Court Decisions – Page 14

Australian ISPs Ordered to Hand Over Customer Details in P2P Copyright Action

Apr 09 2015

Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317

In November 2014, IP Law Watch reported on attempts by the rights holder of the film Dallas Buyers Club to compel Australian ISPs to disclose the identities of BitTorrent users who allegedly shared copies of the film.

On 7 April 2015, Justice Perram of the Federal Court of Australia ruled in favour of Dallas Buyers Club LLC and Voltage Pictures LLC, ordering six ISPs to disclose the details of 4,726 customers.

The judgment has been widely reported in the Australian media as a landmark decision and a game changer in the battle regarding online piracy. In fact, the kind of order granted by Justice Perram is far from revolutionary. For many years, civil procedure rules at both state and federal levels have enabled a party to seek orders requiring a third party to produce documents or give evidence as to the identity of a prospective respondent. There are decisions going back as far as the 1970s in which this kind of preliminary discovery order has been granted (see for example Exley v Wyong Shire Council (10 December 1976, Master Allen, unreported) and Stewart v Miller [1979] 2 NSWLR 128).

Yahoo! Vs. Reti Televisive Italiane S.p.a: A Turning Point in ISP’s Liability in Italy?

Apr 07 2015

On January 7, 2015 the Court of Appeal of Milan (Court of Appeal) rendered a relevant judgment on a dispute involving Yahoo! Italia S.r.l and Yahoo! Inc. vs. Reti Televisive Italiane S.p.A. (RTI), one of Italy’s major broadcasters. RTI sued Yahoo! Italia S.r.l. and Yahoo! Inc. (Yahoo!) because of the reproduction of RTI’s copyrighted videos on the Yahoo! Video-sharing platform (Yahoo! Video Italia). RTI requested the removal of such videos and the implementation by Yahoo! of a filtering and blocking system in order to detect and prevent any infringement of copyright. The Court of Appeal concluded that the hosting provider is only exclusively responsible if it takes active part in the uploading activity or is aware of the unlawful content or use of the material and does not erase them.

Roger Maier and Assos of Switzerland SA v ASOS plc and ASOS.com Limited

Apr 02 2015

In a long-anticipated decision, the Court of Appeal of England and Wales (Court of Appeal) on Wednesday held, by 2-1 majority, that use of the ASOS brand by the popular online clothing retailer was defensible under the ‘own name’ defence in Community trade mark law.

The decision, which reversed the findings of the judge at first instance, will be appealed to the Supreme Court (the highest court in England and Wales) by the Claimants, who own the successful ASSOS cycling clothing business and are the proprietors of a Community trade mark for the ASSOS word mark, which has been registered since 2005.

United States Supreme Court Holds That Trademark Trial and Appeal Board Determination of Likelihood of Confusion May Bind Subsequent Court Infringement Case

Mar 26 2015

On March 24, 2015, in a case covered here in a previous posting (On Tap at the U.S. Supreme Court: An Important Trademark Case, September 3, 2014), the United States Supreme Court (Supreme Court) held that a determination of likelihood of confusion by the Trademark Trial and Appeal Board (TTAB), in an administrative tribunal which determines registerability, may preclude further litigation of the issue in a subsequent infringement case. In B&B Hardware, Inc. v. Hargis Industries, Inc., the Supreme Court reversed a decision by the Eighth Circuit Court of Appeals, which had determined that a TTAB finding would not bind an infringement court because, among other reasons, the factors considered by the TTAB were not identical to those considered by the trial court. The Supreme Court, though, by a 7-2 vote, held that when the ordinary elements of issue preclusion are met and where the issues in the two cases are identical, the ruling by the agency tribunal controls. The Supreme Court also found that even though the specific factors considered in a likelihood of confusion analysis may vary somewhat, they are not ‘fundamentally different’ and that the ‘likelihood of confusion’ standard is the same for registration and infringement purposes.

Do not use Audrey Hepburn’s Iconic Elements

Mar 24 2015

That’s what the Court of Milan has stated on January 21, 2015 (judgment no.766/2015)!

This dispute originated with the use by an Italian company, Caleffi S.p.A. (Caleffi), of an image recalling the famous scene from ‘Breakfast at Tiffany’s’ in which the actress, well-dressed in black, wearing sunglasses and pearls, was staring into the window of Tiffany’s Fifth Avenue boutique. Caleffi was promoting the prize contest ‘The dream diamond’. Audrey Hepburn’s heirs sued Caleffi and brought before the Court of Milan (Court) an action for damages based on the claimed violation of article 10 of the Italian Civil Code, on the use of the images of a person, and article 96 of Italian Copyright Law, on the protection of portraits.\

Dancing Not Required: District Court Denies Amgen’s Bid for Preliminary Injunction, Finds BPCIA “Patent Dance” Optional

Mar 23 2015

The biologics industry has been closely monitoring Amgen Inc.’s (“Amgen’s”) lawsuit against Sandoz Inc. (“Sandoz”) for refusing to engage in the BPCIA’s “patent dance” with respect to Sandoz’s application for Zarxio®, a biosimilar of Amgen’s Neupogen® (filgrastim), to see what, if any, guidance the district court would provide on the interpretation of the BPCIA. See Left without a Partner: Amgen Sues Sandoz for Refusing to Dance in Accordance with BPCIA Patent Procedures. This litigation has sparked additional interest in view of FDA’s recent approval of Zarxio®, which has led to industry-wide speculation regarding the litigation’s potential impact on Sandoz’s ability to market its now approved biosimilar. See FDA Approves First Biosimilar: Sandoz’s Zarxio®. The District Court of the Northern District of California has now provided an answer, siding with Sandoz’s interpretation that the BPCIA’s patent dance provisions are optional and the 180 day notice provision does not require licensure, and denying Amgen’s request for a preliminary injunction.

To read the full alert, click here.

After Nine Year Battle, Appeals Court Upholds US$540,000 Award to Sculptor for Use of Memorial Images on U.S. Postage Stamp

Mar 05 2015

A long litigation battle by sculptor Frank Gaylord against the U.S. government has resulted in the confirmation of an award of more than US$540,000. In 1990, Mr. Gaylord won a competition to work on a federal memorial to veterans of the Korean War (Memorial), which had been authorized by the U.S. Congress. Ultimately, the Memorial comprised 19 stainless steel statues, designed to represent a platoon of soldiers in formation on the ground. The Memorial was completed, installed, and opened to the public in Washington, DC, in 1995. Mr. Gaylord filed a number of copyright registrations, covering the various statues. Read More

High Court to Consider Whether Isolated Genetic Material is Patentable in Australia

Feb 19 2015

On 13 February 2015, the High Court of Australia (High Court) heard and granted Yvonne D’Arcy’s application for special leave to appeal the Full Federal Court of Australia’s (Full Federal Court) decision in D’Arcy v Myriad Genetics Inc [2014] FCAFC 115.

The unanimous decision of the five-judge bench of the Full Federal Court was that Myriad Genetics Inc’s patent claims directed to particular isolated BRCA1 genes were patentable subject matter in Australia.

How Much Attention Does the Average Consumer of Ice Cream pay to Packaging?

Feb 10 2015

Ruling of the European Union General Court

On 25 September 2014, the European Union General Court (EU General Court) handed down a ruling (case ref. T-474/12) in the case of an invalidation of the right to a three-dimensional Community trademark created by the form of two packaged ice cream cups.

Shape Trade Marks Which Solely Protect Function are not Registrable in Europe

Feb 05 2015

Ruling of the European Court of Justice

The companies Hauck and Stokke, known on the market for children’s accessories, were engaged in a dispute over high chairs. Hauck moved for the invalidation of a trademark registered by Stokke in the Benelux countries. The designation had the form of a high chair for children. The chair was traded on the market under the name Tripp-Trapp.

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