Category: Intellectual property

Vidal v Elster; Trump too small; and Thomas too small-minded

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| Freedom of Expression, Freedom of Expression, Freedom of Information, Intellectual property

Trump too small, t-shirtsIn Vidal v Elster 602 US __ (2024) (pdf), the US Supreme Court yesterday upheld the refusal of the US Patent and Trademark Office to register “Trump too small” as a trademark. In his opinion for the Court, Thomas J proved himself small-minded both in his approach to First Amendment analysis in general and in his approach to the fraught inter-relationship of trademark restrictions and the First Amendment in particular.

In this case, the plaintiff, Steve Elster, sought trademark protection for t-shirts featuring the slogan “Trump too small” (pictured above left). The slogan refers to a debate in the 2016 presidential primaries when Senator Marco Rubio teased Donald Trump about the size of his hands (with implications about other features). The plaintiff wanted to use it to criticize President Trump in general, and, specifically, to convey “that some features of President Trump and his policies are diminutive”. Section 1052(c) of the Lanham Act (Trademark Act, 1946) (15 USC § 1052(c)) precludes registration of a trademark that (emphasis added):

consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, …

As a consequence of this “names” clause, an examiner from the US Patent and Trademark Office (USPTO) refused the plaintiff’s application to register “Trump too small”, and the Trademark Trial and Appeal Board (TTAB) affirmed.…

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Over 100 International IP Academics Sign An Open Academic Letter in Support of the TRIPS Waiver

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| Intellectual property

WTO and Corona via wto and pixabayOver 100 international IP academics have supported an open academic statement co-authored by Dr Hyo Yoon Kang (Kent Law School), Dr Siva Thambisetty (London School of Economics), Dr Aisling Macmahon (Maynooth), Dr Luke McDonagh (London School of Economics) and Prof Graham Dutfield (Leeds) which provides academic justification and support for the TRIPS Waiver proposal that is currently being negotiated at the World Trade Organisation.

The Irish signatories include Prof Susi Geiger (University College Dublin), Dr Cliona Kelly (University College Dublin), and myself.


From the page announcing the letter:

The letter calls on the governments of the United Kingdom of Great Britain and Northern Ireland, Australia, Brazil, Japan, Norway, Switzerland and the European Union to drop their opposition to the TRIPS Waiver proposal at the World Trade Organisation and to support the waiver.

The letter states that the TRIPS waiver is a necessary and proportionate legal measure towards the clearing of existing intellectual property barriers in order to scale up of production of COVID-19 vaccines and therapeutics. It provides concise legal, political and moral justifications for the need for the Waiver as an integral part of a multi-pronged approach that must also include: global co-ordination of supply chains; streamlining regulatory approval processes and sharing exclusive data from regulatory dossiers; and investment in the WHO’s C-TAP and the mRNA technology transfer hub in South Africa.

…

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The Proportionality of Tobacco Packaging Restrictions on Autonomous Communication, Political Expression and Commercial Speech

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| Freedom of Expression, Intellectual property, Tobacco Control

The Summer 2018 volume of the Northern Ireland Legal Quarterly has been published this morning. Just in time for tomorrow’s seminar, and building on my earlier paper in the QUT Law Review, it contains the following piece by me:

“A Little Parthenon No Longer: The Proportionality of Tobacco Packaging Restrictions on Autonomous Communication, Political Expression and Commercial Speech” (2018) 69(2) Northern Ireland Legal Quarterly 175-211

Abstract
This paper evaluates the constitutionality of statutory restrictions upon tobacco packing in Ireland. It concludes that public health and the protection of children constitute pressing and substantial reasons sufficient to justify the Public Health (Standardised Packaging of Tobacco) Act 2015 and Part 5 of the Health (Miscellaneous Provisions) Act 2017 as proportionate restrictions upon tobacco companies’ freedom of political expression protected by Article 40.6.1 of the Constitution and freedom of autonomous communication protected by Article 40.3.1.

In many respects, Ireland has been a world leader in tobacco control, from banning smoking in the workplace or in cars with children, to requiring standardised packaging. Part 1 introduces this article; it sets out the background to the 2015 and 2017 packaging legislation. Part 2 of this article, on restrictions, describes the restrictions in the packaging legislation.

…

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Some forthcoming legislation on the administration of justice, cybercrime, education, intellectual property, and privacy

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| Blasphemy, Copyright, Cyberlaw, Digital Rights, ECJ, Intellectual property, Judicial Appointments, Legal Education, Privacy, Universities

Government Chief Whip Regina Doherty has announced the Government’s Legislation Programme for the Autumn Session 2016 (pdf). It is a considerable update of the programme published last June (pdf) when the government came into office.

The June programme had the feel of a holding document, published to get a new government to the Summer Recess. This programme has a far more substantial feel about, published to demonstrate the government’s confidence in its capacity to promote and enact legislation.

After the publication of the June programme, I examined proposed legislation from the Department of Education and Skills (here; and see also here), the Department of Jobs, Enterprise and Innovation (here; and see also here and here), and the Department of Justice and Equality (here and here). Under those headings, very little has changed. But there are some notable additions, not least of which is the Interception of Postal Packets and Telecommunications Messages (Regulation) (Amendment) Bill. All we are told is that work is underway on a Bill to “amend various pieces of legislation in respect of electronic communications”. There is no further explanation. This is probably the Bill to provide for further covert surveillance of electronic communications promised by the Minister earlier this Summer.…

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Today is World Intellectual Property Day

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| General, Intellectual property

WIPO IP days posterEvery April 26, the World Intellectual Property Organisation (WIPO) celebrates World Intellectual Property Day to learn about the role that intellectual property rights play in encouraging innovation and creativity:

This year, we are exploring the future of culture in the digital age: how we create it, how we access it, how we finance it. We will look into how a balanced and flexible intellectual property system helps ensure that those working in the creative sector and artists themselves are properly paid for their work, so they can keep creating.

To mark the day, Adapt Centre in Trinity is hosting an event on Technology, Freedom and Privacy in the 21st Century.

Intellectual property (IP) refers to creations of the mind for which the law affords exclusive protection. This legal protection can be provided by legislation (as in the case of patents, copyright, trademarks, and design rights) or at common law (as in the case of passing off, or the protection of trade secrets and other confidential information). Patents [main Irish Act here] largely protect inventions, and the ongoing disputes in courts all over the world between Apple and Samsung illustrate the centrality of patents to modern businesses. They are so important, in fact, that section 32 of the Finance Act 2015 (the 2015 Budget) a patent box, a special tax regime for IP revenues, to encourage research and development, innovation and invention.…

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The IPO takes down a scammer; and opens the door to restitution claims by rightsowners

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| Intellectual property, Restitution

Based on https://pixabay.com/en/road-sign-attention-note-scam-464653/A company calling itself the Intellectual Property Agency Ltd (IPAL) wrote to wrote to holders of patents and trademarks, reminding them that the right required renewal at the UK’s Intellectual Property Office (the IPO), and requesting a fee for the renewal which was considerably greater than the IPO’s.

It’s a pretty common scam. There are warnings against it not only on the website of the IPO, but also on the websites of Irish Patents Office, WIPO, the EU’s OHIM, and the US PTO. Of course, interposing between the IPO and rightsowners, and charging the rightsowners exorbitant fees to renew their patents and trademarks with the IPO, is certainly sharp practice, but it is not necessarily unlawful.

However, the line can be crossed. For example, in the US a criminal case has recently been commenced against the alleged principal in a mass mailing scam targeting holders of US trademarks. Again, in the UK, IPAL went a lot further than many of these scams, misrepresenting that it was the IPO (or, at the very least, officially connected with it). In the Comptroller-General of Patents, Designs and Trade Marks v Intellectual Property Agency Ltd [2015] EWHC 3256 (IPEC) (10 November 2015) (noted here on IPKat), HHJ Hacon held that IPAL had passed itself off as the IPO (the first plaintiff), and that IPAL had infringed trademarks in the IPO held by the Secretary of State for Business, Innovation and Skills (the second plaintiff).…

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