Experience Hendrix, a subsidiary of Janie Handrix, who owns the rights to all the entire estate of the guitarist and most famous brother Jimi, sued Leon Hendrix and his partner Pitsicalis for breach of copyright and trademark. In fact, Leon and Pitsicalis would illegally used some of the many Experience’s trademarks (the signature and the images of the face and bust of Jimi) to trade marijuana cigarettes and alcoholic beverages. But the battles for the commercial use of the Jimi’s name are going back in time. In 2015, the Washington District Court had ruled on the matter, forbidding Leon and Pitsicalis to use images of the musician. In addition, in January 2017, the District Court of Georgia declared illegal the use of the words "Jimi" and "Hendrix" on their websites, social media and online platforms. The lawsuit filed in March 2017 in front of the Court of New York by the Experience Hendrix declared illegal, for infringement, also the use of the name "Purple Haze" in the sale of marijuna cigarettes and T-shirts. Purple Haze, in fact, is a song written in 1967 by Jimi Handrix. Experience Hendrix has requested injunctive relief, the elimination from the market of goods violating the trademark’s right and the relatives damages. On the other hand, Thomas Osinski, Pitsicalis and Leon Hendrix’s lawyer, said that "Experience Hendrix has long known long of my clients’ products and it brings this suit only to tarnish and interfere with the lawful and correct Leon’s businesses, which respects Jimi Hendrix’s legacy." Furthermore, Osinski, regarding the content of the claim, said that, although previous rulings have excluded Leon Hendrix and his family from Jimi’s music catalog and denied the possibility to use the trademarks created by Experience Hendrix, nothing prevents Leon and his partner to sell other merchandise Hendrix-related. Who knows how the Court will fix this new family dispute.
How can you protect the concept of an Art Exhibition?
A recent ruling of the Supreme Court held that an exposition may be considered an intellectual work and, thus, it can be protected by copyright. Therefore, moral and economic rights can be recognised to curators or the organizers. The realization of an exhibition may be the expression of a creative idea: on the one side you protect the concept, that is the originality of the theme, on the other side, you protect the project, ie the creative operation that precedes the actual preparation. In this sense, the exhibits are the result of a complex and expensive process of planning and organization, which deserves to be protected.
The case submitted to the Italian Supreme Court concerned a TV report released by RAI SAT, which, presenting an exhibition, didn’t respected its content, violating the economic rights recognized by law to the authors of the work. It was ascertained the creativity of the TV show, as necessary element of a copyright. In other cases, the Italian courts had rejected requests for declaration and protection of a copyright because there were no evidence that the objects of the exhibition had been arranged in an original way. In some cases, moreover, the judges have gone further and have expanded the protection to entire museums. It's what happened in Paris when in 2006 the Courts have recognized the quality of "work of genius" at the Museum of Cinema Henri Langlois.
Although Italian Case Law seems to agree in granting protection to exhibitions, it seems harder lead the case to a legal institution provided by the legislator. In our legal system, protection of copyright is guaranteed by the provisions of law n. 633 of 1941, which includes all the works belonging to “literature, music, visual arts, architecture, theatre, cinematography, ..., as well as databases that, for the selection or arrangement of their contents, constitute own intellectual creation”. With an interpretative effort the exhibition could be considered as a database, since it is a "collection of works, data or other materials, arranged in a systematic or methodical way” (article 2, subparagraph 9, l 633/41). Or, you may include the exhibition within Article 4 of Law 633 of 1941, which recognises as intellectual works also derivative works, i.e. "the creative processing itself, such as translation into another language, transformations into any other literary or artistic form, modifications and additions constituting a substantial makeover of the original work, adaptations and abridgments which do not constitute an original work ".
In both cases, an essential condition for the existence of a copyright for shows and exhibitions is the originality and creativity of the intellectual work.
Cavalli vs Cavalli
The court of Catania has sentenced Roberto Cavalli to pay the costs of proceedings in the trial against Mrs. Luciana Cavalli, a craftswoman, producer of shoes in Sicily.
The famous Florentine designer, six years ago, had sued his namesake for the misuse of“Cavalli” brand.
It doesn’t matter thatthe Sicilian designer’s surname is actually Cavalli and that her brand exists even before Mr. Robert’s: in his opinion, this name is used out of turn and it represents a case of unfair competition. This is why Roberto Cavalli asked the judge to ascertain an economic damage against his company and to establish a compensation, calculated in 10,000 Euros per day of use, under Article 2600 of Italian Civil Code.
But the Court has rejected the requests made by the complainant and, as Luciana Cavalli’s lawyer says, the judge has awarded the good faith and the continuous use of the trademark “Cavalli” by the manufacturer of shoes and accessories. Thus, Mrs. Cavalli won’t withdrawn her name from the market and she will be able to continue her production of leather goods “made in Italy”.
The Sicilian judgement is at odds with what was stated by the Supreme Court about Fiorucci. In that case, the Court judged unlawful the use of the brand Love Therapy by Elio Fiorucci by Mr. Fiorucci himself, because the famous trademark had been sold to a Japanese holding. That time, it was ruled that the use of the name, even if his own name, it’s not legal if it is a patronymic mark owned by third parties. It can happen, the Court explained, that a coupling effect is generated and that this leads to confusion about the more renowned trademark.
"Made in Italy" as a collective National Trademark
Recently Italian manufacturers have been talking about the creation of a "Made in Italy" brand, which would ensure the Italian character of the production process, based national on raw materials.
The draft of a "Voluntary Conformity Certification of Italian Origin and Specialities” is ambitious and it aims to increase the attractive power of Italy’s national supply chain, as a brand system that enhances products, production and domestic supply of goods and services.
The initiative has been put forward by Conflavoro, who has entered into an agreement with the worldwide agency for certifications Lloyd's Register, which has the power to issue certifications. The protection and certification mechanism is subject to a double control: one of an Internal Supervisory Body, set up by Conflavoro and the other is a Scientific and Technical Committee for the Address and the Development of Single National Brand, compose of external experts in the field of world business, universities and consumer associations.
In particular, the food market seems the most interested in this project. Indeed, the single brand would be affixed on food products’ packaging and would ensure not only protection against counterfeiting system, but also a response to the increasingly stringent demands of consumers in terms of quality and safety of food and beverage.
Thus, the "Made in Italy" would become a sign of authenticity and traceability of Italian products and, if possible, also a symbol of innovation that coordinates taste and genuineness.
Marylin Monroe: a Registered Trademark
On 9 November 2016, The Estate of Marilyn Monroe has sued an apparel company of New York for having illegally used the “Marilyn Monroe” trademark by using the image of the famous star.
The Marilyn Monroe Estate registered at PTO (The United States Patent & Trademark Office) its own exclusive property on Marilyn’s identity, image, name and likeness and also the right to grant licenses to third-parties.
Thus the Monroe Estate owns and manages Marilyn Monroe trademark, which continuously for over thirty years was used in the market. This circumstance makes the trademark incontestable, providing it greater guarantees of protection.
For these reasons, the Monroe Estate demanded a jury trial for detecting infringements laid down by Lanham Act, 15 U.S.C. 1051 ss, New York Statutory and common law, and a compensation for damage, in terms of trademark infringement, trademark dilution and unfair competition.
No matter, therefore, that the name of Marilyn actually has not been used commercially by the defendant company: the image of the most famous diva of all time, when used as distinctive mark, falls within the “Monroe Rights”, owned by plaintiff.
More specifically, as it follows from a previous court rulling*, it’s necessary to distinguish the infringement of trademark exploitation’s rights from the image exploitation’s right. Only in the first case, indeed, law requires that the consumer is induced to believe that the use of the brand has been authorized by the owner.
On this point, Monroe Estate stated that a confusion, among consumers and retailers, occurred: in fact, many have contacted the company believing that defendant’s products had been approved, authorized or sponsored by the company which owns the trademark.
In this specific case, therefore, while it might be difficult, or even impossible, to establish an infringement of the mark, because the mark has not been used, Article 1125(a) 15 U.S.C. gives actor wide powers to bring a legitimate request.
In fact, the US federal trademark law is intended to protect consumers. If there is a confusion in the audience, there should be a likelihood of confusion, which is the case traceable to article 1125 (a) U.S.C.
The existence of actual confusion coupled with a registered trademark should ensure the implementation of the rule, guaranteeing Monroe Estate the acceptance of requests .
The Court of Torino on the First Sale Doctrine
The Court of Torino lately has applied the First Sale Doctrine, which limits the exclusive right of an IPR holder in the market. In trademark law, this same doctrine enables reselling of trademarked products after the trademark holder put the products on the market.
The case concerned the preventive requests proposed by a company operating on the cosmetics market. The firm aimed to inhibit the use of the company’s brand and the marketing of products by some assignees.
Italian law states that the exclusive right exercised by IPR holder on a product runs out at its first placing on the market and thus the right holder can not oppose following commercialization.
The rationale behind this rule, as the judge said, is to prevent brand owner to influence market trends of products covered by trade mark.
The only exception to this rule is the occurrence of unfair commercial practices carried out by dealers, who can arrange terms of sale detrimental for brand prestige. This type of practices can also lead to a drawback in terms of attractiveness and economic value of the product.
Except in these cases, all those who are entitled to use the trade mark and to distribute relative products shouldn’t be impeded in their business, either for the selling price or for the sales system.
Therefore restrictions against distributors, relating to e-commerce sales and the application of discounts on the price, would be improper and unjustified.
According to the Court these sales condition don’t constitute a per se discredit practices.
Are Websites Responsible for Readers' posts?
The website manager, even if he is not a professional, is responsible for the comments posted by readers in his page, including those signed, and thus he can be sued for defamation. This is what has been determined for the first time in a decision published few days ago by the Supreme Court.
The case involves Carlo Tavecchio, president of the FIGC (Italian Football Federation), who has been vilified by a comment published in 2009 on a website, “Agenziacalcio.it”, which, due to this matter, has been obscured. The author of the comment called Mr. Tavecchio as a “emeritus scoundrel” and a “convicted felon”, attaching the relevant criminal record.
At first instance, the operator was acquitted, then convicted on appeal and now the Supreme Court confirmes: he will have to pay to Mr. Tavecchio 6.000 euro, for conspiring in defamation.
According to the Court, there is a complicity by the website’s manager because he should have known it, as its author had sent him an e-mail containing that record. The defendant, instead, claims that he became aware of the libelous comment once the police notified him the seizure.
This ruling surprises because jurisprudence appeared to follow another direction: the European Court of Justice considers managers not responsible even for anonymous comments.
Last November Msssimiliano Tonelli, founder and manager of “Cartellopoli”, a website concerning Rome's decay, was cleared. In the first degree, the man was sentenced to nine months of prison for instigation to crime with regard to some anonymous comments.
The previous interpretation, which, in 2014, has led to the conviction of the manager of Nuovocadore.it, seemed dropped.
Now, for the first time, the Court goes deeper and adopts a different point of view. Website mangers are all warned. Actually not only them, but all users. Whereas anyone can manage a website or another virtual space, with their (sometimes dangerous) own comments.
Apple Looses fight for Apple Watch Trademark registration in China.
Apple Inc. has lost a second bid to register a trademark for its Apple Watch in China. According to a ruling from Beijing's Intellectual Property Court on Thursday, the design at issue – which consists of a square assortment of apps visible on the Apple Watch's interface – looks too much like a generic home screen seen on many smartphones and watches to enjoy trademark protection.
In rejecting Apple's appeal of a previous ruling from the Chinese trademark body, Beijing's Intellectual Property Court said the tech giant's trademark is "overly complicated" and lacks trademark features. As you may know, in order for a “word, name, symbol, or design (including logos, colors, sounds, product configurations, etc.), or any combination thereof” to function as a trademark, it must be used in commerce to identify and distinguish the goods of one brand from those of another. The court held that instead of serving to alert consumers to the fact that the watch is an Apple product, the general public would most likely view the proposed trademark as an image of the watch's home screen.
In November 2014, Apple applied to register four trademarks in China, for products including the Apple Watch and accessories. This March, the Trademark Appraisal Committee (“TAC”) of the General Administration for Industry and Commerce rejected Apple’s requests, stating that the seemingly complex designs lack marked features valid to be registered as trademarks. Apple appealed the ruling by way of a suit in front of the Beijing IP Court, claiming that the trademarks have been widely used and advertised on the home screen of the Apple Watch, and have earned enough public recognition for consumers to distinguish Apple’s products from other brands.
In short: Apple made an argument that even though its proposed mark is not inherently distinctive (or able – upon being used the very first time – to communicate to the consumer that the mark is identifying the source of the product as opposed to describing the product itself), it has acquired secondary meaning in the minds of consumers, and therefore, should be subject to trademark protection.
How is Blockchain Technology going to change the Legal Industry?
Blockchain is a public ledger which can be applied to almost anything that you would normally save to a database or spreadsheet.
Fundamentally, blockchain is a program from which to build a system of accounting or process. One network called Ethereum, which has been described as a “decentralized virtual machine that can execute peer-to-peer contracts” is leading the charge with smart contracts and the law.
Creation of contracts
The blockchain could alter the landscape of contract attorneys. Part of what makes the blockchain so special is that not only does it keep records which are immutable, it also creates a process around that.
For example, I could create a contract which stipulates that when my patent was approved by the Patent and Trademark Office (PTO), my four partners would receive a 10 percent share in my company. How would that work? The contract on the blockchain would check to see if the patent was approved, then trigger a process releasing the shares to the partners.
All of this would be automated and fall outside of human legal action. Indeed, you could go one step further and tie in a payment system so that when that patent was granted, bonus funds could be dispersed automatically into the accounts of said partners.
Intellectual property
If blockchain is ripe for anything, it is IP. This technology creates a publicly accessible, indisputable ledger of each filing which could be held not solely by jurisdiction but on a global scale benefiting everyone.
This information would offer clean and clear rights of use for all parties. You could even submit your trademark through the system. Leveraging an algorithm identifying any likeness to the trademark, the system could then grant or dismiss it. All of which would become part of the public ledger for anyone to review.
Land registry
Wealth is created through ownership, and one of the most challenging aspects of developing countries is determining who owns a piece of land. Disputes often occur because of corrupt governments or individuals taking advantage of the under-educated.
Having a public blockchain ledger would allow for everyone to be aware of who owns which parcel of land; and it would make the exchange of those plots much easier and more equitable.
If a family were to buy a plot of land that could be registered on the legal blockchain, it would be much more verifiable than even perhaps government records. All parties would be able to authenticate this as compared to one entity (the government) holding onto all the records. This process would even create a better base for the government to fairly tax individuals and businesses.
Some Latin American countries are beginning to use blockchain as a means to keep track of who owns which land deeds.
Establishing records
In some African countries they are looking at using blockchain technology to keep census information. Voter records could also be added to this process as a means to have a central repository of eligible citizens. In this area, which is currently under development, blockchain seems primed for tremendous growth.
Financial service industry
The banking industry also is jumping into this arena. The theory is that our stock exchanges will become blockchain-enabled. The idea is simply that every stock bought or sold would be on the ledger. You could trace back your own ownership of that equity and even tie that to your estate-planning documents.
Extrapolating this out, those documents also could be housed on a blockchain with respective triggers for when you eventually die. Ultimately that information is then released to your beneficiaries based on that event (Date of Death) recording by the Social Security Administration (SSA).
From Klein to Kapoor. How Artists try to Claim Monopolies over Colors.
Anish Kapoor has recently announced to have acquired the exclusive right of Vantablack, a particular pigment black so dark as to absorb the 99.96% of the light.
Vantablack is a substance made by Surrey Nano Systems company and it was developed and patented by Nasa for military purposes that facilitate the satellites’ transfer. The paint’s peculiarity is that it is able to absorb so much the light to prevent the human eye from identifying the type of shadows, which help human brain to understand the shape of an object: a crumpled piece of tinfoil with a coat of paint looks almost completely flat. It’s been a long time that Kapoor has started experimenting with Vantablack and working with the Surrey Nano Systems, the first company to be able to produce the pigment.
However, this is not the first time that an artist claims rights on particular colors. In 1960 the French artist Yves Klein patented “International Klein Blue (IKB)”, a particular tone of blue, that he had developed with a Parisian paints’ producer and used in several monochromatic paints. Klein died in 1962; however, IKB still exists and is still used nowadays.
The exclusive right could be a marketing strategy of the Surrey Nano Systems: link its material to one of the best contemporary artists. Otherwise, it could be the revival of a phenomenon already known in history, that links almost inextricably the use of color to the artist.
McDonald's Accused of Infringing the Copyright of American Graffiti Artists.
After the restyling of its restaurants, Mc Donald’s is trying to get closer to a younger audience and to defend itself from indiscriminate production of parodistic graffiti that defame the American company’s image.
However, with a huge boomerang effect, the American company attracted many lawsuits for rights violation by graffiti artists who accuse McDonald’s of copying them. The latest lawsuit was filed by Jean Berreau, Dash Snow’s former partner and current manager of his properties.
“Nothing is more antithetical regarding its reputation as outsider than the big companies’ consumerism which McDonald's and its marketing are the most importantexponents”. This is what it is written in the complaint. Snow, who actually was a descendant of a aristocrats French family.
Unfortunately, this is not the first time that the company’s new style is accused of violating copyright: last 25 March another writer, Norm, sued the fast food chain, accusing it of having copied his famous graffiti made in Brooklyn, in Bartlett Street (“Norm on the fire escape of Bartlett”). Unlike Snow, Norm is not against a commercial use of his job, indeed we worked with big firms. However, in his complaint he asserts that McDonald’s “has decided consciously to coat the walls around the world with its restaurants, by using Norm’s name, his art, style and brand”. Also, the company “has used and is still using copies of Norm’s work of art in several restaurants in Europe and Asia, without his consent. However, in less than a month, the writer renounced the suit, refusing any comment on the event: we don’t know whether Norm and the McDonald’s company come to an agreement.
Elena Ferrante. Between the "Right to be Forgotten" and Privacy.
“I don’t hate lies, I find them healthy and I use them to hide my person”.
Thus, it’s written in the autobiography entitled La Frantumaglia by the famous and mysterious Elena Ferrante, whose identity seems to be revealed today.
The author of books become bestsellers is, according to a recent 24Ore’s report, Anita Raja, a translator born in Naples and resident in Rome, whose mother was a Polish Jew escaped from Holocaust. Therefore, the mystery of Elena Ferrante seems to be resolved. Thus, the millions of readers’ (lawful?) dream, who wish to know the name and person behind the famous pseudonym, finally come true.
Firstly, the question is if the report has violated the right of pseudonym. The pseudonym indeed can be used to conceal its true identity, so as an expression of privacy right.
According to Civil Code, pseudonym is a name different from the one attributed by law. However, it can be protected as well as the right to have a name, provided that the pseudonym has achieved the name’s importance otherwise it has carried out the same social identification’s function. If this requirement occurs, (i.e. writers and actors whose pseudonyms are more famous than their name) the person who use pseudonym can demand a restraining order and claim the termination of the pseudonym’s unlawful use, without prejudice to compensation.
However, it doesn’t seem to be the case. The Sole 24ore’s report indeed doesn’t infringe the famous writer’s pseudonym, on the contrary it seems to violate her right to anonymity. The problem is that according to Italian legal system, the general right to anonymity doesn’t exist.
Could Elena Ferrante, who has always said that she doesn’t want to reveal her real identity, invoke protection of Privacy Right (that it is increasingly being denied to public figures)?
Before Privacy Law entered into force, the source of the right to be left alone was a 1975 Italian High Court judgment, that describes this right as the protection of personal and family situations and events which, although they occur outside domestic context, they don’t have a socially valuable public interest. Therefore, violation of right to privacy means any interference that, even if it is carried out by lawful means and for non-offensive purposes, is not justified by reasonable public interests.
Eventually, jurisprudence specified that famous people are supposed to have waved to the part of Privacy Right which is connected to the public context.
Therefore, the line between the right to privacy and the right to information seemed to be the subject’s fame. However, even very popular people retain the privacy right, limited to facts which have nothing to do with the reasons for their popularity.
The relationship between the right to report and privacy right is very complex and it is regulated by a set of rules stratified over time which have tried to establish a proper balance between the different interests.
There are several privacy rules that journalists have to respect.
The 675/1996 Law regarding Personal Data Protection, then become “Italian Personal data Protection Code” (Legislative Decree no. 196 of 30 June 2003), has created an extensive system of balancing conflicting rights through the provision of several legal means: balancing policies, procedures to accomplish it, jurisdictional instruments.
Italian Law provides different guarantees depending on the nature of Data. Briefly, the use of Personal Data is possible if three conditions are met:
The use of Personal Data shall be related to freedom of expression
Personal Data shall concern public interest facts
the spread shall occur "within essential limits", that is, it is not possible to insert non-strictly necessary information.
The report on the true identity of Elena Ferrante has not been clearly neither confirmed nor disproved. Therefore, if she is really Anita Raja is still a mystery.
Ivanka Trump's Copycat S(c)andal.
Aquazzura was founded in 2011 in Florence by Colombian-born designer Edgardo Osorio to create glamorous, sexy shoes for the modern woman.
Aquazzura, has recently filed a trade dress infringement suit against Ivanka Trump and her licensee, Marc Fisher, for allegedly copying the design of the “Wild Thing Shoe” a best seller of the Florence based company.
Ivanka Trump owns a New York-based clothing and accessories collection, under which she released a shoe collection.
According to Aquazzura, Ivanka Trump and Marc Fisher are producing footwear that “mimics every key element of the trade dress of Aquazzura’s well-known and distinctive” shoes, in particular, a $145 "exact copy" of its own $700+ Wild Thing style.
Aquazzura, alleges that Trump and Fisher make use of the trade dress of the Wild Thing Shoe.
Under US Law a trade dress is a form of trademark protection that extends to the overall commercial image of a product that indicates or identifies the source of the product and distinguishes it from those of others. It may include the design or shape/configuration of a product.
Aquazzura, which has set forth claims for trade dress infringement, unfair competition, and deceptive trade practices, is seeking both preliminary and permanent injunctive relief, an accounting of Defendants’ profits flowing from their use of infringing trade dress, damages, attorneys’ fees, and any “other relief as the Court deems just and proper.”
Brexit and your EU Trademark: and now what?
The European Union Trade Mark (the "EUTM") is a popular and versatile vehicle used to protect trade mark rights across the 28 Member States of the EU.
Brexit could result in the UK no longer being part of the EUTM regime because the EUTM Regulation would no longer be directly applicable in the UK.
At worst, in the absence of transitional legislation, existing EUTMs would no longer extend to the UK, and applicants would have to register a separate national trade mark to cover the UK. The UK Intellectual property Office (“IPO”) ha benne keen to ease any fears of UK trade mark owners although its statement avoided any mention of the one main approach that could have allayed such fears, i.e., transitional legislation to ensure the future recognition of EUTMs in the UK. It emphasizes in its statement that the UK government is exploring "various options" to ensure the long-term coverage of EUTMs, but fails to elaborate on exactly what these options may be. The IPO also hints at a future consultation to gauge the popularity of likely options among users of the trade mark system, so we can expect further detail on the government's plans in due course (although, again, the IPO makes no comment on timings).
The IPO does clarify that, even after the UK leaves the EU, UK businesses will still be able to register an EUTM which will cover all remaining EU Member States but anything other than that position would have been particularly surprising.
More tellingly, the IPO points to the fact that the UK is also a member of the Madrid system for the international registration of marks (the "Madrid System"), which could possibly signal a greater role for this international regime in the future of UK trade mark protection. The Madrid System is an international trade mark system, which allows users to file one application in one language, and pay one set of fees to protect trade marks in up to 113 territories, including the EU.
We continue to believe that, because of the current uncertainties and in order to minimize any risks associated with the Brexit change-over, anyone who owns EUTMs and views the United Kingdom as an important market may want to consider filing for United Kingdom trade mark registrations now, rather than waiting to see what happens when the United Kingdom formally exits the EU. And for new trade marks, we recommend filing in both the EU and the United Kingdom if the United Kingdom will be an important market for you. This increases costs only slightly and clearly secures a priority date for the United Kingdom.
The use of Twitter Hashtags and the CIO's trademark rights.
The United States Olympic Committee (USOC) has been trying to prevent companies that aren’t official sponsors of the Games from using “official” Twitter hashtags such as #TeamUSA and #Rio2016.
Over the last few weeks, the USOC has sent letters to companies that sponsor athletes but don’t have a commercial relationship with the USOC or the International Olympic Committee, warning them against stealing intellectual property.
One of these letters, written by USOC, states: “Commercial entities may not post about the Trials or Games on their corporate social media accounts. This restriction includes the use of USOC’s trademarks in hashtags such as #Rio2016 or #TeamUSA.”
The mean-spirited approach is designed to protect sponsors – such as Coca Cola, McDonald’s, GE, P&G, Visa and Samsung – who fork out for marketing presence at the event.
It’s been possible to trademark hashtags in the US since 2013 but the application of trademark law to those tweeting hashtags may be wrong. Indeed trademark infringement occurs when another party uses a trademark and confuses the public as to the source of a product or service that’s being used in commerce. That’s not what happens when you use a hashtag because you may not be selling a product or service, but just making statements on an open forum. How else do you indicate you are talking about the Rio 2016 Olympics without saying #Rio2016?
Aippi 2016 in Milano
Do you use Instagram?
Instagram, like many other image-sharing platforms, needs you to grant them the right to display your images, or else they would be violating your copyright by displaying your pictures in the app. Obvious? Maybe, but there’s more to it…
1. You grant them a License
Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels…
Does this mean you still own your pictures? Well, yes, but they can use it whenever they want. At the moment, they only use user pictures in seemingly harmless instances like blog posts and whatnot, so it may be true that the chances of Instagram exploiting user content for profit aren’t that high. That clause, however, is still there. Not to mention that if you’re on Instagram, you already agreed to it.
2. Not unless your account is set to ‘Private’
…except Content not shared publicly (“private”) will not be distributed outside the Instagram Services.
Great! But what if you use Instagram to gain followers?
3. Reps and warranties…
You represent and warrant that: (i) you own the Content posted by you on or through the Instagram Services or otherwise have the right to grant the license set forth in this section, (ii) the posting and use of your Content on or through the Instagram Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, and (iii) the posting of your Content on the Site does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.
In other words, DO NOT TAKE ANY PICTURE FROM THE INTERNET AND POST IT IN YOUR INSTAGRAM.
4. You wanna read the last sentence in that quote again? Ouch.
You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.
In other words, the people over at Instagram have their backs covered. They won’t waste a penny if you get in trouble. This is why you don’t want to get sued (other than, well, obvious reasons). If the entity that sues you decides to include Instagram in the lawsuit (which they probably will since it was their service you used), it is my understanding from this clause that you could end up paying for your lawyer AND Instagram’s lawyer. That is, in addition to any damages you owe for copyright infringement, should you be found guilty. Ouch? OUCH.
By the way… Instagram is awesome, though, check it out if you haven’t done so already.
The Song does not Remain the Same.
Led Zeppelin have won a copyright lawsuit that claimed they had plagiarized the music to their most celebrated song, "Stairway to Heaven." A Los Angeles jury determined Thursday that the lawyer representing the estate of late guitarist Randy Wolfe, who played with the group Spirit, did not prove that the hard rockers lifted the song's intro from Spirit's 1968 instrumental "Taurus."
The lawsuit began in 2014 alleging that Led Zeppelin would have been aware of the song "Taurus" and would have subsequently copied it. The track appeared on Spirit's 1968 self-titled debut and features an acoustic guitar line in descending chromatic pattern.
The jury’s verdict, which found substantial differences between “Stairway to Heaven” and Spirit’s instrumental track “Taurus,” followed a weeklong federal court trial in Los Angeles that had called into question the originality of the 1971 song by Led Zeppelin.
The jury found Led Zeppelin singer Robert Plant and guitarist Jimmy Page had access to “Taurus,” a song written in 1967, but that the riff they were accused of stealing was not intrinsically similar to the opening chords of “Stairway.”
The Battle between Soundreef and SIAE Rages on.
With a measure of the last May 27 the Court of Milan suspendedthe execution promoted by SIAE against a Soundreef’s client company guilty, according to SIAE itself, for having paid royalties for the spread of environment music to the english collecting society.
Soundreef participated in the proceeding to support its client’s reason, arguing the legitimacy of intermediation carried out in Italy for rights to spread music within a commercial operation, while, according to SIAE, the english collecting society did not have any proxy for the mediation of such rights.
With the measure, the Judge – on the basis of case files – considered, for the time being, founded the Soundreef’s thesis and therefore rejected the SIAE’s appeal pending the decision of trial judgment.
According to the Court of Milan, SIAE did not, in fact, prove to have any proxy to mediate the copyrights on works used by the mentioned commercial operation and, in any case, did not have any right to charge penalties also requested to the user.
It should be understood the Soundreef’s future after the recent outcome of referendum on Great Britain’s exit from the European Union. Once the exit process from the European Union will be completed, Soundreef can no longer rely on the direct application of Barnier directive (EU 2014/26).
How to Revive a Vintage Trademark.
A recent trend has emerged wherein startups, with little or no relation to nostalgia brands from the past, will obtain the rights to bring a gone-but-not-forgotten product back to the market. From fashion to watches to candy, many new companies have taken dead or expired trademarks and given them new life. In fact, marketplaces have emerged where new businesses can purchase an old brand, but it isn’t usually necessary to buy a brand that’s no longer in use.
Former couture label Paul Poiret was recently put up for sale by former owner Luvanis SA after being dormant for 80 years.
Reviving a well-known brand can save millions of dollars in upfront marketing costs that can be used in other areas of the business. And, Marks contends, name recognition makes it easier to capture attention in a crowded marketplace, especially if customers remember the brand fondly.
The first step to reviving an old brand is finding out who owns the rights to the trademark, determining whether or not it’s still in use, and determining what you will need to do to obtain rights to the mark. Initially, you will want to conduct a trademark search in order to determine whether or not the trademark is available. You can hire a lawyer to conduct this process for you.
Trademark rights arise out of using the mark in commerce, and if a mark isn’t used, then the rights to use the mark becomes free. Generally, a trademark needs to have been used within the last five years in order to stay protected. If the mark has been abandoned, then it becomes available to others.
It’s up to you to obtain the trademark registration and use the mark in commerce in order to protect your rights to your new old brand. Consider buying the domain name for the product and forming a corporate entity for your new business.
If the trademark has been used recently, or the mark is still active on the registration, you may consider contacting the owner of the mark to inquire about its availability and offer to purchase it along with whatever other intellectual property you may need to bring your product back to life.