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By Martin Douglas Hendry

19/12/19

IP Top 10 – November: Taylor Swift makes a Stand

As the nights draw in and we all prepare for the festive season, a good rest is in order! But things don't simply stop in the world of intellectual property. Here are ten cases in point form this month's IP Top 10.

Smells like Mean Spirit

November saw Marc Jacobs retaliate to a copyright infringement claim from Nirvana L.L.C, attacking the validity of their claim in copyright for the band’s infamous smiley face logo. Nirvana L.L.C initially sought over $1 million dollars in damages, alleging that Jacobs’ ‘Bootleg Redux Grunge’ collection had replicated the symbol purportedly designed by Kurt Cobain shortly prior to his death.

Documents filed by Jacobs rely heavily on the testimony of former band members Dave Grohl and Krist Novoselic; ‘This allegation finds no support in the sworn testimony of David Grohl and Krist Novoselic, the two surviving members of the band Nirvana, who could not identify the creator of the disputed work in sworn testimony.'

The matter looks set to continue into the new year.

More in the Daily Mail here.

99 problems, IP Being One

Jay-Z is suing an Australian company for using his lyrics and likeness in a hip-hop themed alphabet book. ‘AB to Jay-Z’ is a children’s book created by The Little Homie, which includes numerous pop-culture references and includes lyrics made famous by Jay-Z in his infamous song 99 problems.

Jay-Z alleges that The Little Homie has knowingly infringed his registered trade marks as well as copyright through the reproduction of his best-known lyrics.

It is reported that Jay-Z has been pursuing the company for over a year without reaching an agreement, which is now set to be resolved in the courts.

The Standard has more information on this case here.

Trade marks? OK Boomer

Fox Media are one of a handful of applicants who are seeking to trade mark the phrase “OK Boomer” and profit from the emergence of a phrase now famed in worldwide youth culture.

The phrase is commonly thrown at the older generations who are less sympathetic with the views and feelings of the millennials and ‘Generation Z’ of contemporary society.

Fox Media claim that they wish to use the term in relation to a future television series and game show.

However, given the widespread use of the term, it is highly unlikely that any of the opportunistic applications will succeed. Attempts to register popular cultural phrases are not a new phenomenon and rarely succeed.

The New York Times have a take on this here.

Tesla Reveal "Window Wiper" Laser Patent

News broke this month that Tesla is taking further steps to remain at the forefront of technological innovation with the announcement of a laser-based patent for cleaning car windshields.

The system would use cameras to detect debris and then deploy lasers to burn the debris away. The patent features an image of the system which shows lasers mounted on the car’s hood and fender.

A coating of indium tin oxide would be implemented on the car models to ensure that the lasers did no damage to the car or its occupants.

Interesting Engineering.com have a good write up on this.

Photographer sues Prince estate for Copyright Infringement

Madison Dube has filed an action for copyright infringement against the estate of Prince and its associated companies after they allegedly used her images for advertising and merchandise without her permission.

The photographer had collaborated with Prince during the final years of his life, in which they developed a close personal relationship.

However, since his death the claimant asserts that his estate has flagrantly used her artistic material, sometimes crediting her as the photographer whilst failing to negotiate a licence.

The photographer is seeking damages and an injunction to ensure that the infringing activity is discontinued.

Complete Music Update have the score here.

Bottoms up for Highland Park

A Scotch whiskey producer is subject to an action for trade mark infringement in the United States on the basis of “false designation of origin and unfair competition.”

The lawsuit, filed by Joseph A. Magnus & Co, asserts that the Highland Park labelling of its malt whisky bears a similar design and overall appearance to its own ‘Magnus’ labels.

The claimants are seeking an injunction against the infringing use along with damages.

The bottle in question features a “solid black label with stylised white writing and design” and it is likely that the Scottish distiller will look to contest the claim.

The BBC has a good write up here.

David Gilmour left Uncomfortably Numb by IP Dispute

As part of ongoing legal proceedings between former Pink Floyd member David Gilmour and composer Michael Boumendil, this month the claimant appealed the judgment previously given in favour of the defending Pink Floyd icon.

The dispute relates to the use of a jingle Boumendil composed which was then featured in a Gilmour song, as it made him “want to sing and dance.”

The pair initially agreed on the usage and were billed as cowriters on Gilmour’s 2015 single Rattle That Lock. However, the relationship soured when Boumendil contested that the jingle had not been used as planned.

Boumendil initially sought an estimated £450,000 in damages, however the courts have so far been reluctant to accept his claims.

The Guardian have a closer look here.

No Swift resolution in Pop Saga

The ongoing dispute between Taylor Swift and her former record label appeared to escalate this month, as the pop star took to social media to effectively out the Big Machine Label Group and seemingly rally her fans against them.

The dispute is fundamentally based on master-recording rights, as Swift is seeking to rerecord her former hits which fell under the record deal she signed when she was 15 years old.

Her former label, now under the ownership of Scooter Braun’s Ithaca Holdings LLC, has told her that she cannot record new versions of her songs, asserting that she owes millions of dollars.

Clearly it is in none of the parties best interests to allow Swift’s portfolio to effectively collect dust, but a resolution in this dispute remains far off and squarely in the public eye.

The Guardian has a write up on this here.

China announces the strengthening of IP Regime

Looking east, this month China announced plans to raise the national standards of intellectual property protection, including improving the provision of compensation where rights are infringed.

A document released by the State Council and Communist Party’s Central Office called for a strengthening of the regime, to be implemented through both the Civil and Criminal justice systems.

Another area for growth will arise through a more stringent attitude towards penalties and prosecution.

The announcement highlights a target of 2025 by which the improved regime will be implemented, as China look to enhance international cooperation on intellectual property protection and boost their economic competitiveness.

The National Review have more details here.

Netflix overcome Narcos Copyright Suit

Netflix and Gaumont Television have successfully prevailed over a Columbian journalist who sought to claim copyright infringement based on her memoir ‘Loving Pablo, Hating Escobar’.

The specific detail involves a section of the book which was later recreated in the series to show an intimate scene involving a gun. A federal judge had previously told the claimant to narrow her claims, as much of the allegedly infringed expression in her book was not protectable for the purposes of copyright.

However, the case was concluded in a summary judgement from U.S District Judge Rodney Smith, who deconstructed and later ruled on the prospective similarity between the two works.

The Judge concluded that Narcos did not infringe in numerous scenes which were alleged, reasoning that themes of manipulation and power were ultimately unprotectable.

The Hollywood Reporter has the story here.

And that's it!

And that is it for November's IP Top 10~! Our final IP Top 10 for 2019 will appear early in the new year...

So until then, best wishes from the Virtuoso Legal IP Top 10 team~!​

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