked statutory standing under the Copyright Act.  But on May 25, 2018 an anonymous lone judge on the 9th Circuit has requested rehearing en banc.  Once that motion is ruled on, we can perhaps tell the rest of the story there or, because of recent developments in other fields, combine Naruto with Seuss in the same way that we combined Star Trek and Seuss. Continue Reading

Establishment of Korea’s International Court for International IP Cases


IP cases, by their nature, proceed in more than one country simultaneously.  For instance, the patent lawsuits between Samsung and Apple have occurred at the same time in the courts of more than 10 different countries including Korea, the U.S., Germany, Japan, the Netherlands and Australia.  Because these cases are proceeding simultaneously, IP right holders are often placed in a situation where they have to determine in which country to file their claims, in order to yield the most favorable results. In this regard, courts all around the world attempt proactively to invite IP lawsuits and have been making efforts to provide environments that are suitable for IP litigation on a global scale. Continue Reading

Can You Use Photographs in Design Patent Applications?

Suppose that you have an invention disclosure for a design of an article that you want to protect.  When you review the invention disclosure, you notice that the inventor has only supplied photographs of the design and not any line drawings of the design.  Can you file the design patent application with the photographs?  The answer is YES! if that is the only practicable medium for illustrating the design for the article.

[35 U.S.C.] 171  refers, not to the design of an article, but to the design for an article, and is inclusive of ornamental designs of all kinds including surface ornamentation as well as configuration of goods.” In re Zahn, 617 F.2d 261, 204 U.S.P.Q. 988 (C.C.P.A. 1980).  The subject matter which is claimed is the design embodied in or applied to an article of manufacture (or portion thereof) and not the article itself. Ex parte Cady, 1916 C.D. 62, 232 O.G. 621 (Comm’r Pat. 1916). Continue Reading

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