Emoticons and Precontract Liability.

Emoticons or emoji, also known as smileys, are stylized reproductions of facial expressions. The word "emoticon" is a new made-up expression of the English terms "emotion" and "icon", and it is used to designate a small image reproducing our most common feelings. By now, however, emoticons, originally made of typical smile, laughs, tears, and scowl, has expanded and includes symbols and images of various kinds. These images, mainly used on the internet and in text messages to add extra-verbal components to written communications, have become so common that they are considered a new digital language.

Recently in Israel a curious fact occurred: a landlord successfully sued a couple of guy who misled him by writing an emoji message. More precisely, the landlord, Yaniv Dahan, published an ad for renting his house on an real estate webpage and a couple responded, according to the court, making a statement of intent to the conclusion of a contract. Indeed, after the young couple responded to the ad, the landlord deleted his ad but the couple stopped responding to him showing no more interest in renting the apartment. 

The matter whether there was a sort of pre-contract liability was then brought in front of the judges who considered, among the evidence used against the defendants, the text written in response to the ad, containing  images depicting various expressions and objects, from the "v" gesture of the fingers to a bottle of champagne.

The judge ruled in favour of Mr. Dahan, ordering the couple to pay about $ 2,000 as compensation for pre-contract liability. In particular, the court motivated its decision by explaining how the emoji used by the couple, including the bottle and the ballerina, indicated optimism and positivity, and hence the intention to enter into a contract. Although this message was not a binding contract between the parties, according to the court the message they wrote was enough to create a legitimate expectations that a further agreement would be concluded.

Certainly, and this is a very common experience, emoticons are intuitive and perceptive symbols, as they express a feeling or reference that would be difficult to translate in words, and that, above all, it would take longer time to be written extensively with the letters.

However, there is the question of whether the cute gifs as well as simplify and clear ambiguities by clarifying a concept have not replaced a good part of feelings, or rather the will to express them, making virtual communication lighter and more unconscious and therefore less representative of the actual individual’s will.

So far, this ruling is an isolated case, but we definitely have to reflect on this issue and, in the meantime, also to be careful to what we write ;-).
 

Blue Ivy

A curious legal battle is recently going on between two international music stars and an Californian company for filing of the trademark "Blue Ivy", which happens to be also the name of the Beyonce’s and Jay-z’s five-year-old daughter. The two singers had already tried, at the time of the baby's birth, to register her name as a trademark, but the LA based clothing company had entered an opposition, asserting its rights to the same name, which had been operating for three years before the child was even born. Today, Beyoncé and Jay-z have filed a new request for registration, adding to brand also the rapper's last name, Carter. This time, the brand, available for viewing on the US Patent and Trademark Office database, covers a wealth of product categories from the beauty market to childcare products, as well as DVDs, CDs, handbags, books and even gambling cards or " live music performances ". The registration request was originally filed in January 2016, but was only available for opposition on January 10 this year. In fact, the California based company has again moved to block this second application, claiming that the two famous parents would like to proceed with trademark registration only to prevent someone else from using the name of their child, without being able to provide the actual proof of use on the market. Indeed, contrary to what is provided in the Italian legal system, according to the United States trademark law, an essential requirement for registration of a trademark is the presentation, at the time of application, of a so-called "statement of use", demonstrating the use of the mark on the US market. If the applicant company is new on the US market, the trademark application is temporarily accepted. Within six months, the registration may be confirmed following the commercial “use test” in the United States. The test of use is made possible by the proof of the product’s sale, or with the printing of catalogs, with advertisements, etc. In Italy, however, the use of the trademark is not an essential requirement for its registration, but a condition for maintaining its validity. The legislator, in Article 24 of the IP Code, explicitly regulated the case of the trademark revocation for "non-use" if the holder of a trademark registered in a specific class didn’t use it for 5 years. In both cases, the ratio of this rule is to prevent anyone from make use of a distinctive sign without actually using it, withdrawing it from the market and preventing others from using it.

Are you Ready for the EU New Privacy and Data Protection Rules?

The Data Protection Authority has published the new Guidelines concerning the implementation of the new European General Data Protection Regulation 2016/679, issued by the European Parliament in April 2016, to enable public entities, institutions, natural person and private companies to know and correctly apply the new provisions on this matter. The Regulation, which will become fully effective from 18/05/25, will be operational in all EU countries without any other transposition procedure and it will replace the current Privacy Code, which was adopted instead with the Legislative Decree n. 196 of 2003 in the implementation of a previous European Directive. Within a year, data protection national laws will be unified in a single discipline. The system set up by the European Union consists of two parts: a regulation concerning people, companies and administrations and a more specific Directive concerning the use of personal data in the field of security and police or justice activity. This second part will have to be transposed by a national law. The Data Protection Authority's Guidelines deal with the issues of the first part of the legislation, dividing it into six groups (lawfulness of processing, disclosure, data subjects’ rights, processing responsible, risk-based approach and accountability measures of holders and responsible, international data transfers) and addressing its innovation and possible issues. In particular, some of the changes introduced by the Regulation are in the interest of data owner. First of all, the disclosure eventually signed by the data owner must be clear, brief, intelligible and easily accessible. In addition, the owner may decide to transfer his data from one subject to another, with the possibility of changing the manager without losing the information provided. Only for non-European countries or for international organizations not having an adequate privacy policy it will require an explicit consent to the transfer of personal data. On the other hand, the Regulation promotes the accountability of data holders and the adoption of approaches and policies that constantly take into account the risk that may occur in the data processing. Finally, another important innovation is the introduction of the Data Protection Officer, a professional manager for managing and controlling the privacy policies of companies and public entities. Thus, in a year we will discover the effects of this reform and how personal data management will change in all of European Union.

A unique decision by an Italian Court on online streaming.

Uploading films protected by copyright  on the internet is not in itself an illegal activity. This is what has recently ruled a minor Court in Italy, which cancelled an administrative fine of more than 550 thousand euro issued against a website which allowed visitors to watch online pirated movies. 

In particular, the italian judge upheld an action against a decision of 2015, according to which the manager of the website was fined for copyright violation. According to the Italian Court a copyright violation through a web-site that host links to movie and music streaming is not automatic, but it requires an investigation to establish the existence of a scope of profit, as stated under article 171 of the Italian Copyright Law. In this case, the judge has ruled against the existence of a scope of profit, notwithstanding the existence of banners . According to the Court sharing files protected by copyright, allows the owner to save expenses and is not an activity which contains a scope of profit.  

The Unique Italian Vespa

The Court of Turin has recently ruled that a Vespa’s shape is a creative and artistic work, protected as an industrial design, and that it can not be copied. In these terms the judges issued an historic ruling which, for the first time, awards the exclusive right to commercialize the timeless Vespa on the Italian market. It all began in 2013 at the EICMA, the Milan motorcycle expo, where the Police seized eleven scooters belonging to seven different companies, because of their similarity to Piaggio’s historic model. On that occasion, the Financial Police had found that the displayed models violated Piaggio’s exclusive right consisting in a three-dimensional trademark that protects the distinctive shape of the Vespa. One of the companies involved in the seizure, the Chinese Taizhou Zhongneng, had requested the Court of Turin for the cancellation of Vespa's trademark and, therefore, to ensure compliance of Chinese motorcycle line presented at EICMA , under the "Ves" trademark. The Italian group, however, had initially responded claiming its right on a specific model, the Vespa LX of 2005, and then on all the lines produced since 1948. The Court granted the applications of the trademark and accepted the requests proposed by Piaggio’s Lawyers and established not only that the Chinese company is prohibited from producing and marketing the scooter Ves, but also that all of the Vespa stylistic variations are protected by Article 2 of the Italian Law on copyright. This, however, raises some doubts because, although it was obvious that the shape of the Ves is identical to that produced by Piaggio and in addition the trademark is infringing, on the other hand granting a copyright or design shape to all Vespa models is more complicated. In fact, by affirming that all the different versions of Vespa are protected by copyright the judges established a prohibition of the marketing of any scooter, being the Vespa’s shape and the scooter’s one the same thing.

Facebook's Copyright Infringement case continues in front of the Court of Milan

The case between Facebook and Faround will be heard in front of the Milan Court of Appeal on April 4. In the first degree Facebook was sentenced for the first time for unfair competition and copyright violations against Faround, a software application created in 2012  by the Milan-based company Business Competence.

On the first instance the Milan’s Court, had held that Facebook’s application Nearby was infringing Fararound’s electronic database which is protected under Italian Law.
Faround selects data on Facebook, through the profiles of registered users, and organizes and display them on an interactive map. The map then shows shops near to the user's position, also with relatives reviews and information on discounts and offers. Indeed this information is not owned by Faround. However the Court held that the mode of their organization holds a degree of originality which should be granted copyright protection. In fact, "the previous programs developed by Facebook (Facebook Places) and by third parties (Foursquare and Yelp) did not have the same capabilities as Faround: the first was a kind of pager to reach friends and not a geolocation of shops close to the user, while others were designed on the basis of logical algorithms working on the base of data entry provided by members of their social networks, and not Facebook’s.”
For these reasons, the Business Competence Srl accused and sued Facebook for infringing the application’s concept and format, launched with the name of Nearby. In addition, Nearby attracted professional advertisers, perpetrating unfair practices on the advertising market.

The Court of Milan, found that the two applications had the same functionalities and overlapped and ruled for the publication of the decision on the newspapers "Corriere della Sera" and "Il Sole 24 Ore" and, for at least fifteen days, on home page of facebook.com. The Court also banned any further use of Nearby in Italy, placing a fine of 45 thousand euro for each day of violation of its order . Facebook has appealed the decision in front of the Appeal  Court of Milan, which, at the moment, has rejected the suspension request of the provisional measures imposed at first instance.
 

Hendrix vs Hendrix

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.