Monthly Archives: October 2013

Trademark Disputes “Brewing” in Craft Beer Industry

Is the craft brewing industry the next industry to be taken over by intellectual property disputes? While the pace of litigation will likely never eclipse the software industry, trademark infringement suits are increasingly common among craft brewers.

Most recently, Michigan-based Brewery Vivant sent a cease and desist letter to Tired Hands Brewing Company of Pennsylvania over two ales called “Farmhand.” Brewery Vivant, which holds the trademark to the name, is demanding that the brewer stop using the name. Given the name recognition of its own beer and the costs to rename it, Tired Hands is resisting the request.

The trademark disputes are not limited to beer names. Earlier this year, West Sixth Brewing of Kentucky and Magic Hat Brewing of Vermont settled a suit over what Magic Hat contended was a “confusingly similar logo.” West Sixth ultimately agreed to make changes to its logo, which included removing a star and the word “company.” Also, this year, a Brooklyn brewery was also forced to change its name from Narwhal Brewery to Finback Brewery after Sierra Nevada raised concerns that it was too similar to its Narwhal Imperial Stout ale.

The rise of trademark infringement lawsuits reflects the rapid growth of the craft brewing industry. There are currently more than 2,500 operating breweries in the United States, compared to just 89 thirty years ago.

As a result, craft brewing companies must flex their creative muscle when creating logos, company names, and monikers for their concoctions. This also involves conducting due diligence to make sure they are not already used in the beer industry. If your name is confusingly similar to a product already on the market, you could be forced to change the name or face a costly trademark infringement suit.

If you need any help with Intellectual Property issues, from filing a patent, trademark or copyright, or just need advice regarding how best to protect your inventions, ideas or your brand, please contact me at 1-855-UR IDEAS (1-855-874-3327). Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.

New Report Highlights Growth of Design Patents

If nothing else, the epic patent battle between Apple Inc. and Samsung Electronics Co. has brought increased attention to the value of design patents. According to the Intellectual Property Owner’s Association (IPO) recent report on worldwide patent trends, design patent grants and applications both continue to increase.

In total, the IPO’s 2013 IP Record revealed that 658 more design patents were filed in 2012 than in 2011

While design patents still lag behind their utility patent peers in terms of popularity, they provide a number of benefits for inventors, particularly when seeking to protect the unique appearance of an item. A “design patent” protects the way an article looks, as opposed to how it is used or how it works. The specific subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation.

The recent growth in applications for design patents spans different industries. While Apple and Samsung were among the top design patent recipients, other companies making the top ten list include Procter & Gamble, LG, Toyota, Philips, and Nike. Overall, the fifty companies on the IPO’s list of the top 50 U.S. design patent grantees for 2012 obtained 150 more design patents than the top 50 companies of 2011.

If you need any help with Intellectual Property issues or advice regarding how best to protect your inventions, ideas or your brand, please contact me at 1-855-UR IDEAS (1-855-874-3327)Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.

Is “Ungoogleable” a Word?

Astronomy and Law

Google fiercely guards how its trademark is used. So, it isn’t surprising that the company recently asked the Swedish Language Council to remove the word “ogooglebar” from its list of new words for 2012. The term translates to “ungoogleable” in English and is defined as “something that cannot be found with any search engine.”

As Google seems to be acutely aware, and so should you, a trademark owner can lose its federal registration if the mark loses its distinctiveness and becomes synonymous with a generic product or service. For instance, the Otis Elevator Company lost its trademark registration for “elevator” after the term become generic. Zipper, originally a trademark of B.F. Goodrich, suffered a similar fate along with aspirin.

To maintain the distinctiveness of its mark, Google also discourages the use of the term “googling” in reference to web searches. In a 2006 blog post, the company wrote: “While we’re pleased…

View original post 265 more words

Future Direction For Copyright Pools

With the recent focus on copyright policy by the Obama Administration, it is clear that copyrights will gain an even higher significance as a component of American intellectual property. The Department of Commerce recently released a green paper, entitled Copyright Policy, Creativity, and Innovation in the Digital Economy, which is intended to advance discussion on copyright policy issues.

Copyright subject matter covers a very broad swath of industries and subject matter (sculptures, jewelry, graphics, music, audiovisual works, printed materials, computer programs, etc.). It is especially important for nations that create a lot of products. Copyrights come into being by virtue of creation of the copyrightable works in tangible media, and no registration is required (although an application to register the copyright for American sourced works before suit can be brought to enforce the copyright). Rights can last for a century or more.  U.S. Copyright registrations are easy to get and inexpensive to obtain.

However, because recovery on any individual copyright might be small, there is much less news about high stakes copyright litigation. That argues for the formation of large-scale copyright pools for enforcement and licensing purposes. The advantage of scale would lower the marginal cost of enforcement and licensing, and in turn augment the value of individual copyrights.

But as the recent decision in Righthaven LLC v. Wayne Hoehn shows, transfer of rights to form such pools must be genuine and cannot involve sham transfers of only the right to enforce.

Righthaven LLC was the brainchild of a lawyer. The company identifies copyright infringements on behalf of third parties and, after receiving “limited, revocable assignment[s]” of those copyrights, sues the infringers.  The pool of copyrights on newspaper articles was based on “copyright assignments” calling the company the copyright owner.  But the original owner retained ‘the unfettered and exclusive ability’ to exploit the copyrights. Righthaven also had ‘no right or license’ to exploit the work or participate in any royalties associated with the exploitation of the work.

The Ninth Circuit Court of Appeals found that merely calling someone a copyright owner does not make it so. As the panel further explained, “the contract evinced not just an intent that Righthaven receive whatever rights were necessary for it to sue, but also an intent that Stephens Media retained complete control over all exclusive rights. The problem is not that the district court did not read the contract in accordance with the parties’ intent; the problem is that what the parties intended was invalid under the Copyright Act.”

In other nations that have a lot of manufacturing and thus generate many copyrights each year, the Righthaven case should provide some guidance on what is necessary to form legitimate pools of copyrights for enforcement and licensing.

If you need any help with Intellectual Property issues, from filing a patent, trademark or copyright, or just need advice regarding how best to protect your inventions, ideas or your brand, please contact me at 1-855-UR IDEAS (1-855-874-3327). Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.

Who Are the World’s Top Innovators?

worldglobeCornell University, INSEAD, and the World Intellectual Property Organization (WIPO) recently released the Global Innovation Index 2013. After falling out of the top five last year, the United States has reestablished itself among global leaders in innovation.

The report, published since 2007, examines 142 economies around the world, using 84 indicators including the quality of top universities, availability of microfinance, and venture capital deals. It takes into account both innovation capabilities and measurable results. The United States was last in the GII top 5 in 2009, when it was number one.

Below are the 2013 rankings, along with last year’s positions: 

  1. Switzerland (Number 1 in 2012)
  2. Sweden (2)
  3. United Kingdom (5)
  4. Netherlands (6)
  5. United States of America (10)
  6. Finland (4)
  7. Hong Kong (China) (8)
  8. Singapore (3)
  9. Denmark (7)
  10. Ireland (9)

While the top-ranking countries are largely high-income, the report highlights that several middle- and low-income countries — including China, Costa Rica, India, and Senegal — are making great strides and outpacing their peers. The researchers also found that research and development spending levels exceeded 2008 levels in most countries and successful local hubs are thriving.

“The results of the GII provide testimony to the global nature of innovation today. The top 25 ranked countries on the GII are a mix of nations from across the world – North America, Europe, Asia, Oceania and the Middle East. While high-income economies dominate the list, several new players have increased their innovation capabilities and outputs,” stressed Mr. Soumitra Dutta, co-editor of the report and Anne and Elmer Lindseth Dean, Samuel Curtis Johnson Graduate School of Management, Cornell University.

If you need any help with Intellectual Property issues or advice regarding how best to protect your inventions, ideas or your brand, please contact me at 1-855-UR IDEAS (1-855-874-3327)Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.

Music Playlists Are the Latest Battleground in Digital Copyright Law

As the United States works to modernize its copyright laws, another novel digital copyright issue has popped up in the United Kingdom. Music label Ministry of Sound alleges that Spotify committed copyright infringement by allowing users to create playlists that mirror Ministry of Sound’s compilation albums.

As reported by the Guardian, the suit seeks an injunction requiring the streaming music service to remove the offending playlists and prevent the creation of future playlists that infringe the music label’s copyrights. It also seeks monetary damages.

Spotify holds licenses to stream all of the songs on the playlists in dispute. The issue is whether the order of the songs can be protected under UK law. “What we do is a lot more than putting playlists together: a lot of research goes into creating our compilation albums, and the intellectual property involved in that. It’s not appropriate for someone to just cut and paste them,” said Ministry of Sound CEO Lohan Presencer.

In the United States, compilations can be protected under the Copyright Act. To qualify, a work must be formed by the “collection and assembling of preexisting materials or of data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship.”

Thus, not all compilations qualify for copyright protection. As explained by the U.S. Patent and Trademark Office, “When the collecting of the preexisting material that makes up the compilation is a purely mechanical task with no element of original selection, coordination, or arrangement, such as a white-pages telephone directory, copyright protection for the compilation is not available.”

The Spotify lawsuit is an interesting copyright test case for online play lists. Under UK law, the primary question will also be whether Ministry of Sound’s song orders are original enough to warrant copyright protection.

If you need any help with Intellectual Property issues or advice regarding how best to protect your inventions, ideas or your brand, please contact me at 1-855-UR IDEAS (1-855-874-3327)Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.