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March 31 / Blogs, Trademark

Not Quite a Marathon: The TTAB’s Effortless Denial of the “Marathon Monday” Trademark

Abstract: The brackets have finally been released for the annual NCAA Men’s Basketball Championship, commonly called March Madness.  The term “March Madness” evokes images of massive upsets, busted brackets, and sounds like the buzzer and Bill Raftery’s voice.  “March Madness” is just one example of a sports event that truly owns a time of the year and a name that fosters a powerful resonance in American culture.  Other examples include Monday Night Football, Sunday Night Football, and Super Bowl Sunday.

The Boston Athletic Association (BAA) thought that “Marathon Monday” was a unique day and term that specifically referred to the Boston Marathon.  In late October 2015, however, the U.S. Patent and Trademark Office’s Trial and Appeal Board (TTAB) ruled that “Marathon Monday” does not point “uniquely and unmistakably” to the BAA.  The TTAB was correct in denying the trademark, because Marathon Monday is not an event that is specifically associated with the Boston Marathon.  Beginning in the 1970’s, marathons have become incredibly popular throughout the United States, and that meant that there was a high probability that the term “Marathon Monday” would be used in many different ways.  The BAA should have attempted to trademark the term in the 1970’s, because now the Disney Marathon and New York Marathon both use the term “Marathon Monday.”

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March 31 / Blogs, Copyright

Infringe Now, Apologize Later: Class Action as a Viable Remedy for Copyright Infringement

Abstract: Spotify launched in 2008 into a new music streaming market that was revolutionizing the way that consumers listened to and purchased music. The primary attraction of streaming services is the access to a vast number of songs, often for a flat fee or even free. While these new streaming platforms have helped contribute to a decline in piracy and rising profits in the music industry , it also may be causing song writers to lose money.  Spotify’s compensation model pays out royalties to the record labels, which then compensate the artists and performers. However, Spotify cites the record labels as the reason that artists are not getting paid, but that explanation glosses over whether or not Spotify has infringed upon the copyrights by streaming songs that the company does not have the license to. The streaming service is currently facing the threat of two class action lawsuits that allege that their payment model infringes song writers’ copyrights. The two questions, here, are: Has Spotify infringed upon the copyrights of owners of works that the service streams? Will a class action suit be the remedy for infringement, if infringement can be shown?

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March 31 / Blogs, Copyright, Technology

Who’s Fault is it Anyway? The Modern State of 3D Printing Copyright Liability

Abstract: When new technology arises, lawmakers struggle to keep up: how do I perform the balancing act of managing risk through regulation without stymying innovation. An ongoing struggle is the 3D printer and its copyright liability. 3D printers take a complicated manufacturing process and puts in our homes instead of a factory. The ease in which a person can create an object at home is an incredible feat, but it comes with consequences. Specifically, owners of copyrighted images are weary of their products being reproduced at home and sold in a secondary market. This article briefly describes the source of their concerns and reviews the copyright issues that arise in the world of 3D printing.

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February 21 / Blogs, Other Intellectual Property, Patent

Data Exclusivity for Biologic Drugs: the TPP’s Potential Poison Pill?

Abstract: On October 5, 2015, after many years of secretive negotiations, the US government with 11 other countries across the Asia-Pacific and Latin America reached an agreement on the largest free-trade deal in history, the Trans-Pacific Partnership (TPP). Addressing everything from wildlife conservation and tax reductions for agriculture, to the free flow of information on the Internet and intellectual-property rights for movies and pharmaceutical drugs, this far-reaching agreement has the potential to impact up to one-third of world trade. One of the most contentious parts of the agreement involves intellectual property rights of pharma companies to data exclusivity for biologics, a hot and promising type of pharmaceutical derived from living organisms.

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November 25 / Blogs, Computing, Technology

Obama’s Broadband Plan

Abstract: This January, President Barack Obama announced a federal government initiative to expand broadband infrastructure. Given the widespread use of technology in today’s society, the President believes that broadband access is an essential piece of infrastructure that needs improvement.

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November 25 / Blogs, Copyright

‘HAPPY BIRTHDAY TO YOU’: The World’s Most Famous Celebratory Song’s Copyright Challenged

Abstract: It is a well-known adage that the best things in life are free, but how true could this be with a copyright looming over the “Happy Birthday to You” song’s head? On
September 22, 2015, a U.S. District Court in California freed “Happy Birthday to You” by ruling on the case Marya v. Warner/Chappell Music, Inc. and declaring Warner/Chappell’s copyright invalid. Although the song is widely known by all, many individuals do not know that “Happy Birthday to You” was copyrighted at all, let alone know that Warner/Chappell was making $2 million a year from ownership. The history of how the song came to be provides an insight into how Warner/Chappell obtained a copyright and how the existence of the copyright was impacting everyone from filmmakers to restaurant chains.

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November 25 / Blogs, Other Intellectual Property, Trade Secret

The Defend Trade Secrets Act: Arrival of the Trade Secret Trolls?

Abstract: In today’s world it is increasingly apparent that advancements in technology have allowed information to be shared, and to be stolen, more than ever before. This
encompasses simple tweets, as well as information guarded and seemingly protected by small businesses and large corporations alike. There have been expected downsides with these technological capabilities, namely state-backed cyber espionage and trade secret misappropriation. A new bill that is currently facing Congress, the Defend Trade Secrets Act, is aimed at creating a federal private cause of action under the Economic Espionage Act of 1996 (EEA). It is a bill that will, if passed, expand the EEA to provide federal jurisdiction for the theft of trade secrets. There is no question as to the degree of importance the protection of trade secrets is to United States businesses and society at large. The question is whether the well-intentioned DTSA will actually do more harm than good. There are a substantial number of legal professionals that have voiced their concern that not only will it fail to significantly hinder cyber-espionage, but it will open the door to a new breed of predators, trade secret trolls

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November 25 / Blogs, Copyright, Other Intellectual Property, Patent, Trademark

Intersection of American Law and Technology: The Innovation Act’s Fight Against Patent Trolls

Abstract: Few issues have attracted more legal attention and spurred more public debate in recent years than the controversy over patent rights. The crossroads of American law
and innovation finds its origin in the U.S. Constitution. Article 1, section 8 states that “Congress shall have the power to…promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The founding fathers recognized the social value of innovation, and the critical role government will inevitably play in protecting and encouraging technological advances.

Out of the foundations of the Constitution grew an elaborate system of patent laws, evolving over time to meet the needs of modern society. Nevertheless, in recent years, the frequency of extraneous patent lawsuits has become increasingly concerning. The economic and social burdens of frivolous litigation have led “academics, policymakers, and even judges to suggest that patent law[s] may have overleaped its proper bounds, or at least become too likely to frustrate, rather than to fulfill, its constitutional purpose of ‘promot[ing] the progress of science and useful arts’. The primary causes of this problem are the overly litigious entities pejoratively known as patent trolls, who are collectively responsible for the majority of today’s patent infringement cases. Although solutions to this complex problem are evasive, the need for reform is readily apparent. One of the most important and highly debated pieces of legislature surrounding the issue of patent trolls is the Innovation Act. This article introduces the Innovation Act, discusses proposed arguments for and against it, and opine on its merit.

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November 25 / Blogs, Other Intellectual Property

Telemedicine’s Opportunities and Risks: A Balancing Act

Abstract: The U.S. has recently undergone a significant shift in healthcare delivery for the 21st century, utilizing technology to deliver more efficient and effective care. Because the Affordable Care Ac
t
(ACA) and Health Information Technology for Economic and Clinical Health Act (HITECH) emphasizes healthcare to be preventative, to detect and care for patients before diseases or illness arise, technological innovation and standardization is critical in today’s healthcare world. If healthcare organizations can capitalize on innovation and standardization, the government will reimburse a substantial monetary reward for successful implementation of telemedicine.

Areas that healthcare organizations have taken in this preventative shift include lean management, more efficient primary care coordination and of particular interest, preventative care technology deemed under the umbrella term, “telemedicine.” Telemedicine isn’t singularly defined; some healthcare organizations interpret telemedicine as “the delivery of specialty care at a distance via telecommunications using applications that provide direct patient care.” The U.S. Department of Health and Human Services (DHHS) and the Center for Medicare & Medicaid Services (CMS) also define “telemedicine” as the “provision of clinical services to patients by practitioners from a distance via electronic communications.” In essence, telemedicine can be thought of as applications that can aid patient care outside of a traditional healthcare setting, even treating patients in their homes.

Obstacles that can complicate successful implementation of telemedicine are the legal ramifications. Legal complications can include fraud and abuse, patient confidentiality, and compliance with state requirements. Violation of patient care can result in heavy fines, and in telemedicine, a recent case involving the Texas Medical Board and a Telemedicine company could heat up within the coming months. Because of these obstacles, healthcare organizations face an arduous journey to getting reimbursed for implementing telemedicine.

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November 12 / All Articles, Blogs, Computing

The Trans-Pacific Partnership on Internet Service Providers: Notice, Counter-Notice, and Liability Limitations

Abstract: With the recent release of the Trans Pacific Partnership (TPP) intellectual property chapters, jurists and pundits have quickly begun to comb through the
language and pick apart the intriguing and possibly soon-to-be influential document. While many have focused on this document’s proposed changes to the way copyright holders and infringers interact with their governments, each other, and each other’s governments, it is very important to stop and try to understand the changes that are more ground level. More specifically, it is worthwhile to take a close look at the proposed changes in how copyright holders and infringers interact with Internet Service Providers (ISPs), as this interaction and the legal responsibilities ISPs have during this interaction will mostly define how the average citizen in TPP member states will experience the effects of the document.

Thankfully, ISP responsibilities regarding IP infringement does not seem to span many chapters, but rather are contained to their own sections labeled quite clearly. The system envisioned by the TPP is one of notice and counter-notice, where the ultimate end for an ISP is to gain limitations on liability (monetary or otherwise) as well as other non-defined incentives. The treaty notably states that not qualifying for liability limitation under the TPP does not per se mean they are in a liable position. It points out that the TPP section in question is “without prejudice” to any current limitations in liability for intellectual property infringement, and thus does not displace those exemptions, but rather sit beside and provide other avenues to liability exemptions.

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