On IP rights and the right to be forgotten

Submitted by leslynowak on Tue, 10/01/2019 - 12:44
 
pacman

New week, new news. Stores are starting to sell Halloween goods (even Christmas…), it’s getting colder and the world of IP keeps on going. What a comforting thought for this week!

The right to be forgotten (but not everywhere)

As you all know, a few years back, the CJEU recognized our right to be “forgotten” or for our name to be removed from search engine’s results under certain conditions. What is the scale of said right? In its recent judgment the Court delimited the width of this right by stating that the search engine’s obligation to delist, when the request arises from one EU Member State, is limited to the versions corresponding to EU Member State (hence, your name could still be listed under the US version of the search engine, for example). Regarding non-EU versions of its site, the only requirement for the search engine is to make sure to put in place measures to “discourage” users from accessing the foreign version. Be aware of what you share on the internet!

Pac-Man saga

I think we are all familiar with Pac-Man’s legacy (Mr, Ms and baby). AtGames, specialized in manufacturing retro game consoles, launched a version of Ms. Pac-Man without the proper license from Namco, the legitimate maker of the Pac-Man family. Add to this that they seemed to have published a different and worst version of the classic videogame, that has the whole Pac-Man community upset and you have a damaged reputation and a recipe for disaster. Not only have they published an unauthorized version of the most famous yellow female pill popping character, but they apparently provided false information to Walmart and GameStop regarding the legitimacy of its creation.

The claim (false advertising, unfair competition and copyright infringement) is now pending before the Courts in California. Let’s see if Ms. Pac-Man can overcome the big boss.

Music industry again, but different

Ever heard of The Clash? I’m sure you have. The group (not really THE GROUP, but the UK company that owns the Clash trademark: Dorisimo Ltd.) is now suing the tennis company “Wilson” for trademark infringement for producing a line of tennis rackets called “Clash”.

You can’t own a word like clash, can’t you? Well no. But here is the basis for their argument: the group has licensed its songs in favour of numerous tennis events and has licensed a Clash brand line of tennis sneaker produced by Converse. Due to its presence in the tennis world, the Clash considers that introducing a line of rackets called “clash” would most likely confuse consumer and lead them to believe that the group is somehow related to this new creation. Dorisimo requires the Court to: cancel Wilson’s trademark, claim for damages and all profits derived from the Clash line, destruction of the Clash line rackets and injunction against Wilson, impeding them from using the world “Clash” every again in the future.

Vespa fighting for its rights

Piaggio, the Italian creator well known for its Vespa, filed, back in 2014, before the EUIPO an application for a declaration of invalidity of a scooter’s design registered before the same office by a Chinese company (Zhejiang Zhongneng Industry Group). Piaggio considered that the design of the Chinese scooter lacked novelty and singularity in comparison to its earlier Vespa LX design. Piaggio also claimed that its “Vespa LX” design is protected through an unregistered three-dimensional trademark and through copyright in France and Italy. The EUIPO maintained the validity of the design in its decision in 2015, decision that was later confirmed in 2018.

The case went up to the General Court of the EU, that confirmed a few weeks ago that the design of the Chinese company did not infringe Piaggio’s earlier design. In a nutshell, the decision is as follows:

  • Zhejiang’s design is actually different from Piaggio’s, since the design of the first one is dominated by angled lines while in the Italian one there is a predominance of rounded lines.
  • Due to the existing differences, there is no risk of confusion between the two scooters, hence no violation of the unregistered three-dimensional trademark.
  • Copyright covers the distinctive shape of the Vespa (its round, feminine and vintage look), shape and overall look that has not been copied by the Chinese company. Hence, no infringement of Copyright either.

Google will not abide

Do you remember our publication on the New Copyright Directive? Well, Google just announced that it refuses to pay press publishers in France (we can assume that not only in France, but in all EU Member States) when displaying their content and will, instead, change the way in which articles appear in search results by removing any snippets or excerpts from the article. France is the first country to have transposed the right for press publishers established in article 15 of the EU directive (right that should enter into force in October). Let’s see what happens, but Germany was the first country to introduce a right in favour of publishers, publishers that then decided to give away their articles for free to Google after the traffic on their websites suffered a massive drop.

The US Navy and Bitmanagement, a tail of misunderstandings

Back in 2012, and after a one year test, the US Navy decided to purchase BS Contact Geo’s Software licenses from Bitmanagement. When the Navy bought the licenses,  it became aware that a “mass” installation of the Software was not possible according to the original wording of the license. They then proceeded to negotiate with the same reseller (never the original company directly) and finally bought what they thought would be a legitimate authorization. The Navy, in good faith, then began to install said Software across all its network (involving approximately 550.000 computers).

Bitmanagement understood that this was against the clauses included in its license agreement, therefore filling a claim for massive copyright infringement before the US Court of federal claim. After a three year investigation, and following a one week trial in Washington, the Court has dismissed the copyright infringement claim against the US Government. Indeed, according to all the evidences provided, Bitmanagement made a custom license for the Navy and was repeatedly informed about the intended use and never opposed to said use in its communications with the Navy. 

That is all we have to report on for this week. Have a very nice day and see you next week!

Interesting links:

 

"Pac-Maniac." by Siddharth Bandhu is licensed under CC BY-NC-ND 4.0