IP News

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Good morning everyone. This is going to be our last summer post. We will be back in September. As always, remember that the blog is the only one taking a summer break, the Helpline will be working as usual. Now, onto today’s news.

UK withdraws its agreement to the UPC

As expected, the UK has withdrawn its ratification of the Agreement on a Unified Patent Court and the Protocol on Privileges and Immunities of the Unified Patent Court (dated 23 April 2018), and its consent to be bound by the Protocol to the Agreement on a Unified Patent Court on provisional application.

Because of Brexit, it makes sense that the UK no longer wishes to participate in a court that applies EU law and is bound by the CJEU. Indeed, this would be inconsistent with the Government’s aims of becoming independent.

Netflix and Stranger Things is being sued for copyright infringement

Irish Rover Entertainment alleges that Netflix and The Duffer Brothers (creators of Stranger Things) stole the idea for Stranger Things from a script from an unproduced film known as Totem, written by Jeffrey Kennedy.

Allegedly the show copied “plot, sequence, characters, theme, dialogue, mood, and setting, as well as copyrighted concept art.”

For example, in Totem there is “a little girl named Kimimela who has supernatural powers. Kimimela helps her friends find the portal gate to an alternate supernatural plane and helps them battle the plane’s inhabitants; a dark spirit named Azrael and his army of Blackwolf.” By comparison, the lawsuit then describes that in Stranger Things, one of the characters is a little girl name Eleven who has supernatural powers. Eleven helps her friends find the portal gate to an alternate supernatural plane and helps them battle the plane’s inhabitants; a Shadow Monster and his army of Demogorgon.

Let’s see how this unfold…

Kanye West vs. Fragrance Company over the YZY trade mark

On top of running for president, Kanye still has to defend its businesses. A year ago, YZY, a fragrance company, sought to register a stylized version of its name as a trade mark before the USPTO to use on fragrances and hair preparations. In August 2018, registration was refused because of likelihood of confusion with a prior mark: the one registered a year prior by a company related to Kanye (YZY for use on footwear). Although the two companies are involved in different businesses, the USPTO examiner considered that the risk that consumer would confuse, mistaken or be deceived as to the origin of the goods.

After a few unsuccessful attempts to convince the USPTO to change its mind, the fragrance company has now taken its fight before the courts trying to have YZY’s Kanye mark cancelled. Indeed, the fragrance company considers that by using YZY, Kanye is and will continue to damage their reputation. The problem with that, according to Y.Z.Y., Inc., is that West first used the “YZY” name on sneakers years after it had adopted the YZY name. As such, the fragrance company has been using the YZY mark and has been gaining reputation since August 2011.

These dates are significant, as in the U.S., trademark rights are amassed by the first party to actually use a mark on specific goods/services in commerce, and not the first to merely file an application for it. 

Ritter Sport vs. Milka

Ritter Sport is a German company that sells square chocolates meant to fit in everybody’s pocket. This three-dimensional trade mark was registered before the German Patent and Trademark Office (DPMA) in 1993. Milka challenged Ritter’s monopoly over the square shape and managed to have the trade mark cancelled in 2016. However, this judgment was overruled and the matter when to appeal. The Federal Court of Justice sided with Ritter Sports, confirming that they are the legitimate owner over this three-dimensional shape for chocolate bars, a shape that indicated the quality and the provenance of the product to the consumers.

And this is all for this week! We hope that you will all be able to enjoy your time-off, if you have some. See you in September!