Emoticons and Emojis... can they be protected?

An emoticon etymologically a portmanteau of emotion and icon, is a metacommunicative pictorial representation of a facial expression that, in the absence of body language and prosody, serves to draw a receiver's attention to the tenor or temper of a sender's nominal non-verbal communication, changing and improving its usually distinguished as a 3-5 character piece — usually by means of punctuation marks (though it can include numbers and letters) — a person's feelings or mood, though as emoticons have become more popular, some devices have provided stylized pictures that do not use punctuation.

In Western countries, emoticons are usually written at a right angle to the direction of the text. Users from Japan popularized a kind of emoticons called kaomoji (顔文字, often confused with emoji in the West) that can be understood without tilting one's head to the left. This style arose on ASCII NET of Japan in 1986.

A few years ago, Gap Inc. and Diane Von Furstenberg’s company DVF Studio asked the federal court in the Southern District of New York to rule on whether the heart emoticon <3 can be protected as a trademark. Their declaratory judgment complaint filed against VeryMeri Creative Media Inc. contended that VeryMeri could not claim intellectual property rights in its stylized heart logo, which consists of or incorporates the <3 emoticon, since that logo/emoticon is “widely used in connection with apparel and related products,” since the stylized heart logo “is nothing more than a commonly used and well-known ‘emoticon’ or metacommunicative pictorial representation of a heart design,” and because “no one entity can be said to have the exclusive right over all forms of this [emoticon heart] design.”

The debate over the protection of emoticons and emojis is still puzzling jurists in many different countries.

The question is raised as to whether commonly used words or designs or other stylistic elements can ever function as trademarks. Generally speaking, the answer to this question is almost always a resounding “yes.” If a word, design, or other stylistic element is being used properly as a trademark on a product or as a service mark to advertise and provide a service, and does not violate any of the restrictions imposed by the trademark law, it can function as a trademark and be registered.

As far as emoticons are concerned, the US Trademark Office has, in fact, allowed registration of emoticons as trademarks. The emoticons ; ) , :o) , : ) , *-)- , and : – (  have all been registered as trademarks by different entities for use on and for various goods and services including alcoholic beverages, clothing, online retail store services, cellular telephones, communication services, hardware and software, greeting cards, posters, art prints, calendars, postcards, and note cards. Thus, it seems in principle that an emoticon per se is capable of functioning as a trademark. 

Another question arises on the protection of emojis and emoticons under copyright law. In principle, any creative content that is fixed in some expressive format will be covered under copyright protection.

Readers may have noticed that the emojis found on Apple products are not the same as you find on others like the Blackberry, for example. 

We believe that the simple, yellow, face-type emoticons used by Apple [and many others] are copyrightable. The online Copyright Office database of registered copyrights has no record that Apple has registered any such emoticons [which would be unusual for Apple’s legal department]. It likely hasn’t because, for one reason, the Copyright Office position is that: “Well-known and commonly used symbols that contain a de minimis amount of expression or that are in the public domain, such as the peace symbol, gender symbols , the symbols for “play, pause, stop, forward, back,” simple emoticons such as the typical smiley face, or the “like” are NOT copyrightable

 So while we would agree that perhaps some of the most general ones MAYBE are too standard to claim copyright protection (e.g. a standard smiley face with yellow background and black dot eyes and black penciled smile) most other emoticons will certainly be protected and they could not be used as wished without seeking a license. 

Buddha "barred"

The Italian Supreme Court has recently ruled on the validity of the Buddha Bar trademark and the outcome is that Buddha's name cannot be used by anyone on an exclusive basis to "denote a product or service".

The Supreme Court, dismissed the appeal proposed by the companies George V Entertainment and George V Records which run the well-known bar in Paris and which wanted to prevent the Buddha-café in Milan, ran by an Italian entrepreneur, to be called so.

Plaintiffs arguments on the other hand were that the association between the words “Buddha” and “Bar” created a highly distinctive trademark asthe concepts conveyed by the two words were quite distant and therefore it created a string trademark.

The Supreme Court in the end held that if the trademark was valid, it could end up offending the religious feelings of Buddhists who would see a spiritual leader reduced to distinctive logo of a café-restaurant and for this reason it confirmed the ruling of the Court of Appeal in Milan.

Cristal vs Critallino. Another champagne battle...

Cristal is a well-known brand in the luxury champagne market, and around half a million bottles are produced every year (compared with around 7.5 million bottles of Dom Pérignon), and in some years no bottles at all if the harvest is not of a sufficiently high standard.

Louis Roederer , the manufacturer of Cristal, sued the manufacturer of Cristalino back in 2010, claiming that consumers would be confused into thinking that Cristalino was in some way connected with Cristal, but also - due to the reputation of the Cristal brand - that the Cristalino product took unfair advantage of, and was detrimental to, the distinctive character or repute of Cristal.

The history and repute of Cristal are undoubted.  Cristal was first created in 1876 for Alexander II of Russia, and is viewed by many as the first prestige cuvée. As the political situation in Russia at the time of his rule was unstable, the Tsar feared assassination. He ordered that champagne bottles for his Three Emperors Dinner be made clear, so that he could see the bubbles and also to prevent hiding a bomb within them, as could happen with a typical dark green bottle. Louis Roederer commissioned a Flemish glassmaker to create a clear lead glass Champagne bottle with a flat bottom. The Champagne has since become known as "Cristal"

Overall, and apart from the judge was impressed by the volume of press coverage generated by the Cristal brand, given the tiny proportion of the UK champagne market it occupied.

The High Court of Justice Chancery Division Intellectual Property held that use of the Cristalino mark would result in dilution and detriment to the distinctiveness of the Cristal brand, particularly when used in relation to cheap cava. The later brand would also be free-riding on the reputation of Cristal: evidence from several sources, including social media sites, showed consumers drinking Cristalino and jokingly pretending that it was Cristal, thereby benefitting Cristalino by associating it with the more prestigious product.

France Passes the "Photoshop Law"

As confirmed by an article by Reuters, France will now ban runways that feature super skinny supermodels. To be exact, the French Parliament wants agencies to stop hiring models which are considered “anorexic” and/or “not healthy” based on BMI standards.

Under this new law, it is now illegal in France to hire models whose BMI, or Body Mass Index is below 18. Violators would pay fines of up to €75,000 or US$82,000 — and face up to six months inside prison cell. Ouch.

In case you’re wondering, BMI or Body Mass Index is your weight in kilograms over your height, squared. For example, if the model’s height is 6 foot flat, and her weight is 127 pounds, her BMI is around 17 plus. Based on the official BMI categories, a BMI of 17 is considered underweight. The normal weight according to the feds is from 18.5 to 24.9.

The United States Department of Health & Human Services offers a BMI calculator on its website ( in case you’re planning to become a supermodel in France).

This new law is a part of the government’s action against glorifying extreme weight loss and becoming thin for the sake of “fashion.”

In addition to banning thin supermodels on catwalk, French lawmakers also passed a measure making untagged photoshopping illegal. What this means is that websites and magazines cannot just re-touch photographs of model to make them look thin on other media. These publications need to mark these images with a disclaimer that images “were manipulated.”

This measure also bans glorification of extreme weight loss, whether on websites, or people running events, etc. If found guilty, a person promoting “prolonged dietary restrictions” would pay a fine of around €10,000, and face a year in prison.

France is not the first to regulate the fashion industry. Two years ago, Israel had passed a similar law which aims to prevent fashion models from losing too much weight for the sake of “pleasing” the producers and owners of clothing lines. Israel was also the first country to pass the “photoshop law” which requires photoshopping of images to include a note to confirm alterations.

The Court of Milan decides on the Protection of Interior Design.

Italian beauty powerhouse Kiko Milano has won its legal battle against competitor Wjcon to defend the concept of its stores.
With decision filed on Oct. 13, the court of Milan inhibits Wjcon from the use of any store decor elements which are characteristic for Kiko’s stores and ordered the company to pay a compensation of damages to the extent of 716,250 euros, or $813,123 at current exchange. Wjcon will also have to remove any characteristic references in its 100 points of sales.
According to the court, the interior design concept of Kiko’s shops has an original and creative character, which deserves protection of the copyright law. Wjcon had copied the decor with only minor changes, which the court called “a slavish imitation of the complex behavior of commercial and promotional activities.”

What are the legal issues behind a Selfie?

Named “word of the year” in 2013 by Oxford dictionary, the selfie is a self-portrait taken by the user’s smartphone. This practice has become the pièce de résistance of some social networks, like Instagram or Snapchat, each equipped with their own unique attractions to selfie takers, like filters or the option to add commentary. Whether it is considered as a hobby or a heightening of societal individualism, the usage of the selfie raises many legal issues. From a legal standpoint, the selfie is governed by the right of publicity, which, in turn, derives from the right to privacy. Since the selfie is a photograph, the foremost issue is that of publicity rights. Whilst the situation is straightforward when a person takes their own photograph, it inevitably differs when a selfie becomes a group photograph. This matter is often resolved by assuming, correctly, that those featuring in the picture have consented to be photographed.
But consent usually does not go any further, which frequently gives rise to other problems. In this era of social networks, the author of the selfie will feel the urge – if not a reflex – to post the photograph on social platforms without having obtained the express agreement of relevant individuals. However, consent to be photographed and consent to having one’s photograph posted online are different. It is thus recommended to obtain the express consent of the persons photographed in order to publish and share the picture. For the record, the consent of individuals appearing on the photograph, albeit not as the chief object (including people in the background), is not required.
The selfie may also raise the question of image rights in relation to property. When the photograph is taken indoors, the right to privacy is of significance and it may be necessary to obtain the consent of the occupier of the premises. More importantly, when the selfie is inclusive of a good covered by copyright or other IP rights, the right holders are entitled to request the withdrawal of the photograph.
The selfie thus presents specific issues that should be handled with care, especially in respect of publication on social networks.

The Italian Data Protection Authority and the Right to Be Forgotten.

There are about fifty cases defined by the Data Protection Authority related to ordinary people, local public figures, professionals who have turned to the Authority after the rejection of requests for de-indexation by Google. Another dozen appeals are being defined.

This is the balance a year and half after the so-called ruling "Google Spain" (C-131/12) of the Court of Justice of the European Union on the right to be forgotten, that has forced Google to give a response to requests for removal, from the search results, links to web pages that contain the name of the applicant. 

In about a third of cases closed, the Data Protection Authority has accepted the request of the interested parties by ordering Google to remove links to pages on the web that reported data that are no longer in the public interest, information often excessive, referring to people foreign to each other Judicial narrated, or damaging to the private sphere. In all other cases, however, the Authority has rejected cases on the belief that Google's position was correct, invoking a predominant public interest in accessing information through search engines.  materiality of the information.

Italy bans free streaming of Serie A soccer matches.

A Milan court has ruled that streaming sites violate the copyright of the Italian top-flight and the Champions League and have ordered Italian internet suppliers to stop customers accessing them.

The suit was brought by Mediaset which claimed copyright infringement through the internet provider Fastweb.

For the first time in Italy a Court, has in fact ordered a major supplier of Italian Internet to inhibit all its customers access to the domain it.rojadirecta.eu, one of the main sites that systematically violates the Copyright races of Serie A and the Champions League.

At the same time, the court has also ordered the TLC company the immediate removal of all the sites named 'Rojadirecta', regardless of the country where they are registered, fixing a penalty of € 30,000 for each day of delay implementation of the measure.

The decision of the Court of Milan is the first of its kind, and is of particular relevance of case law on the subject of the fight against piracy. 

Cisac publishes new Global collections report.

The International Confederation of Societies of Authors and Composers (CISAC) released its 2015 GLOBAL COLLECTIONS REPORT, concerning global royalty collections for the year 2014.

The total royalties collected in 2014 by CISAC’s 230 member societies, on behalf of the four million creators they represent around the world, returned to growth after a stable 2013. They amounted to €7.9 billion, up 2.8% from 2013. Had exchange rates not changed, total royalty collections would have grown 5% year-on-year.

Reflecting its commitment to bringing more information to the market faster, CISAC publishes a second economic report before the end of 2015, taking stock of the royalties collected worldwide by its member societies in the course of the previous year (2014). The first report published by CISAC this year (in February) concerned the figures for 2013.

Key trends:
•    Geographically, Europe continues to lead the world in royalty collections.
•    In terms of artistic repertoires, music remains the pillar of creators’ income.
•    Digital collections show promising signs and form a dynamic springboard for further growth. Totalling over €7.9 billion, the royalties collected globally by CISAC member societies rose again in 2014 (+ 2.8%) following a stable year in 2013.
•    Music repertoire continued to generate the bulk of collections (87% of the total) and the royalties collected for music use grew 2.4% year-on-year.
•    Other repertoires (audiovisual, drama, literature and visual arts) generated royalties that grew by 5.2%. The two strongest areas of growth were in audiovisual (+5%) and in visual arts (+16.5%).
•    Performing Rights collections, which represent 79% of total royalty collections, were up 3.8%.
•    Mechanical Reproduction Rights collections continued to decline, down 9% year-on-year.
•    Royalties collected from digital & multimedia services (for all repertoires combined) grew 20.2% year-on-year.
•    99% of the amounts collected from digital & multimedia services were for the use of music repertoire.
•    Europe, the region generating the most royalties (61.3% of the total, equating to €4.9 billion), posted year-on-year growth of 4.1%, higher than its GDP growth.
•    Canada-USA, CISAC’s second largest region with almost 17% of total royalty collections, showed the strongest increase in 2014 (+6.2%). 
•    The BRICS countries posted growth of 11%, an encouraging trend but slower than the 2013/2012 growth rate (+ 30%). BRICS countries account for 5% of global royalty collections.

The Instagram Trademark Battle has just begun.

The Office for Harmonization in the Internal Market (“OHIM”) recently declared the invalidity of the registered Community trademark “instaweather” confirming the possible confusion between Instagram’s famous trademark and other signs which use the prefix “Insta” and the suffix “Gram”.

 The “instaweather” trademark was filed in January 2013 for products in Class 9 (software), and it identifies an application that allows users to include weather information as tags on pictures, and then share those images on Instagram.

In its decision, the Office stated that the “instagram” and “instaweather” trademarks are similar when compared from a visual, aural and conceptual point of view. Moreover, the Office established that the “instagram” trademark enjoys a great reputation at the date on which the application for the “instaweather” trademark was filed by  demonstrating that the app had millions of users and was considered one of the leaders in the field of social networks together with Facebook, Twitter and Pinterest.

In light of all of the above, the OHIM then declared the invalidity of the Instaweather trademark. 

Does Fair Use Apply to Web Giants?

Google won a decisive victory on Friday in a copyright-infringement case that the Authors Guild originally launched almost a decade ago. A federal appeals court ruled that the company’s book-scanning project, which has turned millions of books into searchable digital files, is entitled to the full protection of the “fair use” clause in copyright law.

The case is hugely important, not just for Google (now part of a larger holding company called Alphabet) and the authors whose works are being digitized, but for the principle of fair use itself. Copyright law may be murky and difficult to pin down at the best of times, but interpreting the concept of fair use often makes regular copyright law look like a day at the beach.

That’s because what qualifies as fair use—which theoretically lets anyone use copyrighted content without having to get permission from the creator or rights-holder—isn’t specifically spelled out in federal copyright law. It’s something that ultimately has to be decided by a court, and even then the judges have to consider four factors before they can come to a decision. Those factors are:

• The purpose of the infringing use, specifically whether it qualifies as “transformative”
• The nature of the original content (i.e., whether it is artistic or commercial)
• The amount and “substantiality” of the original content that is used in the derivative work
• Whether the infringing use will affect the market for the original product or content

The part about Google being a multibillion-dollar entity was clearly what caused the Authors Guild to fight the case for so long—arguably long after it had already become obvious that it would probably lose. For the Guild, this was a classic case of David versus Goliath, with book authors representing the David character and Google the clearly evil Goliath using the work of others for its own purposes.

The appeals court, however, pointed out in its decision that the purpose of copyright law is not to guarantee authors a living, nor is it to give them exclusive control over who uses their work and how. The purpose of the law is to provide an incentive for people to create artistic works because doing this benefits society—and ultimately, the social benefit of Google Books outweighed the infringement aspect.

The key part of the ruling is that the book-scanning project was fundamentally “transformative” in nature. In other words, Google isn’t just copying the books it scans and indexes — it uses those copies to provide searchable “snippets” or short sections of each work so that users can find books more easily.

What Google does is significantly different from simply copying books wholesale and then putting them on the Internet, the court said. And it provides a clear social benefit. It also provides a potential benefit to authors themselves, since it makes their work much easier to find, which is why some authors opposed the long-running case launched by their union. But the Guild refused to give up.

If the fair use aspect of Google Books wasn’t already obvious, a recent decision by another federal court—in a case related to the Authors Guild vs. Google—showed that the Guild’s challenge was likely to fail. In that case, the authors’ group sued the Hathi Trust, a collective of universities that partnered with Google on the scanning project. In 2012, a federal court rejected the Guild’s argument and found that what Google was doing clearly qualified as fair use.

The Google Books decision doesn’t mean that the web giant can do whatever it wants with other people’s content and have that covered by fair use. But it does invalidate the argument that something done by a commercial entity can’t possibly qualify as fair use. And that’s an important point at a time when copyright holders seem to have all the power, and fair use often gets overlooked because it is seen as too confusing and not relevant.

Lindt wins the "Battle of the Bears" over Haribo

German confectionary maker Haribo has lost a long-running battle against Swiss chocolate giant Lindt after the Germany’s supreme court ruled that Lindt chocolate teddy bears were not a copy of the Haribo’s gummy bears.

"Lindt’s sale of bear-shaped chocolates wrapped in a golden foil with a red ribbon is neither a violation of Haribo's ‘Gold Bear’ trademark nor an illegal imitation of the fruit gum products," the court ruled on Wednesday.
Haribo produces a ‘Goldbär’ (‘Gold Bear’) gummy bears and the package features a cartoon bear wearing a red ribbon around its neck, while the Lindt & Sprüngli product features a bear caricature printed on gold foil, with a real red ribbon wrapped around its neck.
Bonn-based Haribo has been producing the ubiquitous gummy bear since the 1960s. The ‘Lindt Teddy’ came out in 2011.

The two sides had been locked in a three-year court battle after Haribo argued the two products were too similar and that people would confuse the two.

Cologne's regional court had originally ruled in favour of Haribo in 2012, but Lindt successfully appealed in Cologne last year. The case then moved to the Federal Court of Justice, Germany’s highest legal instance. The judgement is now final.

Have break, Kit Kat!

Confectionery giant Nestle's attempt to trademark the shape of its four-finger KitKat bar in the UK does not comply with European law, a senior European Court lawyer has said.
The opinion of the advocate-general effectively ends Nestle's attempts to trademark the snack. It also brings to an end the latest chapter in the internecine chocolate wars between Nestle and Cadbury.
The High Court had already rejected Nestle's trademark application in 2013. Advocate-general opinions are usually, although not always, followed by the European Court judges.
Had its application been successful, Nestle would have been able to prevent competitors making rival chocolate bars of the same shape and size.
But Nestle faced significant opposition to is trademark application from bitter rival Cadbury's and its US owner, Mondelez International.
The advocate-general opinion is the latest development in a more than 10-year battle between Nestle and Cadbury fought in the courts, which started when Cadbury tried to trademark the purple colour it uses on its Cadbury chocolate wrappers.
Nestle objected and finally had the original decision allowing Cadbury to trademark the colour overturned in 2013.
Now it appears Cadbury has had its revenge.

Fake Goldman Sachs is the Latest Chinese Trademark Infringement Case.

Goldman Sachs (Shenzhen) Financial Leasing comes to light after pirate branch of China Construction Bank offered customers deposits but no withdrawals. Goldman Sachs (Shenzhen) Financial Leasing Co has no connection with the New York-based financial institution. Its existence has come to light a few weeks after a Chinese man was arrested for setting up an entire fake bank branch. The company uses the same Chinese characters as the real Goldman Sachs does where it operates in the world’s second-largest economy.

Shenzhen’s Goldman Sachs was exposed by a letter sent by a US casino workers union to Chinese anti-corruption officials asking them to investigate the firm, Bloomberg News reported. The Chinese firm’s English font was evocative of the US bank’s, Bloomberg reported, labelling the company a “pirate” version of Goldman Sachs. The news came after a 39-year-old man in eastern China was arrested for setting up a fake branch of China Construction Bank including card readers, teller counters and signs, according to state-run media. Duped “customers” handed over money to make supposed deposits into their accounts but were refused withdrawals, reports said.

Enforcement of intellectual property laws in China is lax and counterfeiting of brands and products is rife. Several foreign firms have been embroiled in court cases over imitators. Basketball star Michael Jordan in July lost a case against a Chinese sportswear company that used the Chinese version of his name. Apple paid $60m to settle a trademark dispute with a Chinese company that had applied to block the sale of iPad computer tablets in 2012.

US Trademarks after the end of the Cuban Boycott

This post faces the problems  by international brands, returning to countries after years of boycotts. Some of you may recall the trademarks problems faced by multinationals in South Africa in the Apartheid era, only to find that other were mischievously using their brands.  There are some parallels with the situation in Cuba today, though the politics are different -- and so too is the legal framework within which problems fall to be resolved.

The opening of commercial relations between Cuba and United States is tempting some individuals to jump at the chance to register US trade marks in order to force trade mark holders to negotiate their entrance into the Cuban market. This means the emergence of the Cuban “trade mark troll” and “trade mark hijacking”.

A group of people has started to file applications of US trademarks, including some very famous ones. One of these is a Cuban citizen, who has applied to register at least 65 well known US trade marks including CHASE and NFL; in most cases he has applied for logos or device trademarks.

Cuba is a member of the Paris Convention but it is difficult to prove that a mark is well-known in Cuba when products bearing US trade marks have not been present on the Cuban market for many years.

An interesting and important exception to the territoriality principle in Cuban law can be found in the little-known General Inter-American Convention for Trade Mark and Commercial Protection (Washington 1929). This convention remains valid and in force today in all original contracting countries. Unlike the Paris Convention priority right, it is neither limited in time nor applied as of right. It is unlike the Paris Convention’s “well-known marks” protection in that the senior user does not have to prove fame in the country in which it seeks protection, but merely that the junior user was aware of the senior user’s rights in a member country.

Does the Cuban Trade Mark Office have the legal and political ability to enforce the provisions of the Washington Convention? This is a big question.

Sound and colors Protected are now protected as Trademarks in Japan.

On April 1, 2015, the Trademark Act 2014 has been amended to broaden the scope of trademark protection in Japan to encompass the following:

– Trademarks consisting of sounds, colors, holograms, motion and position;

– Regional collective trademarks.

However, the registration of olfactory and taste marks remains unfeasible in Japan.

As concerns sound marks, registration was already acknowledged by the former Japanese law for simple or musical sounds. Henceforth, the protection will be extended to very brief sound clips, provided that the marks are represented by a sound spectrogram or a musical score. On the other hand, music titles or composers names cannot be protected as trademarks.

The Japanese Patent Office also makes it clear that to register one or more colors as a trademark, the application must include a drawing or a picture indicative of the color or colors. However, the application for such a trademark will not be accepted if letters or numbers can be identified on the drawing or the photo.

This type of new trademarks is problematic with regards to the function of the trademark: it may be difficult for consumers to recognize them as indicators of the origin of the products or services. In this respect, the issue at stake is the manner in which the Office will assess the distinctiveness of these trademarks. Trademark applications based on a single color, the color which enhances the design of the product or a natural sound will likely be examined carefully by the Japanese Trademark Office.

The new trademark system provides an opportunity for rights holders to rethink their strategies.

Is Freedom of Panorma Under Attack?

On 9 July 2015, the European Parliament will vote on whether to abolish our right to freely take and share photographs, videos and drawings of buildings and works of public art.

“Freedom of panorama”, which is the right to take and use photos of cultural works located in public spaces — buildings, sculptures and public art. The Copyright Directive allows member states to create such an exception within their copyright laws but does not require it, so different countries naturally have taken different positions.

The UK has an explicit right under section 62 of the Copyright, Designs and Patents Act 1988, originally dating back to the Copyright Act 1911. Ireland’s Copyright and Related Rights Act 2000 (s93) and Australia’s Copyright Act 1968 (s65) provide the same rights.

For comparison, the USA would be pale green on this map — the equivalent law, 17 USC 120(a), excludes pictorial representations of buildings from the architect’s copyright, but does not provide the same exception for public works of art.

In other countries — notably France, Italy and Greece — there is absolutely no such right. In theory, in Italy, for example, when publishing pictures of “cultural goods” (buildings, sculptures, paintings and so on) for commercial purposes one must obtain authorization from the Ministry of Arts and Cultural Heritage.

Recently, the Legal Affairs committee (JURI), has just adopted French centrist MEP Jean-Marie Cavada’s amendment to the report, removing Freedom of Panorama rights across the EU (and EFTA) member-states by adding the following text to the following paragraph to Julia Reda’s report to the Eu Parliament’s review of the Copyright Directive (2001/29/EC):

“Considers that the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorization from the authors or any proxy acting for them”.

A restriction to Freedom of Panorama to non-commercial use would therefore bring millions of Europeans into conflict with copyright law over their perfectly harmless, everyday online usage.

The restriction of Freedom of Panorama would also greatly complicate the business of journalists, professional photographers or documentary filmmakers, whose activities are clearly commercial, but who have for decades been able to rely upon the public space as a resource that can be used freely by anybody without having to negotiate a license first. If one goal of copyright law is to stimulate the creation of new art and information, this change would clearly be counter-productive. In contrast to some artists relying on the public space to create their works, the main source of income for architects certainly isn’t the sale of illustrations of the finished building.

It’s easy to see that the overall effect of a restriction of Freedom of Panorama for creators would be negative.

The Plain Packaging Saga

Two of the world’s biggest tobacco companies, namely Philip Morris International (PMI) and British American Tobacco (BAT), have recently filed lawsuits against the UK Government over its plan to introduce plain packaging for tobacco products. Both PMI and BAT argue that the measures deprive them of property in the form of trademarks, and are seeking compensation that could extend to billions of pounds if they succeed. 

“We respect the government’s authority to regulate in the public interest, but wiping out trademarks simply goes too far” said Marc Firestone, PMI’s senior vice president and general counsel. “Countries around the world have shown that effective tobacco control can co-exist with respect for consumer freedoms and private property.”

The measures, which are planned for a 2016 introduction, have been opposed by Big Tobacco companies from day one. The power of the tobacco industry to market their products has been slowly eroded, to varying extents, by legislation in countries around the world. In the UK, advertising was phased out between 2003 and 2005, and in 2012, tobacco products were banned from display in supermarkets and large shops.

In the claims filed to the High Court, PMI and BAT also claim the measures violate European intellectual property laws. The Department of Health responded  it would not let policy “be held to ransom by the tobacco industry”.

Lawyers for the Government are understood to be confident that all legal aspects of the new measures have been taken into account. But even if unsuccessful, tobacco companies may be hoping legal action will delay implementation or discourage other countries from taking similar action.

Indeed, as long as tobacco remains a legal product, then the owners of cigarette brands can make the argument that they shouldn’t be treated differently to other consumer products. 

Australia introduced a similar ban in 2012 with the aim of reducing smoking and is facing challenges at the World Trade Organization which say that the law creates illegal obstacles to commerce.

By Martina Clochiatti

The Court of Rome Rules on Copyrights Published on Facebook

The court of Rome reaffirms the application of the rules of copyright for the pictures posted on the social network by establishing that publication of photos on the Facebook page of the person who has taken them "does not involve the complete waiver of the relative copyright".

According to the Court, the freedom of use of the content posted by users by setting the 'Public' function does not cover the content that is published and which covered by intellectual property rights of users, for which the only license is the non-exclusive, transferable granted to Facebook". Under this principle the author of some photos published on Facebook was awarded damages against a newspaper that had published the same without permission.

The case stems from the publication of some photos on the personal page Facebook of a young photographer shot in nightclub in Rome. The photos then appeared, unknown to the author, in a national newspaper in support of a series of newspaper articles, related to the phenomenon of frequenting nightclubs by persons of young age and subsequently re-used by some programs television of national importance.

Swatch Can't Revive IP Row Over Panavision's 'Swatchball' Trademark

Film equipment company Panavision Europe Ltd. on Tuesday nixed a suit brought by Swiss watchmaker Swatch AG in European Union General Court alleging Panavision infringed its trademark with its "Swatchball" film editing product, with the court finding the companies' products are too different to constitute infringement. 
The three-judge panel in Luxembourg found that although both marks contain the word "Swatch," the watchmaker's argument that the relevant public is likely to link the marks falls flat because the products are dramatically different. Swatch was ordered to pay costs for the proceedings.
"The absence of similarity between the goods and services in question and the differences between their relevant publics ... are such that they are liable to exclude the existence of any link between the marks at issue," the ruling said. "[Swatch's] argument is inoperative inasmuch as the application for registration at issue explicitly excluded goods and services relating to timekeeping."

The decision also noted that the two companies target different consumers.

The ruling upholds a November 2013 ruling by the Office for Harmonization in the Internal Market's Board of Appeal.