Good day everyone. We are bringing you last week's news of the IP world.
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Super Piracy Smash
Super Mario is on fire. Nintendo has been able to secure a number of K.O against four website that were promoting tools to circumvent protection measures against piracy installed in their newest Nintendo Switch. This was achieved by sending Mario to UK’s High Court and requesting the Court to order 5 Internet Service Providers (ISPs) to block the following websites: team-xecutor; sx-xecutor; sxflashcart and xecuteros. What were the grounds? You might think Copyright infringement. Nice try but no. Nintendo based its claim on Trademark infringement, due to the fact that these websites were using the Trademark without Nintendo’s permission in order to promote circumvention devices that would then allow access to Copyright infringing content.
Nintendo has had it with piracy
After its win in the UK, Nintendo has now filed a lawsuit against another pirate site “RomUniverse”. Just to give you an idea of the business, Rom offers 1 free weekly download of pirated content (videogames, e-books and movies) but they also sell you memberships if you want to mass download in one go. The complaint was filed in California on the basis of mass Copyright and Trademark infringement, given that the site offers downloads for almost all Nintendo’s videogames. At a rate of 150,000 $ per infringing game and 2,000,000 $ per Trademark infringement… I’ll let you do the math regarding the amount of total damages.
Are beauty dupes legal?
Ever heard of James Charles? He is what we call a “beauty influencer” and, as such, he has been awarded the opportunity to collaborate with a well-known makeup brand called Morphe. This collaboration resulted in the creation of an eye shadow palette that costs 39 $ for 39 shades. Wet n Wild, another well-known makeup brand recently launched its “40 palette”, a palette that allegedly copied Charles’ original palette (apparently the palette will cost 29 $).
Here a side by side comparison:
This image belongs to Morphe This image belongs to Wet N Wild
Besides the Twitter fuse between the two of them (Charles posted accusing them of copying the exact shade & layout without even trying to hide it; Wet N Wild very sassily responded “we certainly didn’t copy the price”), we have to admit that dupes are actually quite a common phenomenon. To brand’s despair, most dupes are legal since they usually do a pretty good job to not cross the line between inspiration and infringement. In this case, James Charles doesn’t seem to have a case. Indeed, the shades are not the same, the layout is different and the packaging is definitely different, hence no confusion on the consumer side. What are your thoughts on the subject?
What are the relevant requirement for Copyright protection?
The CJEU has been awarded the possibility to answer this question addressed to him by the Portugal Supreme Court.
After careful legal considerations and taking into account settled case law, the Court came to the conclusion that national laws cannot go beyond the originality criterion (original meaning the result of free and creative choices reflecting the personality of the author). Therefore, they cannot require a design to create a distinct and noticeable visual effect from an aesthetic point of view in order to grant said design Copyright protection. Why? Because the aesthetic effect of a design or an object is a subjective concept, dependent on the eye of the beholder.
And that is all for this week!
- An interesting article from the New York Times on the new “Día de los muertos· Barbie https://www.nytimes.com/2019/09/11/us/dia-de-muertos-barbie-mattel.html
- For those of you who speak German: https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/DE/Umsetzung_EU_Richtlinien_Urheberrecht.html
- Gucci wants to be completely carbon neutral by the end of the month: http://www.thefashionlaw.com/home/gucci-will-be-completely-carbon-neutral-by-the-end-of-september-heres-what-that-means-