Posted: September 30th, 2015
By: Tyler S. Hood* | Staff Writer
On September 17, the federal circuit decided Apple, Inc. v. Samsung Electronics Co., Ltd., the latest patent case decision in a protracted series of smartphone patent infringement battles between the two electronics giants. The case concerned Samsung’s alleged infringement on a few Apple smartphone patents, perhaps most notably the patent for the swipe-to-unlock feature. The District Court had ruled that Samsung had infringed on the Apple patents in question, but the court denied to issue a permanent injunction on the grounds that Apple failed to demonstrate that the infringement resulted in irreparable harm.
Transferred from Flickr by User:Fæ
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Posted: August 16th, 2015
By: Sarah Remes* | Summer Guest Writer
This summer, the Washington Redskins lost. Although defeat is nothing new to the infamous franchise, this time it came off the field when a federal judge upheld the cancellation of the team’s federal trademark registrations, finding that the term “redskin” was disparaging, and therefore that the mark had been registered in violation of the Lanham Act.
The namesake of the Redskins, William “Lone Star” Dietz
The Redskins began defending their trademark registrations in the early 1990s but until recently had been successful in fending off legal opposition. The first major challenge was brought in 1992 when a group of Native Americans filed a petition to cancel multiple Redskins trademarks, claiming that their protection violated the Lanham Act, a federal law that prohibits protection of marks that “consist of or comprises immoral, deceptive, or scandalous; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt.” That case was successfully appealed by the team on two grounds: first, that the theory of laches barred the petition, as one of the plaintiffs was only one year old at the time the Redskins trademarks were registered in 1967; and second that the plaintiffs had not provided enough evidence as to the “disparaging” nature of the trademark, which must have occurred at the time they were registered. While controversy surrounding the name continued to grow – even President Obama couldn’t avoid commenting – legally the team appeared in the clear.
This time, the plaintiffs, led by Susan Blackhorse, were determined not to make the same mistakes. In June of 2014, Blackhorse challenged six Redskins trademarks, again under the Lanham Act, which led to their cancellation by the United States Patent and Trademark Office. Not surprisingly, the team contested the decision, arguing instead that the name represents a strong and proud history that serves to celebrate and pay tribute to Native Americans, not degrade them. “A Redskin is a football player. A Redskin is our fans,” owner Dan Snyder explained. “The Washington Redskins fan base represents honor, represents respect, represents pride. Hopefully winning.” (This last part is definitely still up for debate). On appeal, the court sided with Blackhorse, holding that the trademarks were disparaging at the time of their registration, and should not have received protection.
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Posted: July 26th, 2015
By: Hunt Harris* | Summer Guest Writer
Jillian Michaels, the popular celebrity trainer and former host of “The Biggest Loser,” has filed a $10 million lawsuit against Lionsgate over YouTube videos posted to its channel. Michaels, who recently quit the show for the third time in June 2014, claims Lionsgate has not compensated her for her workout videos that are used on the company’s YouTube channel. The complaint states that “despite receiving millions of dollars in revenue from YouTube, and half of all views on the YouTube BeFit channel relate to Ms. Michaels’ Lionsgate (videos), Ms. Michaels has not received any compensation whatsoever.” Lionsgate’s BeFit, which launched in 2012, has generated more than 200 million views to date and has more than 1.5 million subscribers on YouTube. According to Michaels, Lionsgate “did not consult her before they used her image and brand on the channel, and exceeded the number of videos posted to YouTube allowable under her contract.”
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Posted: July 8th, 2015
By: Amanda Whorton* | Summer Guest Writer
Sketch by Art Lien
Your friendly neighborhood U.S. Supreme Court laid down a crucial decision involving patent royalties and a Spiderman themed toy that has everyone’s spidey senses tingling.
Kimble v. Marvel Entertainment involves a toy Stephen Kimble invented and patented called the “Web Blaster,” which consists of a glove with a valve and canister of pressurized foam, allowing kids to pretend that they are their favorite web-slinging superhero by having string shoot from the palm of their hands. Kimble had previously sued Marvel for marketing a similar toy and their settlement included an agreement that licensed the patent to Marvel in return for royalty payments from its sale. However, the agreement set no end date for these payments. Neither side was aware at the time that a 1964 Supreme Court case, Brulotte v. Thys, made agreements for royalty payments after the expiration of a patent per se unlawful. Kimble urged the Court to overturn this decision, while Marvel argued that Brulotte prevented them from having to pay royalties after the patent expired in 2010. Marvel already paid Kimble $6 million for use of his patent. Continue reading »
Posted: March 16th, 2015
By: Blaydes Moore* | Staff Writer
On Monday, February 9, 2015, a strange thing happened. The comedy-centric television channel FXX aired the pilot of a television show at 1:30 AM. Normally these pilots air in primetime accompanied by fanfare nauseating to even a casual viewer of the station in question, but this pilot was a rush job by a studio that paid for the show to air on TV.
The pilot show, titled Winter Dragon and starring Billy Zane, was the latest ploy in a battle of intellectual property rights epic enough to rival the fantasy contained therein. Winter Dragon is based on the prologue of The Eye of the World, the first book in The Wheel of Time, a series of epic fantasy novels written by Robert Jordan and Brandon Sanderson. With the recent success of HBO’s Game of Thrones, George R. R. Martin’s fantasy epic novels, studios have been searching high and low for the next big thing, and Wheel of Time could be it.
Fans speculated that Winter Dragon was a hurried production intended to preserve the rights to Wheel of Time, and they were right. Red Eagle Entertainment LLC claims to have struck a deal with James O. Rigney (Robert Jordan being a pseudonym) for the film and television rights to Wheel of Time. Following a string of less-than-ideal agreements and productions including video games and comic books, the company tried to make a deal with Universal, but it fell through. Later Red Eagle pursued a deal with Sony Pictures, but that deal failed to materialize as well. Fearing that the rights would revert back to Bandersnatch Group, Inc., run by Mr. Rigney’s widow, Harriet McDougal, Red Eagle rushed the production and put out Winter Dragon, in all its glory, in order to preserve the film and television rights. Continue reading »
Posted: February 11th, 2015
By: Katie Ott* | Staff Writer
Imagine: the Disney princesses, childhood heroes for many young American girls, featured topless with skin and scars for all viewers to see. Viewers of the art have described the images as “disgusting,” “terrifying,” and “propaganda.” But these critics miss the essential point: the princesses’ scars support breast cancer survivors with similar scars from the mastectomy procedure used to treat the deadly disease. The artist, AleXsandro Palombo, explains the paintings honor a woman’s pain connected to “the acceptance of [a woman’s] body mutilated by a mastectomy [which] is one of the devastating moments that is part of the disease.” Continue reading »
Posted: February 9th, 2015
By: Katie Ott* | Staff Writer
The recorded music industry, affluent throughout the 90s, has dropped dramatically in value the past 16 years, now pricing at only half its 1999 peak of $40 billion. David Pakman, a cofounder of the Apple Music Group and CEO of eMusic, largely attributes the industry’s decline to the advent of streaming websites such as Spotify and Deezer.
Largely, music artists have responded to the new streaming medium through allowing streaming sites access to their music; the sites then compensate the artists roughly $.006 per song play. This measly reimbursement has frustrated artists. Taylor Swift, one of the most powerful voices in the music industry, explains her frustrations: “Music is art, and art is important and rare. Important, rare things are valuable. Valuable things should be paid for. It’s my opinion that music should not be free, and my prediction is that individual artists and their labels will someday decide what an album’s price point is. I hope they don’t underestimate themselves or undervalue their art.” To prove her point, Swift pulled her music from Spotify, joining the small group of artists boycotting the streaming process. Their decision, criticized as both unreasonable and inadequate, marks the only artist kickback to seriously rifle the music streaming industries. Continue reading »
Posted: October 4th, 2014
By: Samantha Berner* | Staff Writer
One great aspect of the Journal of Business and Intellectual Property Law is the opportunity for law students to get published. Each semester, the Journal picks a select few submissions from within Wake Forest to be published and featured within each issue. The following three students were selected from the Spring 2014 submissions and tell us a little about their note or comment, their inspiration, and a little bit about themselves.
From Left to Right: Hannah Nicholes, Rebecca Winder, and Chase Smith.
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Posted: August 11th, 2014
By: Kirsten S. Dowell*
Austin Mahone, discovered on YouTube | Photo Credit: User Justinecote1 of Wikimedia Commons.
The platform from which rising artists launch their careers has changed dramatically in the last decade. Since Justin Bieber opened the door for stars to be born on YouTube in 2008, many unknown artists are turning to social media as a way to gain free exposure. YouTube is the world’s third most popular website, and is a natural choice for budding artists seeking fame. One third of teens said being famous is important to them, and teens seeking fame use social media more frequently. The Internet has changed the way people become famous. By uploading songs and videos to YouTube, normal, everyday people, who have no connection to the music industry, have a shot at being discovered and signing a record contract.
While some of these hopefuls have become successful, other artists claim they have had their work used or copied by others without their permission. Katy Perry was accused of stealing the idea for her music video Messages from a YouTube artist last year. More recently, Seth McFarlane was accused of stealing the character Ted (of the movie with the same name) from a YouTube video.
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Posted: June 30th, 2014
By: Eli Marger
“Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived.”- NCAA Division I Manual
College athletics may look simple. It is just another facet of the education industry—for now.
Just like any business organization, a university’s athletic department has revenues and expenses. The money comes in via donations, ticket sales, and conference revenue sharing; it goes out via coach and staff salaries, scholarships, and operational expenses. All of this supports the student-athletes, the ones actually playing the sports.
These student-athletes have been the center of attention recently, and not just for what they do in their respective sports. Currently, student-athletes receive payment in the form of “grant-in-aid” (GIA) scholarships, which is generally the sum of tuition, mandatory fees, housing, and textbook costs. While some may argue that this is more than adequate payment for student-athletes, critics of the current system—including the plaintiffs in the NCAA litigation—say that students should be able to earn money above and beyond the scholarship amount based on their monetary impact on the university. Continue reading »