Entertainment & Arts – Page 3

Neoprene Tote Bags: Watertight Not Copyright

Dec 24 2020

In the recent judgment State of Escape Accessories Pty Limited v Schwartz [2020] FCA 1606, Justice Davies of the Federal Court of Australia found a fashionable neoprene tote bag was not a “work of artistic craftsmanship” and therefore not an “artistic work” for the purposes of the Copyright Act 1968 (Cth) (the Act). Since the Court found that copyright did not subsist in the State of Escape bag (the Escape Bag), there was no finding of copyright infringement.

Don’t mess with Ferrari: the Prancing Horse legal drama

Nov 06 2020

Use of Ferrari’s trade mark in a fashion show or on social media requires consent. This is the lesson we assume Philipp Plein has recently learnt following a couple of legal defeats before the Italian Courts that ruled in favour of Ferrari.

In a ruling issued by the Court of Genova last June, the Court ruled in favour of Ferrari for the illegitimate use of Ferrari’s trade marks on Plein’s Instagram account. The designer on that occasion posted several pictures as well as Instagram stories showing some of his clothing line with Ferrari’s trade marks in the background. Ferrari successfully argued that in those shots Philipp Plein was unlawfully appropriating the positive image and reputation of the well-known car company by using its trade marks for promotional purposes.

In another recent case, the Court of Milan ordered Plein to remove from its website, social media, and other online platforms all the videos and images showing Ferrari cars and trade marks. The Court also ordered the payment, in favour of Ferrari, of €300,000 in damages plus legal fees as well as the publication of the decision in two national newspapers. Furthermore, in the event in which that Philipp Plein would not promptly remove the contested images and videos representing Ferrari cars and trade marks, it will have to pay a penalty of €10,000 for each day of delay in the removal of the infringing images and videos. To view the decision, click here.

UK Advertising Regulator makes first ever ruling on disclosures required for commercial marketing via a TikTok video

Nov 05 2020

A TikTok post on an Emily Canham’s account, a beauty blogger and YouTube star, is the first TikTok video found to be in breach of the Advertising Standards Authority’s (ASA) requirement for disclosure in the UK (see here).

The post, which featured a video of Emily Canham using a branded hairdryer and straighteners, included a caption alongside the video stated:

“hiii just a lil psa there’s 20% off the [Brand] website TODAY ONLY with the code EMILY … #fyp #foryourpage“.

The brand in question had entered into an agreement with Ms Canham, which required Ms Canham to post a number of social media posts while at a music festival. The music festival was cancelled as a result of COVID-19. However, the contract was varied and still required several social media posts featuring a certain promotional code.

It was submitted to the ASA that the TikTok was created without the oversight or approval of the brand, and did not form part of Ms Canham’s contract. Additionally, both Ms Canham and the brand pointed to the fact that she had not been compensated for the promotional code featured in the TikTok video.

Air France restrained from using song that infringes “Love Is In The Air”

Nov 05 2020

In April, we wrote about the judgement Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535 (Decision), in which Glass Candy and Air France were found to have infringed the copyright in the well-known 1970s hit song “Love is in the Air” (Love).

Now, in the recent judgement Boomerang Investments Pty Ltd v Padgett (Scope of Injunction) [2020] FCA 1413, the Federal Court of Australia has finalised the injunctive orders necessary to give effect to the Court’s earlier conclusions on the issue of liability in the Decision, amongst other matters.

What an awful racket… Acoustic product trade mark case provides opportunity for brands being piggy-backed to drive search traffic

Nov 04 2020

An interesting recent decision by the Intellectual Property Enterprise Court (IPEC) on an unusual set of facts may provide an opportunity for brand owners to prevent unauthorised third parties from piggy-backing off a trade mark to drive traffic to their competing sites or product offerings. Uniquely, this has been found in circumstances which do not amount to traditional “bait and switch” or passing off and where consumers are not confused about the origin of the goods.

Deep fakes, inventorship and ethics – WIPO revised issues paper on Artificial Intelligence

Sep 30 2020

One thing is clear about artificial intelligence (AI) and intellectual property (IP) at the moment: there are more questions than answers. Who should be author? Who is responsible for a work’s liability? What about moral rights? Is a computer programme capable of making an ‘inventive step’ or forming an ‘intellectual creation’ normally reserved for humans? And for those Matrix fans – should we let machines make decisions for us, lest we become seen as the planet’s true virus?

In September 2019, the World Intellectual Property Organisation (WIPO) launched a much-needed conversation on IP and AI, and consulted with member state representatives on the potential impact of AI on IP. Over the course of the consultation, WIPO received more than 250 responses from a wide range of global stakeholders.

Reputation and likelihood of confusion – it’s all a bit of a Messi…

Sep 21 2020

CJEU determines no likelihood of confusion between footballer’s “Messi” figurative mark and earlier MASSI mark.

Whilst debate will continue to rage as to whether Messi or Ronaldo is the world’s best male football player, the Court of Justice of the European Union (the “CJEU”) has ruled that Argentine superstar can register his name as a trade mark after an almost decade long legal battle.

In an interesting decision for trade mark fanatics, irrespective of their interest in football, the CJEU stated that Lionel Messi’s reputation could be taken into account, without any evidence of said reputation being provided, when weighing up whether the public would be able to determine the uniqueness of Messi’s mark.

Court finds ‘flagrant’ copyright infringement of ‘Love is in the Air’

May 04 2020

In its recent judgment (Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535), the Federal Court of Australia has found that an American electronic musical duo copied the celebrated Australian disco song ‘Love Is In The Air’. The decision confirms that the sound of lyrics as sung forms part of a musical work. Furthermore, a short sung lyric with attending music can be the ‘essential air’ of a song.

While determining only “modest” levels of copyright infringement occurred and dismissing most claims for damages, Justice Perram described the copying as “flagrant” and indicated there will be a further hearing to assess damages.

Is it a bird? Is it a plane? No, it’s an infringement of a reputable mark!

Apr 26 2020

The EUIPO recently upheld an opposition by DC Comics to protect its reputable SUPERMAN mark from a similar sign, despite the applicant’s sign covering a different class of goods. The decision confirms that, for there to be a sufficient risk of injury under Article 8(5) EUTRM, the public must perceive a ‘link’ between the sign and the earlier mark. The mere fact the two marks cover different classes of goods and services is not inherently a barrier to such a link. Here the link arose largely from the earlier mark’s reputation, and commercial connections between the two classes in question.

Some will see the EUIPO as swooping to the rescue to protect the hard-earned reputations of brands; others will see this as an unreasonable expansion of rights beyond a mark’s designated classes, and a Kryptonite to legitimate activity.

Cofemel’s first UK outing – The wooly world of copyright and designs

Feb 03 2020

In Response Clothing Ltd v The Edinburgh Woollen Mill Ltd [2020] EWHC 148 (IPEC), the Intellectual Property Enterprise Court (“IPEC”) has issued the first UK decision made since the Court of Justice of the European Union’s controversial decision in Cofemel (C-683/17).

Why does this matter?
The Cofemel decision indicated that there is a harmonised concept of what constitutes a ‘work’ under copyright law throughout the EU, which is not restricted by any defined categories and should not take into account any aesthetic considerations.

Accordingly, there has been much discussion about the UK’s closed list of copyright protectable subject matter under the Copyright, Designs and Patent Act 1988 (“1988 Act”) and the concepts of ‘artistic works’, ‘sculptures’ and ‘works of artistic craftsmanship’ under section 4 of the 1988 Act and whether these are incompatible with EU law. Previous prominent Court decisions such as the Lucasfilm decision in the Stormtrooper Helmet case have also been thrown into question.

This decision is the first time that a UK Court has had to deal with this apparent incompatibility.

Tag:Entertainment & Arts