Archive | 2013, August | (5) posts

INK-rimination?

Recent years it has been a hot topic whether or not tattoos are copyright material, and whether or not a tattooist can claim copyright in a tattoo on another person’s skin. Furthermore, it seems more and more tattoo artists (if this is what we should call them) are specializing in fine art reproductions and graphic designs, and have highly recognizable styles in their tattoos. In other words, it seems tattoos are actually meeting the requirements for copyright protection as being original works.

However, if copyright protection is granted for tattoos, how far should this protection extend? Should a tattooist be able to prevent the person on whose body the tattoo is depicted, from showing it in public, and from being photographed or recorded? Or should it only extend to the prohibition of using the tattoo in a commercial context?

Already we have seen examples of legal actions within this area. In 2011 an American tattoo artist, Mr. Whitmill, filed charges against Warner Bros. Entertainment Inc. claiming copyright for the commercial use of the tattoo on Mike Tyson’s face.  Mr. Whitmill claimed that the producers of the movie The Hangover II pirated his design in the film and in their advertising material, as one of the characters in the movie, during a heavy night out, got a tattoo identical to that of Mike Tyson. Mr. Whitmill filed for monetary damages and a preliminary injunction preventing the release of the film.

Also in the EU we have examples of tattoo artists claiming copyright. In 2005 a UK tattooist Louis Molloy threatened to sue David Beckham after he started a commercial campaign that focused on his tattoo depicting a guardian angel that Molloy had designed for Beckham.

As none of these cases were settled in court, there is no clear answer as to how far the copyright extends in relation to tattoos. It is therefore an interesting discussion, as it seems that tattoos are recognized as works that can be entitled to copyright protection. However, does this mean that people with tattoos, especially celebrities should go around hiding their tattoos making sure that they are not photographed and thereby “copied” as within the meaning of the copyright laws? In reality this means that getting ink under your skin could take you to court.

One might argue, that when a tattooist applies a work of art to a visible part of a person’s body, it must be somewhat implied, that this tattoo becomes a part of this person and his/her identity. Therefore, shouldn’t a tattooist just accept the fact that a part of tattooing people involves this tattoo being seen in public, especially if it is placed in an area not covered by clothes? And even more if it is depicted on the body of a celebrity.

Moreover let’s not forget the fact, that celebs are a great advertiser for their tattooists. Louis Molloy has after his design of David Beckham’s tattoos gained huge success, and he now has his name on the LouMolloy Men’s Fashion collection.

Tattoos are growing in popularity, and it is becoming more and more common to have tattoos, also in visible areas. Celebrities are also showing more and more tattoos, for example artists as Rihanna, Medina, Adam Levine, Kate Moss and Angelina Jolie have several tattoos in visible areas and are often showing them off. They risk ending up in court, if using these tattoos in a commercial context.

According to another IP-blog, “The IPKat”, there are rumors that the NFL Players Association in the US has started advising their agents to make players aware that they should get a release from their tattooist stating who owns the copyright over the tattoo.

Based on this development with tattoos and copyright, we will probably in future see more and more of such copyright disputes. It will be very interesting to see where the courts will draw the line in defining the scope of protection for tattoos, even though it may seem odd that the courts are the place to settle what should be recognized as art.

This writer wonders whether the development seen within the area of body art will develop even further. What if the next thing will be that a plastic surgeon will claim copyright over body sculpturing of a person appearing in a movie or in public and getting attention based on his/her body?

So watch out – getting a tattoo could make you end up in court!

Maria Dam Jensen, Associate

It’s all about fashion…

Fashion is all about not standing out from the rest. It is really great being the first one to wear a dress or another piece of clothing everybody wants and you sort of create fashion. However, problems arise when you do not use the original product but copy it. Or do they?

Recently, Copenhagen Fashion Week took place and this event always claims a lot of attention. But it also revives the debate about the borderline between copying and being inspired by something. The topic is not new. The Danish newspaper Politiken recently published an article about red shoe soles being popular in the year 1600. Red shoe soles were worn by the aristocracy and people started to paint their soles red. For instance, today a red sole on a spike heel is a trademark owned by the French designer Christian Louboutin. But is it okay to get inspired or to copy such a product?

Well, let’s take a look at the legislation. According to this, it is legal to get inspired but it is not legal to copy someone else’s product. The borderline between getting inspired and copying is the interesting area. There is no exact boundary between what is legal and what is not. The specific legislation does, however, help us and for example regarding trademarks you do also have protection for similar trademarks. But then again, when is one trademark similar to another? Each time we have to evaluate this, we make a specific comparison where a number of different things are compared and evaluated.

But that is the nature of trademarks. What about fashion, where the whole idea is to wear the same as everybody else, until someone dictates a new line? Still, it is not legal to copy someone else’s products. If you wish to wear this, you must buy it. That is the credit, the designers get. However, if you are inspired by a product and then create a brand new product not similar to the original product, this product will have its own scope of protection. The essential thing is not to get too close to someone else’s product. Depending on the products in question, the freedom of designing is different. When it comes to clothing, the products must fit the human body. Basic blouses and trousers may be difficult or impossible to protect the design for, however, if you copy a trademark, you may get in trouble. Does the basic product, however, have some unique details, these must not be copied and you should avoid getting too close to these. It may for example be unique stitches on a pocket. If you wish a stitch, you must create your own, different to the stitches already existing. And the more stitches, the more difficult this also is and the narrower the scope of protection is for the stitches that already exists. This may also be worth considering when creating new products.

So fashion is also in a legal way about getting close but not too close. Every woman knows that showing up in the same dress as another woman at the same party, is not a pleasure, no matter how beautiful the dress is. Let us learn from this that unique is the best.

Henriette Vængesgaard Rasch, Attorney at Law

Reform and rebellion in the trademark world

This spring, the EU commission published their proposals for a reform of the Council Regulation (EC) No 207/2009 on the Community trade mark and the Directive 2008/95/EC to approximate the laws of the Member States relating to trade marks. An earlier version of the proposals had been leaked ahead of time, but by the time the official proposals were made public they had been changed somewhat.

The proposals have given rise to a great deal of discussion, as they set out to further harmonize the rules for obtaining and enforcing trademark rights in the EU.

The issues with the new proposals stem in large from the fact that the EU is more or less evenly divided on a number of questions. For example, here in Denmark the PTO does not cite third party rights as hindrances, though this is the case for our sister office in Sweden.

Another example is the differences in opposition procedures, with some countries allowing for administrative opposition procedures and other jurisdictions requiring right holders to file a case with the courts if they wish to oppose registration of a potentially infringing trademark.

The new proposals aim to eliminate such discrepancies within the EU, setting out to form a unitary application and registration procedure. For right holders and foreign attorneys, this will eliminate some of the guess work and will likely be seen as a welcome and perhaps logical update. 

For the national PTOs however, there will likely be a considerable increase in workload, especially for those countries who do not currently allow administrative oppositions.

Another major change for the national PTOs is that the proposals in their current form state that trademark applications must be examined in all languages. Compliance with this would require the PTOs to find resources for translators, which may be difficult for the smaller Offices. This worry is increased by the fact that the revenue from community trademark registrations made through OHIM with the new proposals will form part of the EU-budget and will no longer be diverted back to the national PTOs as is the case today.

The suggestion that national trademark applications should be examined in all languages also raises a few issues for right holders and practitioners. Even though it would hinder some of the unfortunate situations we have seen with national registrations of terms which are descriptive in many other languages potentially impeding the free movement of goods in the EU (C-421/04 Matratzen Concord AG v Hukla Germany SA and the OHIMs decision of the Cancellation Division of 7 May 2008 Arnold’s Donut), it would also eliminate the possibility of converting an application for a community trademark to national applications where a term is found to be descriptive in just one of the 28 EU languages. 

It can be argued that the Commission with their proposals has veered too far in one direction in an attempt to ensure that trademark law does not create artificial hindrances to the free movement of goods within in the EU, but overall many of the proposals aim to benefit businesses by creating a more uniform approach to trademarks.

The above is only a few of the questions raised by the proposals for reforms. There are further issues relating to such weighty issues as goods in transit, who is entitled to file applications with the OHIM and even the theoretical discussion of whether or not cooperation is still cooperation if it is forced by a mandatory set of rules and procedures.

The Commission hopes to push through the reforms in relative short time, but given the amount of debate these proposals have generated on all levels of the trademark world, it is unlikely to be a quick and easy fix. At AWAPatent we are working actively within various international legal committees to try and influence the new rules in to the benefit of our clients and we will continue to follow the debate and evolution of the proposals closely.

Mette Bender, Attorney at law

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Don’t bring your invention on vacation!

This week a Swedish inventor was forced to realize that it is not smart to bring you invention when going to Denmark on vacation. Particularly not when the invention involves a large battery and a lot of wires attached to a car and when planning to park in a public garage.

The trip resulted in a major bomb scare, where the surrounding buildings were evacuated and got the undivided attention of the entire press in the middle of the “silly season”.

According to Danish media the unfortunate inventor has explained that the car is a proto-type on the battery-powered car of tomorrow, which recharges when driving, and that he has been working on the invention for about a year. If intending to apply for a patent for his invention, as is very common with this type of ideas, the poor man may, however, have created other problems for himself than just having his vacation spoiled. Due to the extreme amount of publicity he may not be able to live up to the requirement that invention cannot have been made available to the public by means of a written or oral description, by use, or in any other way prior to the filing of a patent application.

In conclusion, if you must test your invention during vacation, spend the vacation in a more sparsely populated place than Copenhagen, or at least were it is not going to be scrutinized by traffic wardens.

More info here

Vibeke Warberg Rohde, European Patent Attorney

Kim Garsdal Nielsen, European Patent Attorney

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The Cooperative Patent Classification expands!

The Cooperative Patent Classification (CPC), which has now been in active use for half a year, has now begun the very interesting procedure of expanding geographically speaking. Particularly, both the SIPO (China) and the KIPO (Korea) have signed a so-called memorandum of understanding to initiate the adoption of the CPC.

For starters, both offices have agreed to start using the CPC for classifying some of their national patent documents, particularly those in the most active technological fields in the respective countries. The end goal naturally is that the use of the CPC in time should be extended to eventually cover all Chinese and Korean patent litterature.

To ensure proper training and transfer of knowledge regarding the CPC, the SIPO and the EPO have signed the one memorandum of understanding, while the KIPO and the USPTO have signed the other memorandum of understanding. Accordingly, the EPO will undertake the necessary training of the SIPO, while the USPTO will work with the KIPO.

Representatives of all four IP-offices express their expectation that this new cooperation will help improve future examination results by making patent litterature searches simpler and easier to perform.

Troels Peter Rørdam, European Patent Attorney & Certified Danish Patent Agent

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