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In the world of intellectual property rights, there are cracks the law doesn’t reach—areas that do not sit squarely within copyright, patent, or trade secret law. Data is one of those areas. To protect their investments in data, businesses must mortar over the gaps. As part of our Technology Transactions Webinar Series, we will discuss the trowels for the job. The webinar will take place on Tuesday, July 23, 2019, 11:00 a.m. – 12:00 p.m. EDT.…
Continue Reading Webinar Series: IP Rights for Data—Mortaring Over the Cracks

On June 24, 2019, the U.S. Supreme Court rejected the prohibition against registering immoral or scandalous trademarks, holding that the ban against such trademarks violates the First Amendment by discriminating on the basis of viewpoint. In a 6-3 vote, the Justices, in an opinion written by Justice Kagan, explained their decision to invalidate the Lanham Act’s prohibitions on registrations that “[c]onsist of or comprise immoral … scandalous matter” (15 U.S.C. § 1052(a)), stating that “[t]he government may not discriminate against speech based on the ideas or opinions it conveys.”…
Continue Reading U.S. Supreme Court Strikes Down Ban on Immoral or Scandalous Trademark Registrations

On 11 October 2018, the Music Modernization Act (“MMA”) was signed into law. It effects a sweeping overhaul of the compulsory mechanical license mechanism set forth in 17 U.S.C. §115—among other significant changes. While many in the industry have been closely following the bill as it worked its way through the legislature, the following provides an overview of key terms regarding the mechanical licensing procedures under the new law that every…
Continue Reading The Music Modernization Act: What Licensee Services Need to Know About Its Implementation

As automobiles are becoming part of the Internet of Things, “connected” technologies are increasingly deployed to enhance the safe operation of autonomous vehicles. These “intelligent” vehicles rely on an ecosystem of proprietary and third-party components to gather, analyze and react to data from both inside and outside the vehicle. In order to reduce costs, accelerate development and enhance the interoperability of connected technologies and applications, automakers …
Continue Reading Evaluating Open Source Software to Build a Connected Autonomous Vehicle

Pursuant to the “license barrier” rule in Sec. 4j German Income Tax Act, newly introduced as of 1 January 2018, arm’s length business expenses of a company incurred for the right to use intellectual property (“IP”) and certain other rights are not fully deductible from the income tax base, if (i) the corresponding licensing income of the licensor is taxed at a rate lower than 25% (“Preferential Taxation”), (ii) this low tax rate is not the standard tax rate applicable in the respective jurisdiction …
Continue Reading Limited German Tax Deductibility of Low-Taxed License Payments Made to Related US Entities

On 22 March 22 2017, in the case of Star Athletica LLC v. Varsity Brands, Inc., et al, No. 15-866, the Supreme Court of the United States ruled, in a 6-2 decision, that design elements of a cheerleading uniform may be protected under copyright law, even though the uniform has a utilitarian function.

It is a well-known tenet under United States copyright law that apparel is outside the scope of the Copyright Act of 1976, which bars protection for works of authorship that possess utilitarian functions.  However, §101 of the Copyright Act carves out a limited exception, namely that “pictorial, graphic or sculptural features” of the design of a useful article are entitled to copyright protection if they “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

Star Athletica v. Varsity Brands involves copyright infringement of cheerleading uniforms designed by Varsity Brands, considered to be the leader in the market, copied by its rival, Star Athletica.  The majority opinion, written by Justice Thomas, sided with Varsity Brands, and ruled that the two-dimensional pictorial design, consisting of chevron, zigzags, stripes and colorful shapes, applied to Varsity Brands’ uniforms was deserving of copyright protection under §101 of the Copyright Act.

This case has elicited microscopic scrutiny by the fashion industry.
Continue Reading Supreme Court of the United States: Cheerleading Uniforms Can be Copyrightable: Star Athletic LLC v. Varsity Brands, Inc.

The question of whether a sequence of exercises, such as yoga poses or dance moves, can be copyrighted has occupied the attention of international courts, scholars and copyright offices for some time. In late 2015, the issue received some media attention when yoga guru Bikram Choudhur tried to gain a US copyright in a signature sequence of yoga poses but failed before the Court of Appeals for the Ninth Curcuit. Despite the effort of international copyright conventions, the question of copyrightability essentially remains a matter of national law.
Continue Reading The Copyrightability of Yoga Poses, Dance Moves and Exercise Routines

According to the code of ethics of the International Association of Culinary Professionals, a culinary professional must not knowingly “appropriate […] any recipe or other intellectual property belonging to another without the proper recognition.” And, in addition to the ethical, there are legal issues. While copying culinary creations might not sound like a big deal to millennial food bloggers and vloggers, lawsuits—sometimes with high stakes—have been filed over (mis)appropriated recipes. But whether claims to a signature dish will hold up in court is a different question and will likely depend on the scope of protection of the applicable copyright law(s).
Continue Reading Your IP Valentine: Can Recipes Be Protected by Copyright?

On 2 December 2016, President Obama issued an administrative order to prohibit the proposed acquisition of a controlling interest in Aixtron SE (Aixtron) by Grand Chip Investment GmbH (GCI), a German company partially owned by Fuijan Grand Chip Investment Fund LP, a Chinese partnership with some Chinese government ownership. It was only the third time in history that a US president has formally blocked a proposed foreign acquisition of a US business due to national security concerns identified during the review process by the Committee on Foreign Investment in the United States (CFIUS).
Continue Reading US President Blocks Proposed Chinese Acquisition of German Semiconductor Company on National Security Grounds

On 15 November 2016, the US Federal Trade Commission (“FTC” or the “Commission”) issued an “Enforcement Policy Statement” (“Policy Statement”) to provide guidance about its enforcement policy on marketing claims for over-the-counter (“OTC”) homeopathic remedies. The FTC concluded that marketing claims that OTC homeopathic products have a therapeutic effect (beyond placebo) lack a scientific basis. Consumers were therefore likely to be deceived by labels that do not disclose the lack of “adequately substantiated evidence” that ‎those products have the claimed treatment effects.
Continue Reading US Federal Trade Commission Wants Marketers of Homeopathic Remedies to Disclose Lack of Scientific Evidence