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Belgacom, Google, Sears, Neo Material: Intellectual Property

Belgacom SA’s Internet-service provider Scarlet can’t be forced by a national court to block users from illegally sharing music and video files, an adviser to the European Union’s highest tribunal said.

“EU law precludes a national court from making an order, on the basis of the Belgian statutory provision,” that requires an Internet-service provider to install a system for filtering communications, Advocate General Pedro Cruz Villalon of the EU Court of Justice said in a non-binding opinion yesterday. The Luxembourg-based EU tribunal follows such advice in most cases.

A Belgian court last year sought the top EU tribunal’s guidance on whether forcing an ISP to stop illegal file sharing on its network is in line with the 27-nation bloc’s rules. Belgian music-copyright group Sabam started the legal fight over the use of so-called peer-to-peer software for file sharing.

Belgacom, the largest telephone company in Belgium, won antitrust approval to acquire Scarlet in 2008. Scarlet is appealing a June 2007 Belgian court order to “make it impossible” for users to breach copyright laws, saying it would entail violating customers’ privacy rights.

Sabam said once the court has ruled on the case it would “be analyzed very carefully” in all EU nations because it would impact other pending cases. The group, which represents authors and musicians, said ISPs aren’t properly compensating artists while using their work to promote subscriptions.

“Although the advocate general is very sensitive to the copyright breaches” on the Internet, the priority remains fundamental rights, said Benoit Van Asbroeck, a lawyer at Bird & Bird LLP in Brussels who represented Belgacom in the case. “No private rights can touch and jeopardize this.”

The case is C-70/10, Scarlet Extended SA v. Societe Belge des auteurs, compositeurs et editeurs (SABAM).

Google’s YouTube Sets up User Copyright-Education Program

Google Inc.’s YouTube video-sharing site posted a new set of rules aimed at preventing users from committing copyright infringement.

YouTube also set up a video tutorial on copyright and a new copyright help center. Users for whom YouTube received a copyright-infringement notice will be required to attend “YouTube Copyright School” that includes both a tutorial and a test that must be passed before more content can be uploaded.

YouTube also said it would remove “strikes” against users accounts “in certain limited circumstances,” including completion of the tutorial and a record of good behavior over time.

New Zealand Puts Onus on File Sharers to Prove Innocence

New Zealand’s parliament passed a new law prohibiting the illegal sharing of files by Internet users that puts the onus on those accused to prove their innocence, while not allowing them to hire lawyers.

Lawmakers gave a third and final reading to the so-called Copyright (Infringing File Sharing) Amendment Bill yesterday. A breakdown on the vote wasn’t immediately available from the parliamentary information service.

The bill “aims to provide copyright owners with a fast-track alternative to existing remedies,” the Commerce Committee said in a recommendation to pass the legislation. “We have attempted to strike a balance between the rights of copyright holders to have their intellectual property rights protected, and the reality that the Internet has now allowed for greater access to copyrighted work through file sharing.”

Under the law, scheduled to take effect Sept. 1, copyright owners will be required to send evidence of alleged infringement to Internet Service Providers, who would then issue warnings to the account holder. If the warnings are ignored, the copyright owners can file a claim with the Copyright Tribunal, which can issue fines of as much as NZ$15,000 ($12,000) for each violation.

The five-member tribunal will generally make a decision based on written submissions and must consent to a hearing, if one is requested. If the tribunal agrees to hold a hearing, representatives won’t be allowed except for specified cases, such as that of a corporation that can be represented by an officer or an employee.

Representatives may not be lawyers, according to the legislation, unless the tribunal grants permission.

An infringement notice will allow the tribunal to presume that illegal file sharing occurred unless the account holder provides evidence or reasons why it shouldn’t be considered so, according to the law.

The new law tightens requirements for the suspension of Internet services of account holders, requiring copyright holders to get a court order. A judge can order the suspension of the Internet service for as long as six months.

For more copyright news, click here.


Sears Claims ‘DieHard’ Mark Infringed by RockHard Spray

Sears Holding Corp.’s Sears Roebuck unit sued a seller of sexual-enhancement products for trademark infringement.

In the complaint filed April 13 in federal court in Chicago, Sears accuses RockHard Laboratories LLC of Alpharetta, Georgia, of infringing the DieHard trademark that Sears uses for batteries.

Sears objects to RockHard’s “Die Hard” sexual enhancement spray, and said it filed notice with the U.S. Patent and Trademark Office that it opposed a RockHard trademark application.

According to the complaint, RockHard filed an application in August to register “Die hard. Live it. Love it. Own It.” as a trademark to be used for a numbing agent.

After receiving a cease-and-desist letter from Sears, RockHard said it would quit using the disputed mark, according to court papers. Sears complains that the company is still using “Diehard,” including “” on their product packaging and in advertisements.

Sears, based in Hoffman Estates, Illinois, says the public is confused and any association of the DieHard mark with the RockHard product would “diminish, blur and tarnish” the trademark.

The retailer asked the court to transfer it the domain name, and for an order barring future infringement. Additionally, Sears seeks money damages, attorney fees and litigation costs, and an order for the destruction of all infringing products and promotional material.

RockHard didn’t respond immediately to an e-mailed request for comment.

Sears is represented by John F. Gibbons, Kevin J. O’Shea and James J. Lukas Jr. of New York’s Greenberg Traurig LLP.

The case is Sears Roebuck & Co. v. RockHard Laboratories LLC, 11:11-cv-02483, U.S. District Court, Northern District of Illinois (Chicago).

For more trademark news, click here.


Patent Office Overhaul Approved by House Judiciary Committee

The House Judiciary Committee yesterday approved a measure that would alter how patents are issued and give the U.S. Patent and Trademark Office new power to control the money it collects in user fees.

The proposal, known as the America Invents Act and sponsored by House Judiciary Committee Chairman Lamar Smith, a Texas Republican, was approved 32-3 and now moves to the full House. The Senate passed similar legislation in a 95-5 vote on March 8. If made law, it would mark a fundamental change in how patents are reviewed and the biggest revision to U.S. patent law since 1952.

For more patent news, click here.

Trade Secrets/Industrial Espionage

Neo Material Wins International Magnetics Trade Secrets Case

Neo Material Technologies Inc., a Canadian producer of rare earths and other compounds used in high technology products, said it won a trade-secrets case in Thailand.

The Central Intellectual Property and International Trade Court of Thailand ruled that International Magnetics Technologies Co. and three of its officials must stop using Toronto-based New Materials’ trade secrets, the company said in a statement.

Additionally, International Magnetics must pay Neo Material 20 million Thai baht ($664,000) and hand all infringing machinery, know-how and certain magnetic powder products to the Canadian company.

To ensure compliance, the court said International Magnetics is required to pay 1 million baht a month for any infringing acts occurring after the judgment date.

Fracturing Fluid Website Online, Won’t Disclose Trade Secrets, a website aimed at giving the public information about the fluids used to create fractures in rocks, is online.

The website supplies information about the chemicals used in the fracturing fluids used in oil and natural-gas exploration and recovery. The composition of such fluids, because of their potential to enter groundwater, is a concern for environmental and health officials.

In the past, many companies declined to disclose the list of chemicals in such fluids, claiming their composition is a trade secret.

The new site is a joint project of the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission. The chemicals disclosed at the site are all that would appear on a Material Safety Data Sheet mandated by regulations of the Occupational Safety and Health Administration.

According to the website, companies can still decline to disclose some of the chemicals in their fluids.

U.S. Senator Robert Casey, a Democrat from Pennsylvania, said the information on the site isn’t sufficient. He has introduced legislation to amend the 1974 Safe Drinking Water Act to require oil and gas companies to disclose proprietary data about their fracturing fluids to medical professionals if the information is needed for medical treatment.

IP Moves

Dow Lohnes Hires Former Howrey Patent Litigator David Long

Dow Lohnes PLLC hired David Long for its intellectual-property practice, the Washington-based law firm said in a statement yesterday.

Long, a patent litigator, joins from now-defunct Howrey LLP. He previously practiced at the San Francisco firm now known as Pillsbury Winthrop Shaw Pittman LLP. Additionally, Long served as a judicial clerk in the Court of Appeals for the Federal Circuit, the Washington-based court that hears appeals of patent cases.

He has represented clients in patent disputes in federal trial and appellate courts, including the U.S. Supreme Court. His clients’ technologies have included complex electrical circuits, Voice over Internet Protocol, wireless communication systems, signal processing systems, memory devices, integrated circuit design, medical products and computer software.

Long has an undergraduate degree and a master’s degree in electrical engineering from Auburn University and a law degree from the University of Alabama.

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