Consumer & Retail – Page 6

Unicolours v. H&M: Copyright Registration Validity

Jun 22 2021

On June 1, 2021, the Supreme Court granted certiorari in the ongoing case of Unicolors v. H&M Hennes & Mauritz, L.P., No. 20-915. With a nearly $1 million copyright verdict on the line, pattern manufacturer Unicolors, Inc.’s (“Unicolors”) fate is now at the Supreme Court to decide whether courts should refer copyright registration validity challenges to the Copyright Office where there is a known misrepresentation in the registration, but no evidence of intent to defraud.

A copyright registration certificate is not valid if obtained by offering false information and that information, if known, would have resulted in the registration being denied. Under 17 U.S.C. §411(b)(2), where knowingly inaccurate information is included in an application for copyright registration, “the court shall request the Register of Copyrights to advise the court whether the inaccurate information if known, would have caused the Register of Copyrights to refuse the registration.”

A Fair Use Tale, or All’s Well That Ends: the U.S. Supreme Court Holds Google’s Use of Java Code to Be a Fair Use under U.S. Copyright Law

Apr 13 2021

By: Mark H. Wittow, Paul J. Bruene, Trevor M. Gates

On 5 April 2021, the U.S. Supreme Court resolved a major copyright dispute that had wound through the federal courts for over a decade. In a 6-2 decision written by Justice Breyer, the Supreme Court held that Google’s copying of roughly 11,500 lines of declaring Java code for Google’s mobile Android platform was a fair use as a matter of law and thus not copyright infringement. The decision addresses the application of copyright law to software and updates and extends the Supreme Court’s copyright fair use jurisprudence. Read our recent client alert here.

Amendments to China’s Copyright Law

Apr 13 2021

The first substantial amendments to China’s Copyright Law in 20 years were passed in November 2020 and will come into effect on 1 June 2021 (the Amendments). The Amendments primarily focus on enhancing protections for copyright owners, better aligning China’s Copyright Law with international standards, and implementing the Beijing Treaty on Audiovisual Performances that entered into force in April 2020.

The heavy deterrence-related focus of the revised Copyright Law will strengthen protections for copyright owners, particularly relating to digital piracy.

Riding on Coat-tails, Doesn’t Come Free: UK High Court Awards Additional Damages for Oh Polly’s Flagrant Infringement of House of CB’s Unregistered Design Rights

Mar 16 2021

On 24 February 2021, the UK High Court found that a number of Oh Polly dress designs had infringed the unregistered design rights of its competitor, House of CB. This recent decision confirms the risk of additional damages being awarded if infringers flagrantly copy third party designs, whilst also confirming the difficulties brand owners face in bringing passing off actions based solely on copycat designs.

Love Island’s Molly-Mae Hague breaches the UK Advertising Standards Authority promotion rules

Mar 10 2021

An £8,000 Instagram giveaway promoted by Love Island contestant Molly-Mae Hague, breached the UK Advertising Standards Authority’s (ASA) promotion rules, a recent decision of the ASA has determined.

In September 2020, Ms Hague (who has more than 5 million followers on Instagram, and 1.5 million subscribers on YouTube), offered one of her followers the chance to win approximately £8,000 worth of luxury designer goods, including handbags, a laptop and products from her fake tan range. To enter, her followers were asked to like the Instagram post, tag a friend and follow her personal Instagram page, the Instagram page of her tanning brand and to subscribe to her YouTube channel.

The Instagram post in question was liked close to 1.2 million times and attracted almost 3 million comments.

After the giveaway, the ASA received 12 complaints from individuals who believed that not all of the entrants were included in the ‘final draw’ and so did not have an equal and fair chance of winning. The complainants challenged whether: (i) the prize was awarded in accordance with the laws of chance; and (ii) the promotion was administered fairly.

When Is an Office Chair Design Famous? U.S. Supreme Court Won’t Hear Herman Miller’s Trade Dress Appeal Regarding the Eames Chair

Mar 10 2021

The U.S. Supreme Court decided not to take up Herman Miller, Inc.’s appeal from a Ninth Circuit holding that partially overturned a jury verdict and held that Herman Miller’s popular Eames office chair (average retail price US$1,200) is not “famous” enough to qualify for trade dress dilution protection.^[1] The Supreme Court’s denial of Herman Miller’s petition means the Ninth Circuit’s decision will stand.

Australian Movement Trade Marks: Businesses “Moving” with the Times?

Feb 28 2021

In a technological age where most consumers are receiving their information digitally, brands need to find new ways to engage with consumers. With nine out of ten Australians owning a smart phone and spending on average three hours a day on their devices, consumer engagement by way of multimedia is growing, increasing the popularity of movement trade marks.

The first movement trade mark was registered in Australia in 2002. There are currently 99 registered movement trade marks in Australia.

A Welcome Proposal to Introduce a Grace Period Into the Australian Designs Act

Feb 15 2021

The Designs Amendment (Advisory Council on Intellectual Property Response) Bill 2020 (Bill), with important changes to designs law, is currently before Senate for consideration. It includes a much-anticipated change to implement a grace period that will allow designers to publish their designs before applying for design protection.

“Lettuce Turnip the Beet” Pun on T-Shirts Not Trademark Use, Ninth Circuit Affirms

Jan 22 2021

The owner of the trademark “LETTUCE TURNIP THE BEET” cannot prevent third parties from printing the mere phrase on t-shirts, tote bags, or other products. The U.S. Court of Appeals for the Ninth Circuit affirmed on January 20, 2021 that consumers are likely to purchase such products because they find the phrase aesthetically pleasing and not because they associate the phrase with any particular source. LTTB LLC v. Redbubble, Inc., 19-16464 (9th Cir. 2021).

Are Pre-Launch Statements Now Within the Range of the National Advertising Division?

Jan 12 2021

In a bold departure from its focus on allegedly misleading and deceptive statements in commerce, the National Advertising Division’s (“NAD”) decision in PLx Pharma, Inc. (Vazalore), Report #6912, NAD/CARU Case Reports (December 2020), arguably stretches its jurisdictional scope to include certain pre-national launch investor statements.

Category:Consumer & Retail