Vuitton, Zappa, Westinghouse Solar: Intellectual Property
LVMH Moet Hennessy Louis Vuitton SA (MC), expanding its fight against counterfeiters beyond courts, won a U.S. trade ruling that will help it keep knockoff Louis Vuitton handbags, luggage and accessories from entering the U.S.
The French luxury-goods maker filed the complaint last year, accusing a Chinese couple of setting up shell companies to sell counterfeit and knockoff handbags in the U.S. Notice of the International Trade Commission’s order was posted May 30 on the agency’s website.
Louis Vuitton’s use of an ITC complaint to protect a brand valued at $25.9 billion by Millward Brown Optimor’s 2012 BrandZ study may be emulated by other luxury-goods makers, said Michelle Marsh of New York’s Kenyon & Kenyon LLP, who specializes in fashion-related trademark issues.
The ITC, which investigates claims of unfair trade practices including violations of intellectual-property rights, more often handles patent-infringement cases.
Paris-based Louis Vuitton, named the world’s most valuable luxury brand for the seventh year, has sued companies that run websites and already works with customs officials and other law enforcement to seize counterfeit goods.
The order, which will go into effect in 60 days unless President Barack Obama overrules it on public policy grounds, directs Customs and Border Protection to turn away any products that are made in a way that is similar or copies the Louis Vuitton trademarks.
The case was originally filed at the ITC targeting companies set up by a couple whom Louis Vuitton claimed ran a counterfeiting ring using numerous shell companies. The couple and some of their companies reached settlement agreements, while other companies selling the counterfeits failed to respond to the complaint.
Louis Vuitton argued that it was entitled to a broad exclusion order that would cover any products infringing its trademarks because it was impossible to identify every company. The staff at the ITC, which acts as a third party in investigations in the public’s interest, supported the request.
Once customs receives the order, all ports in the U.S. will be notified with information that will help officials know what to look for, such as how the shipments may enter the U.S. and how to distinguish between the real and fake goods, said Therese Randazzo, director of IPR policy and programs division of Customs and Border Protection.
Companies that are turned away at the border can file a protest, and can even seek a ruling ahead of time to get clearance to enter the U.S., she said.
The case is In the Matter of Certain Handbags, Luggage, Accessories, and Packaging Thereof, 337-754, U.S. International Trade Commission (Washington).
Frank Zappa Trademark No Longer Valid in Germany, Court Rules
Frank Zappa’s family trust can’t use a trademark named after the late American rock star to prevent a German music festival from using the title “Zappanale,” the country’s top civil court ruled.
The trademark “ZAPPA,” which the U.S. based Zappa Family Trust filed in Europe and cited in the case, lost its protection because it wasn’t used within five years after registration, the court said in statement on its website.
The trust’s domain, “www.zappa.com,” is a website about Zappa, whose best-known works include the album “Apostrophe (’)” and the single “Don’t Eat The Yellow Snow,” and doesn’t constitute use of the trademark, the judges said.
The music festival has used the Zappanale title since 1990, according to the Karlsruhe-based court.
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Westinghouse Solar, Zep Settle U.S. Patent Dispute Over Panels
Financial terms weren’t disclosed. The settlement, which covers civil suits and a case pending before the U.S. International Trade Commission in Washington, extends to all customers, suppliers and licensees of the companies, they said in a joint statement.
Westinghouse Solar had accused Zep of infringing patents related to ways to reduce the amount of hardware and labor needed to install solar panels. The companies were vying to have their designs adopted by more installers to take advantage of the increased popularity of the $8.4 billion U.S. market for solar energy in homes and businesses.
Reducing installation costs is important because they have remained stable even as the price of solar panels dropped. That has created a barrier for some homeowners even with tax breaks, the Solar Energy Industries Association, a trade group based in Washington, has said.
Westinghouse, formerly Akeena Solar Inc., sought to ban U.S. imports of Canadian Solar Inc. (CSIQ) panels, mainly made by the Kitchener, Ontario-based company in China using the Zep design. The Westinghouse Solar design, known as Andalay, is used by Suntech Power Holdings Co. (STP)
The dispute dates to 2009, when Westinghouse Solar sued Zep in federal court. It filed the ITC case in October.
The case before the commission is In the Matter of Certain Integrated Solar Power Systems, 337-811, U.S. International Trade Commission (Washington). The civil cases are Akeena Solar Inc. v. Zep Solar Inc., 09cv5040, and Zep Solar Inc. v. Westinghouse Solar Inc., 11cv3800, both U.S. District Court for the Northern District of California (San Jose).
Apple’s Samsung Copy Case Hinges on Cheech and Chong Test
“Does it look like it, feel like it, smell like it?” U.S. International Trade Commission Judge Thomas Pender said yesterday at the beginning of Apple’s patent-infringement trial against Samsung, referring to a routine in which the comedy duo identified dog feces.
Apple contends Samsung’s phones and Galaxy Tab tablet computer copy designs on the look and front face of the iPhone, and they also infringe patents related to the user interface and headset plugs. The Cupertino, California-based iPhone maker is asking the ITC to block imports of Samsung products that violate Apple’s patent rights.
“Not content to copy the overall design and interface, Samsung has copied the smallest detail of the iPhone,” Apple lawyer Harold McElhinny of San Francisco’s Morrison & Foerster LLP told the judge in opening arguments in Washington. “Samsung copied our original and iconic design.”
Samsung is Apple’s biggest adversary in the iPhone maker’s challenge to the growth of devices that run on Google Inc.’s Android operating system. Together, Samsung and Apple made more than 49 percent of all smartphones sold worldwide in the first quarter, with Samsung edging out Apple in that period for the title of world’s biggest manufacturer of the devices, research analyst Gartner Inc. said May 16.
When the late Apple founder Steve Jobs unveiled the iPhone in 2007, he warned rivals that it was protected by more than 200 patents, McElhinny said. Apple’s inventions have been displayed in museum shows and even been the subject of a book, he said.
“Samsung cannot overcome the originality of Apple’s design,” McElhinny said.
Samsung, which has its own patent-infringement claims against Apple that are scheduled to come to another trial at the trade agency next week, contends it came up with its own ideas and designs through decades and more than $3.5 billion spent on research.
“Samsung has been in this industry, building and innovating to the point where Apple could enter the market,” Samsung lawyer Charles Verhoeven of Quinn Emanuel Urquhart & Sullivan LLP told the judge. “We are anything but an also-ran trying to copy Apple’s technology.”
Pender is scheduled to hear testimony through June 6 and release his findings Oct. 5. ITC Judge James Gildea, who is scheduled to hear Samsung’s case beginning June 4 through June 15, is expected to release his determination on Sept. 14. Apple’s infringement claims against Samsung over other patents is set for a July trial in federal court in San Jose, California.
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Megaupload Asks Court to Dismiss U.S. Criminal Copyright Case
Megaupload.com asked for dismissal of U.S. criminal charges that the file-sharing website illegally distributed copyrighted movies and music in a $175 million copyright conspiracy.
Megaupload Ltd., as a foreign corporation without offices in the U.S., can’t be prosecuted for violations of the country’s law, the company said in a filing May 30 in federal court in Alexandria, Virginia.
“In short, a corporation such as Megaupload cannot be brought within the jurisdiction of this court for criminal proceedings absent its consent,” the company said in court papers.
Megaupload.com and founder Kim Dotcom, 38, were indicted in what U.S. prosecutors dubbed a “Mega Conspiracy” involving the exchange of pirated film, music, book and software files. The company and Dotcom were charged with multiple criminal copyright and wire fraud counts, according to a revised indictment issued in February. Dotcom faces as long as 20 years in prison for each of the racketeering and money-laundering charges in the indictment.
Dotcom was arrested at his residence in New Zealand in late January and spent four weeks in jail before being released to await an extradition hearing, currently scheduled for Aug. 20.
A New Zealand court on May 29 granted Dotcom access to Federal Bureau of Investigation files that led to his arrest. Judge David Harvey in that case ruled that withholding the information could threaten Dotcom’s right to a fair trial, according to a copy of the ruling e-mailed to Bloomberg News. The U.S. government opposed the disclosure.
In a separate May 29 court ruling, German-born Dotcom was allowed to return to his leased luxury mansion in an Auckland suburb after his bail terms were relaxed.
Alisa Finelli, a spokeswoman for the U.S. Justice Department, declined to comment on Megaupload’s court filing.
The case is U.S. v. Dotcom, 12-cr-00003, U.S. District Court for the Eastern District of Virginia (Alexandria).
Canadian Community Colleges Take Access Copyright License
The Association of Community Colleges of Canada agreed to a license with Access Copyright to gain access to more than 22 million works, Access Copyright said in a statement.
Access Copyright, a nonprofit organization, handles Canada’s copyright licensing for publishers and authors.
The institutions will pay a royalty of C$10 ($9.68) per full-time equivalent student per year as opposed to the previous rate of 10 cents a page for coursepack copying.
The agreement will run through Dec. 30, 2015.
Canadian Brides to Pay More to Dance at Weddings Under Directive
Canadian brides will have to factor a little extra money into their wedding plans, following a new directive from the Copyright Board of Canada.
The rights organization certified new tariffs for live music performances at a wider range of events, including conventions, fairs, ice shows and weddings, according to a board statement.
Fees will be based on the size of the audience and the nature of the event, with weddings costing C$9.25 ($8.96) if fewer than 100 people are present and as much as C$39.33 for more than 500 attendees. The fees rise if dancing is permitted.
Parades where recorded music is played from floats will pay a fee of C$4.39 a float, with the whole event subject to a minimum fee of C$32.55 day.
The fee for events where admission is paid and music accompanies a fireworks display is 0.8 percent of the gross receipts from ticket sales, excluding taxes.
Tombstone Pattern Infringed by Cemetery, Designer Claims
A Toronto-based interior designer claims the design she created for her mother’s tombstone is infringed by operators of the cemetery where her mother is buried, the Toronto Star reported.
The Catholic Cemeteries Archdiocese of Toronto said the allegedly infringing pattern was created under contract by an outside design firm and that they jointly own the copyright, according to the newspaper.
The designer, Laura Abanil, told the Star that when she went to visit her mother’s grave she was unhappy that the design she said took her several months to complete was showing up on nearby grave markers.
Lawyers for the cemetery responded in a letter that the tombstone design required skill and judgment that Abanil doesn’t possess and proposed to settle the case by making a donation to the charity of her choice, according to the Star.
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