Archive for the 'Intellectual Property' CategoryPage 2 of 14

No Thank You: Trademarking Common Phrases

Thanking your customers seems like a pretty important business practice. After all, what business could exist without them? Citigroup Inc. may have a leg up on the competition, because, according to them, their trademark on the phrase “thankyou” prevents other from using “thank you” or even “thanks” in their marks.

Citibank has had the phrase “thankyou” protected through several different trademarks since 2004. It uses the marks as part of a loyalty and rewards program it offers its customers. On June 2, AT&T started using the term “AT&T thanks” as part of its own rewards program. In response, Citibank filed suit. They argue AT&T’s use will confuse Citibank consumers given how long they’ve been using the “thankyou” mark. They say this is especially true because AT&T and Citibank have credit cards that are branded by both companies.

AT&T has responded to this lawsuit, saying “This may come as a surprise to Citigroup, but the law does not allow one company to own the word ‘thanks’ …we’re going to continue to say thanks to our customers.” This statement is a bit ironic, considering that AT&T recently got a trademark on their “Thanks” and “AT&T Thanks” marketing campaigns. However, understanding how trademarks work may clarify their statements a bit.

Trademarking Miss Manners?

Citibank’s lawsuit claims that the AT&T mark infringes their own “thankyou” mark. They are asking the court to put a stop to AT&T’s marketing campaign and order AT&T to pay them an unspecified amount of damages. At first glance, this looks patently ridiculous. The idea of one company controlling the use of something as basic as saying “thank you” seems impossible. However, the legal realities of the situation may surprise you. Thank You 2

Trademarks provide protection to marks and logos with the goal of preventing others from freeriding on the good will you build around a brand. They can be a word, phrase, symbol, or design that identifies the source of goods or services.

To be clear, trademark doesn’t prevent you from using these phrases in your day to day life. Having a trademark on a word or phrase also doesn’t necessarily lock everybody else out of the mark. A trademark is specific to the genre of product you actually make and the places you actually sell or may sell it.  For instance, there are six different companies that have a trademark on the word “trademark.” However, registering a trademark is not the same as having an enforceable trademark. It’s fairly common for trademarks to be taken to court only to be rendered invalid.

Where a competitor uses an exact replica of your mark, there is a pretty open and shut case of trademark infringement so long as you have registered a valid trademark. On the other hand, when two marks are similar, the trademark infringement analysis gets a bit more complicated. The focus becomes how likely it is that people who would buy your products might confuse the alleged infringer’s products for your own. The more similar the marks are in appearance, and the more similar the products the marks are on, the easier it is to establish confusion.

Another important element in a trademark infringement case is the strength and nature of the infringed mark.   The strength of the mark, how well known the mark is, changes how easily somebody might be confused. In analyzing the nature of a mark, the courts look to how creative it is. A mark that is arbitrarily related to the product it is associated with, or has a totally made up name, would receive the strongest level of protection. A mark that suggests the product would receive a lower level of protection, while a mark that describes the product could only receive protection after the public begins associating the mark with the public. Finally, a mark that actual defines the product gets no protection whatsoever.

Common phrases are not outright barred from receiving protection. In fact, they receive the same analysis that any other mark might—looking at whether they are arbitrary, fanciful, descriptive, or generic in relation to the product they are associated with. This being said, after the Boston Marathon bombing in 2014, the USPTO refused to give trademarks to the phrase “Boston Strong.” The thought process behind this was that it was so commonly used in day to day speech, from so many different sources, that the public couldn’t identify the phrase with one business.

Citibank’s Case

In a rewards program, with the goal of thanking customers, “thankyou” is likely descriptive at best. What’s more, while Citibank has used thank you for many years, it seems unlikely that they are what the average consumer associates with the phrase. What’s more, if the phrase “Boston Strong” was so integrated into the public consciousness as to be ineligible for trademark, then the phrase thank you would almost certainly raise the same issues.

Even if the trademark can receive protection, proving confusion seems extremely difficult here. A large part of a trademark infringement claim is establishing that consumers will confused as to the source of goods. The AT&T mark has “AT&T” right in the name, it seems unlikely somebody would think it’s coming out of Citimark.

However, this is not an open and shut case—despite how ridiculous it seems. The fact that Citigroup’s marks are registered gives them a presumption of validity. In other words, it will be AT&T who needs to prove that the “thankyou” marks are invalid. What’s more, the fact that AT&T and Citigroup have done business together—combining their branding on credit cards—could contribute to a consumer being confused.

Frankly, this case is a silly one. However, the fact that the U.S. Trademark and Patent Office has granted Citimark’s trademarks—and that they have used them for so long—makes this more of an uphill battle for AT&T then you would expect. As this case progresses, it has a chance to create case law redefining how trademark deals with especially common phrases.

How the EpiPen Price Hike is Not the Last of Its Kind

In 2015, the head of Turing Pharmaceuticals, Martin Skhreli, became the man that everyone loved to hate. After Turing acquired a patent for Daraprim, an older medication, they increased the price of the drug from $13.50/pill to $750/pill.

In August of 2016, Mylan Pharmaceuticals increased the price of the EpiPen from $56 to over $317. The EpiPen contains vital medication to counteract life-threatening allergic reactions. Soon, the media began to cover stories of parents struggling to afford EpiPens for their children.

After the price hikes, the CEO’s of Turing and Mylan faced heavy criticism. Public outcry demanded the reason for such an outrageous price increase, but the response seemed to be “because we can.” Unsatisfied by the logic, the nation questioned if the laws of the free-market should still apply when it concerns matters of life and death.

Yes, Martin Skhreli was Indicated, But It Was Not Because of the Price Hike

Martin Skhreli, Turing’s CEO, faced charges and was indicted of securities fraud in December 2015. As of September 2016, Skhreli is free on bail until his case heads to court. But his indictment of securities fraud comes from his time as a hedge fund manager and the CEO to a different company. During that time, Skhreli took the money from his company to make up for the money his investors lost in his hedge fund. His criminal charge have nothing to do with the price hike at Turing.

In fact, Skhreli, or any other CEO or company that increases the price of a necessary medication, cannot face criminal charges for the price increase. There is no law that criminalizes a drastic price increase.

It Is Not Illegal to Raise the Price of Drugs, In Fact It’s Good Business

Every discussion about the economy usually relies on the fact that the U.S. economy relies on capitalism. Capitalism can be a difficult concept, but the key point to understand is that a capitalistic economy relies on private ownership and is driven by profit. supreme court generic drugs

Companies like Turing and Mylan that produce life-saving and vital medications can adjust the price to whatever would give them the most profit. If there are no alternatives to the medications supplied by those companies, then they have no competition and can set the drugs at the highest possible price.

This was the case for the price hikes by Turing and Mylan. Where there is a drastic price hike, capitalism says that other companies will create their version to undermine a competitors’ profits.

For Daraprim, the drug created by Turing, other corporations were able to create a generic version which costs only $1 per pill. But for the EpiPen, the price increase applies to the medication sold in the auto-injector and not the actual medication itself. The auto-injector is patented by Mylan.

After Mylan offered a “generic” version at $300 per box instead of $600, the nation was not convinced. To avoid paying such an outrageous price, some users of the EpiPen have resorted to buying the drug in the auto-injector (epinephrine), and injecting it themselves.

But is that the only solution? Do we need to wait until another corporation decides to create a profit?

If We Ask for the Government to Step In, It Will Be a Long Wait

Healthcare seems to be heavily regulated by the U.S. government. But out of all possible aspects of healthcare, the pharmaceutical industry faces the least amount of regulation. In fact, Daraprim and EpiPen are not the only drugs that have increased by over 100%.

In 2002, a drug called “Abilify” entered the market to treat acute psychiatric disorders like schizophrenia. It soon proved to be effective in treating other disorders, but the other treatments were not approved by the Food and Drug Administration (“FDA”). So insurance companies refused to cover the cost for “off-label” use.

Currently, the price of ability without insurance can range from $700 to $1,000 for 30 pills. It was only in 2015 that the FDA approved a generic version of Abilify. For 13 years, patients were spending hundreds and thousands of dollars on a medication that was necessary to their daily function.

In short, what has happened with Turing and Mylan is not something new, and it’s also not something that will go away. Drug companies have been doing this for a long time, and the U.S. government makes no attempt to stop them.

If you feel like drug companies need to be regulated, then 3 out of 4 Americans agree with you. The majority of the nation are beginning to feel like pharmaceutical industries need to be regulated and stopped. It is hard not to want regulation when a person needs to decide between financial ruin to survive a treatable illness, or death. It is time for each citizen to tell lawmakers and the pharmaceutical industry that enough is enough.

Pokémon Go Away: Property Owners Suing Pokémon GO

The phenomenon that is Pokémon GO has swept the nation and the world. However, as this blog has addressed in the past, the way the game works has the potential to draw many different kinds of legal liability.  Less than a month after its release our predictions have come true, the companies behind Pokémon GO—Niantic, the Pokémon Company, and the Nintendo Company—have been slapped with a class action lawsuit.

Pokémon GO is an augmented reality game. Players walk through the real world and find Pokémon that appear in random locations throughout the world.  In order to catch Pokémon, the players must walk within a 40-meter radius of the Pokémon’s GPS location.  The game also includes “PokéStops” and “Pokémon Gyms” which allows players to gather resources or asymmetrically battle other players so long as they are within that 40-meter radius of its location.  Players can even use resources earned in the game to apply a “Lure” to a Pokestop—making Pokémon (and eager players) come to that location.

The lawsuit, brought on behalf of New Jersey personal injury lawyer Jeffrey Marder, alleges that Pokémon GO creates a nuisance and unjustly enriches itself through its use of private property as locations for PokéStops, gyms, and Pokémon without permission from the owners.

The world of augmented reality games is a very new one, and full of new issues of law and fact. Both of the charges of this lawsuit raise new and interesting issues.

A Poké-Nuisance

A nuisance claim requires a showing of an unreasonable, non-physically invasive use of their property where the use substantially interferes with the quiet use and enjoyment of that property.

Non-physical invasions can include things like loud noises, pollution, vibrations, or excessive light. Here, the lawsuit argues that the invasion is the additional foot traffic of players coming to catch Pokémon and use PokéStops, the noise they make, and the occasional gamer walking up to your door and asking if they can come in and catch a Pokémon. Due to the fact that nuisance does not require a physical invasion, the fact that PokéStops only require people to come within a 40-meter radius does not prevent liability.  A PokéStops on or near your property would still suffice, so long as it created an invasion that could be called a nuisance.  So the question is, does this rise to the level of a nuisance? Pokemon Go 3

An invasion needs to fulfill several requirements before it is considered to be a nuisance. First, the invasion must be a foreseeable result of the actions of the person accused of nuisance. In this case, the goal of the PokéStops is to draw as many players as possible into the game.  Thus, it seems clear that people using the PokéStops that you place is foreseeable.  It also seems foreseeable that where a large group gathers around private property, their presence could be noisy and disruptive—although there is some argument as to how much disruption could be predicted.

The invasion must also be substantial—more than the usual noise off the street. This is a tough standard to break down, as it highly fact specific. Whether a specific PokéStop has actually created a nuisance might depend on exactly how many people were drawn to the PokéStop and what they did while they were there.

Finally, the invasion must be unreasonable. In order to determine this, the court looks at several factors—how bad the harm was, how long the harm went on, how hard it would be for the defendant to prevent the harm, and the value of the defendant’s conduct to society.  The balance of harms here would, once again, depend on the exact extent of what happened.  However, it probably wouldn’t take a great deal to outweigh the difficulty of not using these locations and the social benefit of a mobile game.

As it is, the actual harm that has been shown by Mr. Marder is pretty tame—maybe not rising to the level of a true nuisance.  However, augmented reality is new.  There is no case addressing whether placing digital landmarks on or around your property could be—by itself—a non-physical invasion of your property just like smoke or excessive light.

This nuisance case has some question marks moving forward, especially considering it contains never before addressed issues. However, it’s also notable that the lawsuit doesn’t bring a claim for trespass—a similar claim to nuisance but with a physical invasion of the property.  This is probably because any trespass that has taken place was done on the initiative of the players, not Pokémon GO.  Pokémon GO has a trainer guide which advises players to always respect the community and adhere to the rules of the real world.  Their terms of service require players to not violate the legal rights of others.  It’s unlikely that Pokémon GO would be liable for the trespass of their players.

Unjust Enrichment

The lawsuits second charge, unjust enrichment, is one of oldest concepts of law—people shouldn’t be able to unfairly get ahead at the expense of another without compensating the other person.  In order to establish a case for unjust enrichment you need to show just that, along with the fact that equity demands you be repaid for what was taken from you.  This issue is especially important in this lawsuit because it represents the majority of the potential for damages in this case.

The lawsuit argues that by using the private property for their games, they have increased the value of their game. They argue that, because they did not pay or even ask permission for this use, they have been unjustly enriched.

Whether this gives rise to a case for unjust enrichment hinges on one very important question.  A question that has not been addressed by the courts before and will change the future of augmented reality gaming.  Does owning property in “the real world” extend property rights to any digital, location specific, intellectual property elements that may be put on it?  If so, not only does the lawsuit have a strong case for unjust enrichment, it would make augmented reality gaming incredibly expensive to implement.  It would essentially force game developers would limit their games to public areas.

The Pokémon GO Lawsuit Going Forward

The lawsuit has already led to action by Niantic, they’ve issued an update with specific warnings not to trespass built into the game. They’ve also promised to be more transparent with the process of removing PokéStops, a function which has always been available.

It’s not surprising that they’re taking the lawsuit so seriously; the lawsuit seeks damages in excess of $5M—although it is not specific about what, if any, damages Mr. Marder has suffered—and an order preventing Pokémon GO from using private property without permission. An order like that would make it much harder for an augmented reality game to function, especially where nuisance law prevents you from even bringing players into the immediate vicinity of private property.

Augmented reality is new and it’s huge. This isn’t the last case we will see dealing with these issues.  For now, we’ll have to wait and see whether this case will change the landscape of these games forever.

Plagiarism-Who Owns the Rights to Written Material

The 2016 primary presidential campaign is over. In the midst of this, a controversy has arisen in the Republican National Convention speech given by Melania Trump, wife of Republican nominee Donald Trump. The source of controversy is that parts of the speech delivered by the First Lady hopeful were directly pulled from a Michelle Obama Speech given years back at the Democratic National Convention. Many people have been going directly after Melania for plagiarism.

Even school kids should know better than to do such a thing. Of course, how can you blame her when she wasn’t even the one to write the speech? Immediately after this news broke out, the speechwriter responsible for the script apologized and offered her resignation. There are legal implications to this incident, such as who has control over the finished product, or whether such “rights” to these written materials have been transferred over to someone else?

Copyright Law

Plagiarism is more or less an academic term that translates to copyright infringement in the legal context. Any written work, published or not, is guided by copyright law. Copyright law gives copyright protection to the author of the work, or if the author is willing, they can transfer this right to a third party. Even taking snippets of this work can be viewed as copyright infringement. If a lay audience can associate the copied portion from the original text, then there is copyright infringement.

However, as ideas are not protected under copyright law, a concept or theme is fair game. Let’s say, for example, that someone doesn’t want to per se copy the story in the Ian Fleming James Bond novel but would still like to implement the idea of a character that exhibits such traits as James Bond (being suave, lady’s man, having an over-the-top villain to deal with). This is okay. Anyone can use such concepts. However, you can’t directly copy the story itself.

Melania has spoken words that come straight from the Michelle Obama speech. As to whether there is a copyright to the original speech, this is possible but unlikely as copyright requires for the work to be creative. A generic speech letter might not warrant copyright protection. Of course, even if there is a copyright to the speech, it would be the scriptwriter who is the author and not Michelle Obama herself. Melania Trump

One way such writers can ensure protection of their work is through registration of the work with the Copyright Office. However, works do not have to be registered for it to get copyright protection. Copyright registration is essentially an announcement to the world that you have a copyright over this piece, and it is a clear indicator that the work is under legal protection.

The Melania scenario is a rather straightforward one. Regardless of who the copyright holder of the script is, there is blatant copying here. There is no need to decide if there has been copying, because there has been de facto copying. The only issue is whether the copying warrants a copying infringement lawsuit, and if the script meets the requirements of a copyright, then this very well could be the case. It is best that authors register their work and to make sure the speech is as unique as possible. Generic speeches are generally not protected.

Politicians and Ghost Writers

Politicians have a duty to provide honest information to the public. As mentioned before, copyright does not give protection to ideology. If President Obama expresses a certain viewpoint on domestic policy, this does not prevent another to come forth and present the same viewpoint. Ideas warrant no protection under intellectual property laws. And furthermore, an oral statement by itself, no matter how original or creative, does not warrant copyright protection.

Under copyright law, the work has to be “fixed,” meaning that it is available in some tangible form, before it can be given any form of protection. An oral statement by itself is not protected. An oral statement that comes from a script is. Politicians would be wise to choose their staff wisely and to make sure that every member of their staff is aware of intellectual property rights, especially so if they plan on making a public announcement that is based off a script.

As for ghost writers, they can have copyright protection over their work as well. Ghost writers are those writers who actually write the work but the credit is given to someone else. It is said that even Shakespeare himself had a ghost writer who was responsible for putting together his plays. Ghost writers may receive copyright protection over their work because even though the work is accredited to someone else, it is they who authored the work.

Of course, they can always transfer their rights to a third party, in other words, the person listed as the author. You can transfer rights by way of a license or through an assignment. The difference being that a license is usually a nonexclusive and temporary transfer of rights whereas to assign a right is to permanently give up all ownership rights to the work. Depending on the circumstances, one might be better than the other.

Ghost writers are usually left in the dark because when licenses are not set between the involved parties, publishers intervene and stake a claim to the work. For example, let’s say that I write a book but I let someone else take credit for it. However, a publishing company such as Penguin Classic might come in and offer a deal to the person who is listed as the author. This is bad news for me because the publishing company will try to obtain rights to the work.

In general, it is the publishers that end up with ownership over the work. The author (or rather the person listed as author) will either permanently transfer all rights to the publisher or will have some license agreement in place in which the author will receive royalties but ownership rights will be held by publisher. In any event, this leaves the ghost writer in the dust. Ghost writers, if they care enough for the work, should take extra measures to ensure that there is a license agreement with the third party that will ensure that the rights to the work stay with them.

Ultimately, there are no clear-cut answer to issues such as this. Copyright governs works like these and it is primarily through licenses and contracts where we can hope to establish ground rules with regards to ownership. Tighter restrictions will prevent incidents such as that brought on by the Trump campaign from occurring, but that was just a blunder that should never have happened.

Pokémon Go and the Dangers That Come With It

It looks like Pokémon is back at it again. Pokémon Go, the latest product in the Pokémon franchise, has caught on like wildfire. This new app, developed by Niantic, brings a fresh perspective to gaming. Available on both iOS and Android devices, this mobile game allows players to catch Pokémon but must do so in real time. With GPS capability, the app pinpoints where Pokémon can be found and the player then must make the effort to actually go to these locations.

Once there, the player can then attempt to catch the Pokémon. These Pokémon can be found in various locations, from your backyard to public venues and even in government facilities such as courthouses. As this game takes the world by storm, the dangers of this form of gaming have become more apparent. Just as texting and driving has been such a big problem, the same issue could arise with this new app.

Potential Hazards

The Pokemon app demands that the player explore the outdoors if they want to catch Pokemon. Irrespective of this game, mobile devices can be dangerous. Texting and driving has been one of the leading causes of death in the past few years. Pedestrians too have put themselves in risk of danger by crossing the street carelessly while being preoccupied with their smart devices.

Surely, this Pokémon app could pose similar dangers. The game has been out for less than two weeks and there are already news reports of such accidents. One victim reported that he was “wandering aimlessly looking for Pokémon” when a car clipped him. As the game picks up speed, similar reports will undoubtedly come in. Now the question becomes, what can be done about this? Pokemon Go 2

To address this issue, let’s look back at some of the solutions that were reached when it came to driving and texting. For one, California imposed a law that would fine people who were driving and texting. Without a doubt, this has had deterrent effects. Looking at the accident reports as a whole, the numbers have waned due to this law. Can a law be enacted mandating that gamers not cross the street while playing Go?

Now this sounds silly but there have to be some measures that can be taken. Obviously the same aforementioned law applies here because the Go is a mobile game and as such, is on a mobile device. Ultimately, the question becomes what measures can be taken to prevent such incidents from happening and who should be held responsible for them?

Comparative Negligence

The gamer should obviously be held responsible for being careless and negligent. Of course, the degree of blame should also depend on who the gamer is and in particular, how old they may be.

If a 12-year-old has carelessly walked into the street, then they might not have known any better. Now, if it was a fully grown adult doing the same, then this could change things. Comparative negligence, which is the standard of fault in California, adjusts the degree of fault for all the parties involved, depending on the circumstances of the case. This standard applies primarily to personal injury lawsuits. For example, if the gamer is crossing the street when he should have stopped, then the driver who hits this person will not be entirely at fault for the accident.

The point being, if more states adopted this comparative negligence approach, it would make life a whole lot easier for both parties involved in the accident. It also provides a deterrent. The gamer so preoccupied with catching his Pokémon will stop and think because now he knows under this framework, he would potentially have to pay for his own injuries if he isn’t careful. At the same time, the driver will have a defense, which is that the Pokémon devotee was being rather careless.

Trespass

Now this comparative negligence approach is not universal in that it does not apply to all incidents. It applies mainly to personal injury lawsuits. For example, what would happen if the player finds himself in someone else’s private property and the property owner decides to take matters into his own hands? How should this be resolved? Obviously not through the comparative negligence standard.

Each state has its own particular set of laws with regards to gun control and what trespass dictates. These sets of laws will help guide the well-being of people. For now, we will just have to wait and see what our legislators will do in response to this new groundbreaking form of entertainment. This only feels like the beginning. With virtual reality and this “augmented” reality taking shape, who knows which direction we’ll be headed from both a lifestyle perspective as well as a legal one. For now, enjoy and make sure you catch as many lovable Pokémon as you can. Safety first though.

Other Legal Considerations

As mentioned, Pokémon Go is sending ripples through the legal space. Besides personal injury, other areas of the legal field that are facing questions due to the Go are in privacy and intellectual property. In terms of privacy, it is a question of how to protect individual privacy. Go collects account information, location data, and other such data collected through web beacons and cookies.

There are also certain privacy issues at play here. How far can Niantic go in acquiring such data and what can they use this data for other than the game itself? There are intellectual property issues as well. Does catching a Pokémon make that Pokémon your personal intellectual property? This is a bit absurd but it is questions like this that have been coming up. In the meantime, we are left to ponder how this new gadget is changing the legal landscape.



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