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Federal Circuit Flash Digest: News in Brief

By Steven Wilfong

Multimedia car system patents ruled as unenforceable based on inequitable conduct

ITC’s ruling that uPI violated Consent Order affirmed

Court rules that VeriFone devices did not infringe on payment terminal software patents

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Flash Digest: News in Brief

By Viviana Ruiz

Converse attempts to protect iconic Chuck Taylor All Star design

French Court rules that shoe design copyright was not infringed

Oklahoma Court rules that Facebook notifications do not satisfy notice requirement

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Silk Road Founder Loses Argument That the FBI Illegally Hacked Servers to Find Evidence against Him

By Travis West  — Edited by Mengyi Wang

The alleged Silk Road founder Ross Ulbricht was denied the motion to suppress evidence in his case. Ulbricht argued that the FBI illegally hacked the Silk Road servers to search for evidence to use in search warrants for the server. The judge denied the motion because Ulbricht failed to establish he had any privacy interest in the server.

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Trademark Infringement or First Amendment Right of Freedom of Speech?

By Yunnan Jiang – Edited by Paulius Jurcys

On October 11, the Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union of Virginia, Inc. (“ACLU”) filed a joint brief in the U.S. Court Of Appeals, urging  that “trademark laws should not be used to impinge the First Amendment rights of critics and commentators”. The brief argues that the use of the names of organizations to comment, critique, and parody, is constitutionally protected by the speaker’s First Amendment right of freedom of expression.

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Twitter goes to court over government restrictions limiting reporting on surveillance requests

By Jens Frankenreiter – Edited by Michael Shammas

Twitter on Oct. 7 sued the government, asking a federal district court to rule that it was allowed to reveal the numbers of surveillance requests it receives in greater detail. Twitter opposes complying with the rules agreed upon by the government and other tech companies in a settlement earlier this year, and argues that the rules violated its rights under the First Amendment.

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Following Bilski, court upholds validity of patents that meet a “meaningful limits” test
By Irina Oberman – Edited by Avis Bohlen

H&R Block Tax Services, Inc. v. Jackson Hewitt Tax Service, Inc., No. 608cv37 (E.D. Tex. Feb. 2, 2011)
Slip Opinion hosted by 271 Patent Blog

Magistrate Judge Love, sitting in the United States District Court for the Eastern District of Texas, reconsidered a previous Report and Recommendation in this case, which recommended invalidating two of the plaintiff’s three asserted patents (the ‘862 and ‘425 patents). Applying the machine-or-transformation test as well as a new “meaningful limits” test, Judge Love modified the recommendation and upheld the validity of the ‘862 patent because the claims applied a “meaningful limit” on the scope of the claims.

JOLT Digest previously reported on the revised recommendation271 Patent Blog offers an overview of the decision highlighting the discussion of the ‘862 patent. Additionally, FreePatentsOnline and Patent Storm provide a helpful overview of the ‘862 patent. (more…)

Posted On Feb - 20 - 2011 Comments Off READ FULL POST

By A. Gavin Fishman

Marketing Executive Proposes Controversial “.gay” Top-Level Internet Domain

CNET reports that Scott Seitz, chief executive of dotGAY and founder of SPI Marketing, plans to apply to the Internet Corporation for Assigned Names and Numbers (ICANN) for approval of the proposed top-level Internet domain “.gay.” Seitz states that “.gay will be a venue for enhancing [the LGBT community’s] ability to interact with each other as a community.” Past efforts to register controversial top-level domains, such as the 2004 application for the rights to run .xxx, have stalled indefinitely in the application process. The Huffington Post reports that the largest obstacle to the application may be the U.S. Government, who “recently proposed that they have the power to veto domains that they believe to be objectionable.” CNET quotes Seitz as stating that this proposal is “problematic, and it’s discrimination on a terrible level. It’s not even appropriate for countries (to have the ability to veto) because of freedom of expression. Anything beyond (restricting speech that) incites violence is discrimination.”

Obama Administration Issues First Annual Report on Intellectual Property Enforcement

This month, the U.S. Intellectual Property Enforcement Coordinator (“IPEC”) released the 2010 Annual Report on Intellectual Property Enforcement. The report states that “[c]ombating online infringement, protecting health and safety and preventing theft of trade secrets for innovative technology will continue to be a priority,” and that “[o]ne new area of focus for 2011 will be patent enforcement in China and determining what the U.S. Government can do to improve the situation in China for U.S. innovators.”  CNET characterizes the report as “read[ing] a lot like a report that could have been prepared by lobbyists for the recording or movie industry,” noting that it includes various statistics and “proposals to curb internet piracy and other forms of intellectual property infringement.” On the White House Blog, Victoria Espinel, the first person to hold the office of the IPEC, highlights the report’s support of the Anti-Counterfeiting Trade Agreement, as well as the increased law enforcement actions which have taken place over the past year in the sphere of intellectual property.

MPAA sues Hotfile.com for its “staggering” P2P Copyright Infringement

Time, Ars Technica and CNET report that the Motion Picture Association of America (“MPAA”) has filed a complaint against the operators of the “cyberlocker” service Hotfile. CNET explains that “cyberlockers are an alternative to BitTorrent file-sharing services” where “[a] user logs on to a locker service and watches whatever films or TV shows are stored there.” In its press release, the MPAA claims that “Hotfile facilitates the theft of copyrighted motion picture and television properties on a staggering scale and profits handsomely from encouraging and providing the means for massive copyright infringement.” The Hollywood Reporter reports MPAA general counsel and chief content protection officer Daniel Mandil as stating: “The theft taking place on Hotfile is unmistakable. The files are indeed ‘hot’ as in ‘stolen.’ It’s wrong and it must stop.” Ars Technica notes that the Digital Millennium Copyright Act’s safe harbor provisions would ordinarily protect the operators of a site like Hotfile from liability for content uploaded by users, but that the MPAA claims that the site encourages infringement and therefore falls outside the safe harbor protections.

Posted On Feb - 19 - 2011 1 Comment READ FULL POST

The Harvard Journal of Law & Technology recently released its Fall 2010 issue, now available online.  Aaron Perzanowski, author of “Unbranding, Confusion, and Deception” has written an abstract of his article for the Digest, presented below.

- The Digest Staff

JOLT Print Preview: Unbranding, Confusion & Deception
Aaron Perzanowski

Unbranding is the practice of eliminating or selectively reducing the use of a brand in response to unfavorable consumer opinion. Faced with the reality of a deeply damaged brand, many firms seek a fresh start. Rather than take steps to repair their public image, they create a new one. Although unbranding threatens to confuse and mislead consumers about the source and characteristics of goods and services, the legal remedies available to consumers to address these harms are limited.

When a brand suffers from strong negative consumer perceptions, it transforms from a valuable asset to a major liability. Just as brands can function as repositories of consumer goodwill, reflecting favorable public sentiment, they can also represent badwill, negative associations in the minds of consumers. Given the expense of jettisoning an established brand and launching a new one, unbranding is generally a rational strategy only when an existing brand is deeply and widely unpopular, perhaps because the firm has produced dangerous products or engaged in illegal activities. Tellingly, BlackwaterPhilip Morris, and WorldComm have all employed unbranding strategies in recent years. (more…)

Posted On Feb - 18 - 2011 Comments Off READ FULL POST

Kwan v. Schlein
By Raquel Acosta – Edited by Jonathan Allred

Kwan v. Schlein, No. 09-5205-cv (2nd Cir. Jan. 25, 2011)
Opinion hosted by Scribd.com

The Court of Appeals for the Second Circuit affirmed the District Court for the Southern District of New York, which denied summary judgment on plaintiff’s claim for copyright infringement because it was time-barred, and granted defendants’ motion for summary judgment to dismiss the claims. [Editorial note: the Second Circuit opinion incorrectly records that the district court granted appellant’s motion for summary judgment]. The circuit court also affirmed the district court’s order to dismiss defendants’ counterclaims without prejudice.

The Second Circuit held that where there is a genuine dispute regarding plaintiff’s ownership of copyright and the statute of limitations has run, plaintiff cannot then claim copyright infringement. In so holding, the court noted that whereas an infringement action may be commenced within three years of any infringing act, an action based on an ownership claim must be commenced within three years of the point in time plaintiff became aware of the dispute in ownership. A disputed claim to ownership cannot be repackaged as an infringement claim – the statute of limitations runs on the underlying issue.

Property, intangible questions whether the case was properly decided. PlagiarismToday presents an overview of copyright infringement and the statute of limitations. (more…)

Posted On Feb - 17 - 2011 Comments Off READ FULL POST

Federal District Court Denies Motion to Dismiss Contributory Cybersquatting and Contributory Dilution Claims
By Elina Saviharju – Edited by Jonathan Allred

Microsoft Corp. v. Shah, et al., No. C10-0653 (W.D. Wash. Jan. 12, 2011)
Slip opinion hosted by WSJ.com

The U.S. District Court for the Western District of Washington denied defendants’ motion to dismiss plaintiff Microsoft’s claims for contributory cybersquatting and contributory dilution as unrecognized by law.

Cybersquatting is the practice of registering a domain name similar to a well-known trademark in order to profit from confusion with the mark, or by holding the domain name out for sale to the trademark owner, and is prohibited by the Anti-Cybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. § 1125(d). In this case, the District Court held that ACPA should be interpreted so as to allow claims for contributory cybersquatting in addition to direct cybersquatting, although the cause of action has not been explicitly permitted by an appellate court or by statute. The court noted that the defendants’ conduct runs counter to the purpose of ACPA and that “it is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute.” Microsoft at 7 (quoting Bob Jones Univ. v. United States, 461 U.S. 574, 586 (1983)).

The Trademark Dilution Act prohibits dilution by blurring or by tarnishment of a famous mark. 15 U.S.C. § 1125(c). As with contributory cybersquatting, contributory trademark dilution had never been directly addressed by a court or by statute. Even so, the District Court held that prohibiting such cause of action would be inconsistent with the Trademark Dilution Act, which seeks to protect against exactly the kind of harm allegedly caused by the defendants.

Eric Goldman provides an overview and critique of the case. The Wall Street Journal Law Blog and Seattle Trademark Lawyer also comment on the District Court’s order. (more…)

Posted On Feb - 14 - 2011 1 Comment READ FULL POST
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