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By Virtuoso Legal


IP Top 10 September: Banksy’s IP Catch 22

Welcome back to the IP Top 10. In this edition, Banksy experiences an intellectual property catch 22. Let’s not waste any more time and get straight underway.


Banksy's "Flower Thrower" Temporarily Unprotected And Pending Appeal

The graffiti artist Banksy, whose real identity is unknown, created "Flower Thrower" in 2005 and registered the image as a trade mark in 2014 (through representation).

After that, Full Colour Black, a greeting card company sold products with the artwork reproduced on them, and then applied for the cancellation of Banksy's "Flower Thrower" trade mark - on the ground of bad faith, arguing that he had no intention of making any commercial use of it.

The cancellation division of the European Intellectual Property Office agreed, declaring the trademark invalid, even though Banksy upon the threat of cancellation had began use of various designs in an ironic pop up shop - merely to circumvent the non-use provisions under trade mark law. The EUIPO found this to be bad faith usage and not sufficient to prevent invalidation.

As such, the only means by which Banksy could prevent commercial use of their works by others would be to enforce their copyright - which would require him asserting their authorship legally, and thus revealing their identity. Although, the EUIPO in its decision alluded to the debate over whether graffiti art could be awarded copyright protection as it arises from a criminal act and it placed in public places for all to view and photograph which may be sufficient to annul copyright.

This has left the anonymous artist in somewhat of an IP catch 22...

Reveal his identity and attempt to protect their work from being commercially used - or remain anonymous and see others make use of their unique pieces and erode their unique message?

What is guaranteed is that Banksy's next move will be an interesting one.

To find out more, the Independent has a write-up.



Aboriginal Flag: Free Or Protected?

The Aboriginal flag was designed by Harold Thomas in 1994, initially as a protest flag but, today, in usage as an official flag representing the people.

What many people did not know until the past was that the flag was subject to copyright, and therefore legally limited its use.

In this case, the flag is not owned by the Australian government but by Aboriginal artist Mr Thomas, and as the sole owner, who has leased the right to use the flag exclusively in physical and digital media to a rights management company.

Upon receiving cease and desist and copyright enforcement notices, members of the Aboriginal population stated that they feel part of their cultural identity has been appropriated and have rallied around a campaign called "Free the Flag".

What's your opinion? Should copyright prevail in this instance?

For more on the case, the BBC has it covered.




Taylor Swift's copyright wrangle: can she 'Shake It Off'?

Surpassing 10 million views and sales this year, Taylor Swift's famous song 'Shake it Off' copyright status has come into question.

This month, a Los Angeles judge has accepted a lawsuit filed by the composers of "Playas Gon' Play" of the 3LW group, considering that there are similarities between compositions to examine the subject.

Taylor Swift's line of defense, for his part, is to argue that the expressions "hater's gonna hate" and "players gonna play" are public domain expressions, and widely used in compositions of other musicians.

Visit The Independent for more on this case.



Lady (A)nita White Claims Ownership Of Her Name

Lady Antebellum is a country band that decided to change it’s name last June to "Lady A" for personal and social reasons as the name had connotations relating to slavery. 

A problem has emerged however in that "Lady A" is the stage name of Ms. Anita White, a blues singer, who has used the moniker since 1990.

As a result, Ms. White has brought an action against the country band on the account that her name belongs to her and that confusion will cause a loss of sales.

So far, no response has been filed by the country band who is seeking to negotiate with the singer.

The hope is for a harmonious conclusion.

For more information, the BBC has more on this case.



Simply Orange Juice's Opposition To The Request To Market Yogurts "Simply"

Simply Orange Juice Company (SOJC) is a company who produce natural fruit drinks and smoothies.

The company filed an opposition against, Simply Free Foods, who had sought to use the trade mark for yoghurts.

SOJC alleged that whilst this was not a juice or smoothie product it would be damaged should the mark be allowed. SOJC had marks registered for SIMPLY ORANGE, SIMPLY LEMONADE, SIMPLY LIMEADE, SIMPLY in a stylized font and others dating back to 2003.

Law Street Media has the latest on this case.



Lionel Messi Uses His Surname As A Trade mark Despite Massi Brand

In 2011, footballer Messi tried to launch a sports brand with his surname. Given the similarity to the preexisting "Massi" cycling brand, and the confusion that this could generate for consumers, a legal contest was initiated.

The EU General Court considered that consumers were highly unlikely to confuse both brands given the global scope of the player's public knowledge.

The Court of Justice of the EU has now dismissed the appeal brought by Massi, EUIPO and the EU intellectual property office.

Therefore, the EU considers reputation as one of the main elements for determining the existence of potential confusion for consumers.

For more on this case, BBC News has more.



DR Dre's Ex-Wife Seeks Trade Mark REvenues in Divorce Proceedings

In divorce proceedings, Nicole Young claims her ex-husband Dr.(An)Dre Romelle Young transferred co-owned trade marks into a holding company to limit his liability in divorce proceedings.

Remarkably, the Youngs are reported to have co-owned trade marks to DR DRE and THE CHRONIC - before the alleged transfer was made.

In the acrimonious proceedings, the validity of the pre-nuptial agreement allegedly ripped up by Andre is also under question.

Music News has more on this here.



Dr. Alex George Plans To Make His Fortune With ‘Oh Hell’

Following his time on the popular ITV show Love Island, popular contestant Dr. Alex George has sought to register his infamous catchphrase "OH HELL" as a trade mark.

After having also registered "DR ALEX", the NHS frontline worker is now looking to exploit these brand for a range of merchandise.  

The Daily Report has more here.



New Features Added To The 'glasses' Accessories Patent For iPhone

A new patent from Apple gives a peek at their vision for a new interface.

Apple has registered a continuation patent for an iPhone accessory that allows you to watch videos using glasses.

Although it was filed in early 2019, after some difficulty, the company's patent has finally been published.

However, being a continuation patent, this implies that the exact time at which the product is intended to be marketed is unknown since the idea was initially developed 12 years ago.

As is commonly said: good things come to those who wait! Let's hope we don't have to wait for 12 years more to see what Apple has fought so hard over.

For more information, Patently Apple has the latest.



Long Battle To CRISPR Patent

The attribution of the invention of the hotly contested CRISPR genome is in a patent battle between the University of California (UC) and a broad-led group.

On 10 September, the Patent and Appeals Test Board (PTAB) ruled on this, giving priority to the Broad Institute group on patents already granted for CRISPR system uses in eukaryotic cells and the UC group an advantage over a component of the CRISPR toolkit

This decision has been based on the UC group not demonstrating in its initial publication that CRISPR worked on eukaryotic cells, as the Broad Institute group did, and being able to individualize both uses.

This is not a final decision, as the courtwill need to examine the evidence of primary usage at a future hearing and analyze the composition and description by both parties. Stay up to date with next month’s IP Top 10 for more developments.

For the absolute latest on the case, Science Mag has more.

And that's it for our IP Top 10 this month! To speak to any of our team of intellectual property specialists, use the contact form below, or ring the number at the top of the page​.

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