20 November, 2014

One Taste to Rule Them All - Can You Trademark a Flavor?

Tastes and preferences are as varied and as complex as there are people, yet some distinct combinations truly are above everything else (should you take this writer's word as gospel - which you shouldn't): basil and tomato; chocolate and chili; milk and tea - the list goes on and on. With that in mind, a distinct and successful flavor combination can be the ticket to prosperity for a lot of restaurants or food-related businesses, and locking that combination down quite valuable as well. Although recipes were discussed on this blog in more depth not too long ago, a recent case has emerged dealing with the question that's on everyone's lips: can you trademark a flavor?

The case involving the flavor-fight was New York Pizzeria Inc. v Syal, in which the subject matter near-and-dear to many New Yorkers' hearts (i.e. arteries), pizza, was disputed. New York Pizzeria, a franchising company for pizzerias, brought this lawsuit against their former employee, Adrian Hembree (although against his alleged co-conspirator, Ravinder Syal), who had acted as the company's Vice-President and as a franchisee in its restaurant business. Mr. Hembree's term of employment was ended, and he subsequently went on to found a competing chain of restaurants; Gina's Italian Kitchen. Mr. Hembree had brought a lawsuit against NYPI for an alleged breach of his termination agreement, after which NYPI took on Mr. Hembree for alleged acquisition and transference of internal documents and recipes to Gina's in order to create a knock-off restaurant. Further, NYPI asserted that Mr. Hembree had gained access to NYPI's internal network through another franchisee's account, passing the details onto Mr. Syal, who then downloaded internal documents from said network. The case discussed the matter quite broadly, as many different counts were alleged by NYPI, of which only a few relate to the question posed above.

The beef of the intellectual property argument by NYPI is brought under 15 USC section 1125, as NYPI claim that the defendant infringed its trademark in the flavor of its food, and the trade dress of its goods as to the food's plating. Should a flavor be considered a possible trademark, under section 1125 Mr. Syal could face a civil action for the infringement of that trademark or its possible dilution.

Great flavors can lead to unpleasant results, no matter how delicious
As was seen in Qualitex v Jacobson Products, discussed by Justice Costa in the case at hand, a trademark can potentially be "...almost anything at all that is capable of carrying meaning" - even a flavor, at least prima facie, as long as it indicates a source for the goods: "[T]he essence of a protected mark is its capacity to distinguish a product and identify its source". If a flavor can be so distinct and so unique that it indicates an origin which is undoubtedly a single restaurant or creator, you could argue it is within the remit of trademark protection in the US. Realistically this would be very unlikely, but entertains an interesting thought. Arguably flavors would never reach the requisite secondary meaning, i.e. an impression in the minds of the public as to the origin of a specific good, due to the very vague and hard to pin-point nature of flavors as a whole. Several pizza sauces, for example, even if very different in their composition, will all still taste very similar, albeit with small (or large) differences to them, thus not carrying much of an indication as to the sauce's origin restaurant.

The final nail in the coffin of flavor trademarks is the inability to trademark something which is purely functional. Functionality was seen in Qualitex, to encompass "...[which] is essential to the use or purpose of the article or if it affects the cost or quality of the article,' that is, if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage". Limiting the usability of flavor combinations, especially iconic ones such as pizza sauce, would clearly hinder competition, or even extinguish it entirely within the field of pizza making. As said, this was put to rest in Re N.V. Organon, where the US Trademark Trial and Appeal Board saw that "[flavoring] performs a utilitarian function that cannot be monopolized without hindering competition". In the end Justice Costa dismissed the argument of flavor trademarks.

Justice Costa didn't discuss the plating issue in much depth, as arguing a specific plating as trade dress is very unorthodox, but entertained the thought nonetheless. NYPI claimed that its plating of its baked ziti, eggplant Parmesan and chicken Parmesan carried a distinctive look, warranting protection. NYPI failed to express what they were protecting in the plating of the dishes, and how they were infringed, failing their argument quite early on: "[i]n the trade dress context, a plaintiff must articulate the elements that comprise its protected trade dress in order for the court to evaluate the plausibility of its claim". In the end, as said above, the claim failed due to a lack of demonstration on NYPI's part, but Justice Costa thought the argument could have warranted more discussion: "...NYPI knows how it plates its food, and it could have easily identified what is distinctive about the plating that might warrant trade dress protection".

Similar views have been expressed here in the UK, with an application for a "Taste of Artificial Strawberries" failing to pass the threshold of trademarkability due to its lack of distinctiveness. This echoes US precedent, and arguably would be the right decision in light of the law and public interest in the non-restriction of flavors in the marketplace. In this writer's opinion the future of flavor trademarks seems very grim, but as a connoisseur of all things culinary, I am quite glad that the world of food isn't shackled by commercial interests; at least not unduly.

Source: JDSupra

13 November, 2014

Generic Stuff - Food Packaging and Intellectual Property Law

Remembering back fondly to ones childhood often elicits images of Saturday mornings, watching cartoons and eating cereal poured from colorful cereal boxes. Yet a shadows of this memory is when your parents buy the generic brand, often simply grabbing something from a store shelf thinking it's the brand that their child loves, missing the folly in their ignorance and disappointing their young ones with less flavorful alternatives to their desired sugary morning treats. Thinking back, the disappointment probably was not as palpable as my memory serves me, but this illustrates a point of contention in intellectual property law; how close can you brand your foodstuffs as a generic brand when compared to more popular variants of a given food item? The goodwill and reputation, which many food manufacturers strive for for years, even decades, often seems easily exploited in the sphere of food packaging, yet, at least prima facie, their goodwill and make-up should potentially be well within the sphere of intellectual property law, and therefore quite protectable. The extent of this protection merits further discussion, especially in today's highly competitive world within the shopping jungle of grocery stores.

What prompted this writer's interest in this topic was an article published on the IPKat (originally brought up in an article on Yahoo! News), which discussed the seemingly blatant copying of popular brand items by Aldi in their store brand equivalents, especially in the remit of chips sold in a tubular container, and the mentioned use of similar packaging in cereals. Could Aldi's practices infringe on the brands' rights in the UK or abroad?

Some protection could be offered by copyright, should the packaging contain a work which can be categorized as protectable under the subject matter. Images on packaging, or even more stylistic or intricate designs, could potentially be considered an artistic work under the Copyright, Designs and Patents Act 1988 (and similar laws abroad), and even the writing used on the box (stories, challenges and other items on the back for example). The image has to have no artistic merit to it for it to be protected, but still has to be considered original. Although not the primary avenue for protecting packaging, it can still address the issue at a much shallower level. Arguably most goods will not infringe on copyright, even if they resemble the name brand goods quite a lot, as you would have to make a copy of the work (in simplistic terms), and a mere imitation might not be enough to argue copyright infringement, as a box for foodstuffs would be a long-shot to argue as a form of expression worth protecting.

Trademarks, under the Trademarks Act 1994 (and other similar provisions), are the more 'obvious' choice when it comes to protecting your brands, and certain foodstuffs are covered under the subject matter such as the name "Pringles" or "Froot Loops". Primarily trademarks only assist in the protection of names and logos (such as Captain Rik), and as such are much weaker when the logo, name or other trademark isn't directly copied or a similar variant used. Clearly, should Aldi (or any other business) deviate from those, they would arguably be in the clear.

The darker side of store brands: underpaid mascots
As for design rights, unregistered designs under the Copyright, Designs and Patents Act 1988  protect the shape or configuration of a good; i.e. how it looks like form wise, and not in terms of it's 'get-up'. This would be hard for Aldi (or others) to infringe unless a good has a very specific shape to it, such as a triangle box in stead of the typical box design. Under the registered designs regime through the Registered Designs Act 1949, a design can be registered should the appearance in part or as a whole have a specific look to it, including colors, shapes and even textures. The design has to have individual character, which can be simply said to entail something which is unique to that product, and isn't too generic, while also having to be novel. Arguably this is the hurdle where most foodstuff packaging stumbles in registered designs, as it would be nearly impossible to say that merely a certain color scheme or variation thereof would be novel and individual to that particular item. This in mind it is very possible for generic brands to imitate the look of a cereal box, even if the color scheme would be very identifiable for that particular brand.

In the US there is the concept of what is often referred to as 'trade dress', which is protected under 15 USC section 1125, making it quite usable in this instance, although not in a UK context. Under the Act a product can infringe upon the trade dress of another product under certain circumstances: "[If it] is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities". Arguably this would be very hard to prove, at least prima facie, but should a brand take the time and effort to compile sufficient evidence as to likely confusion and detriment on their end, trade dress could be a useful tool in the area of consumer goods. In the UK an avenue functioning much akin to the US provision above would be passing off (discussed more in depth on this very blog here); however the threshold of proof required is very hard to overcome, especially in an instance where the passing off isn't obvious and clear.

As one can see the world of consumer goods and foodstuffs is a treacherous and difficult area of law in which to wage your battles, and arguably most brand owners will not benefit in fighting this fight. Superior quality, goodwill and marketing will serve a better purpose than paying your lawyers to take on Aldi for its generic items; however as a legal professional it is a bit of a no-no to admit this. One can still appreciate the impact of generic goods and confusion related to them, with studies indicating that consumers are very likely to buy store brand products when they look like the name brand item, and a relatively high percentage of purchases having been mistakes due to the similarities. In the end this would be a matter which would have to be addressed by the legislature, but in a competitive world having choice and a cheaper option can still be good for business and the consumer - just not necessarily the brand owner.

06 November, 2014

Fake Goods and the Internet - ISPs Face Trademarks

Counterfeit products are big business. Some estimates have put the sale of counterfeit items at a billion dollars in 2013, and anyone who has traveled around mainland Europe has probably seen people sell "authentic" designer bags off pieces of carpet on the street (and who doesn't like purchasing their luxury goods in the great outdoors). The only issue with selling blatantly on the street is the sheer visibility of your transactions, with the added issue of a very limited quantity of items for sale. The more genius members of the business have since moved onto the World Wide Web, pushing their goods to the willing masses on the great waves of the Internet. The law hasn't fully adapted to this change, with a clear difference in the protection of so-called intangible counterfeit goods (piracy etc.) and more physical objects and their intangible attributes such as trademarks. Amidst this uncertainty the protectability of trademarks in this space was brought up in the English courts, and has since been taken on by the UK Court of Appeal.

The case in question was Cartier International AG v British Sky Broadcasting Ltd, which dealt with the company Richemont, which owns several luxury brands such as Cartier and IWC. As Richemont's goods are highly sought after and quite valuable, six websites were started, aimed at selling and advertising goods using Richemont's trademarks in doing so. The website's donned such fantastic domains as www.cartierloveonline.com and www.iwcwatchtop.com, clearly aimed to confuse and befuddle those who are less savvy on the information super highway. As such Richemont wanted to halt the websites' operations, and approached the courts to impose an injunction to block the websites.

What remains the bigger question in this case is whether such a block is possible under the current law, or as was framed by Justice Arnold: "First, does this Court have jurisdiction to make an order of the kind sought? Secondly, if the Court has jurisdiction, what are the threshold conditions, if any, which must be satisfied if the Court is to make an order? Thirdly, are those conditions satisfied in the present case? Fourthly, if those conditions are satisfied, what are the principles to be applied in deciding whether or not to make such an order? Fifthly, applying those principles, should such orders be made in the present case?"

Under section 97A of the Copyright, Designs and Patents Act 1988 the courts can impose an injunction against an Internet service provider; however the issue presented to the court is that under section 97A the courts can impose an injunction only "...where that service provider has actual knowledge of another person using their service to infringe copyright". As such there was no issue of copyright infringement in the case, as only Richemont's trademarks had been potentially infringed, and no provision allowing for injunctions in the event of trademarks being infringed exists in the UK.

The Court of Appeal's message to trademark infringers
This lead to some extreme juggling of current laws and whether such an injunction was possible bar an express mention of such a power, although this was meant to have been implemented by the UK under the Information Society Directive. Justice Arnold was faced to examine whether this omission was supplemented under section 37 of the Senior Courts Act 1981, through which "[t]he High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so". Agreeing with precedent, Justice Arnold saw that an injunction under section 37 of the 1981 Act would not contravene the Supreme Court Act 1981, allowing for the High Court to afford the injunction as a final decision should it do so.

Justice Arnold discussed the conditions which have to be fulfilled before a court may award the aforementioned injunction: "First, the ISPs must be intermediaries within the meaning of the third sentence of Article 11 [of the IPR Enforcement Directive]. Secondly, either the users and/or the operators of the website must be infringing the claimant's trade marks. Thirdly, the users and/or the operators of the website must use the ISPs' services to do that. Fourthly, the ISPs must have actual knowledge of this. Each of the first three conditions follows from the wording of Article 11 itself.".

Applying the conditions to the case Justice Arnold quickly saw that all of the requirements had been fulfilled. First, British Sky and the other ISPs acting as defendants can be said to be intermediaries within the meaning of the Directive without much question. Second, as Richemont owns the rights to several infringed trademarks in the case, such as Cartier, IWC and Montblanc, used in in the six websites dealt with in the case, the websites clearly infringed on those rights. Third, due to the ISPs role as intermediaries, although are not prima facie used for the infringement directly, because of their integral role in the conveyance of the infringement to Internet uses they are used for the infringement, irrespective of a contractual relation between the infringer and the ISPs. Finally, through evidence it was easy for Richemont to establish that the ISPs did indeed have actual knowledge of this infringement and chose not to act on it. Because of this the requirements are fulfilled, and Justice Arnold could award the injunction.

The case can be said to be very important in a UK perspective, and potentially as an international precedent. Through the decision rights holders have a remedy to address the infringement of their rights outside of just copyrights online, potentially allowing the curbing of counterfeit sales online (although this writer will admit it seems like a long-shot it would be ever fully eradicated). Nevertheless, this remedy can be argued to have been needed, and in the absence of intervention by the legislature, should stand as an avenue for trademark enforcement on the Web.

Source: World Trademark Review

27 October, 2014

Retrospective - Copyright in Video Games

If you're oblivious to gaming and the strong attraction that a virtual world has on today's people, you will have missed arguably one of the biggest changes in the entertainment landscape since the emergence of the TV. With this great appeal comes great monetary worth, and something which is very desirable to protect, especially on part of the creators of very popular gaming titles. The difficulty in the protectability of video games stems from their complexity and in the fact that most popular games emulate one-another within certain genres of games, making them quite similar to the casual observer. Where does a game's protectability start from and where does it end? This question was answered first when gaming was in its infancy, but still remains quite relevant in today's world of gaming and law.

The case in question was Atari v North American Philips Consumer Electronics, decided by the United States Court of Appeals in 1982. The case dealt with the well-known game Pac-Man, created by Atari and Midway in the sunrise of the 1980s, which sold a staggering (at the time at least) 7 million copies. In the wake of Pac-Man's popularity a similar game, K. C. Munchkin, was created by North American Philips. Due to the incredibly similar styles and mechanics of both games Atari sued North American for copyright infringement, which ultimately was decided by the US Court of Appeals 7th Circuit.

The court initially described the copyrighted work in question, which, to the uninitiated, consists of a maze-like playing area, where the player controls the Pac-Man creature, moving him through the maze collecting pellets and fruits, accumulating points as they go. In addition to this the game contains four characters which pursue the main character, often called ghosts, which try to touch Pac-Man, thus 'killing' the character and having the player lose a life. Pac-Man has the capability to fight back, however, through the consumption of bigger pellets, enabling him to eat the ghosts and thus collect more points and avoid losing lives for a brief period of time. K.C. Munchkin is incredibly similar in its design, with a maze-like playing area, four ghost-type pursuers and the collection of pellets, bigger pellets and fruit. Its board design is slightly different, with the maze being slightly taller, and containing hazard elements such as dead-ends, with a slightly different shaped corral area for the ghosts than in Pac-Man. Finally, K.C. Munchkin contains far less pellets in the playing area, and uses a different style to the look of its main protagonist.

After initial discussion relating to the facts of the case the court turned its attention to the meat of the question; whether a game can be a subject matter protected under copyright, and whether the defendant's work infringed upon that work. The former is a much more straight-forward application of copyright law, yet the test for infringement of that work, if found to be copyrightable, is, as stated by Justice Wood: "...whether the accused work is so similar to the plaintiff's work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff's protectible expression by taking material of substance and value". This test only applies to the parts of that work, which are deemed protected, and not any other included parts, even if infringed.

Even game characters have their issues (Source: The Rut)
As decided in Chamberlin v Uris Sales Corporation: "...copyright protection does not extend to games as such". One has to observe that, even if copyright does not subside in games as such, it still can protect parts of those games, not the 'idea' of a game. At the heart of it, the assessment is an assessment of whether what is sought to be protected is merely an 'idea' or the expression of that idea, which is quite protectable. Should the expression and the idea be nearly indistinguishable from one-another, i.e. it is not possible to express said idea in more ways than one, it is difficult to afford protection for that expression. This was well iterated by Justice Browning in Kalpakian: "[w]hen the "idea" and its "expression" are thus inseparable, copying the "expression" will not be barred, since protecting the "expression" in such circumstances would confer a monopoly of the "idea" upon the copyright owner free of the conditions and limitations imposed by the patent law".

Could you therefore protect the 'idea' of Pac-Man as a game? The court did not see much difficulty in answering this question, quickly determining that the work is mostly not protectable; however its components could very well provide "...new or additional [things] over the idea". How the game is displayed, in graphics and music for example, allows for those particular elements to be protectable, yet the 'idea' of a game where the protagonist is chased in a maze cannot be by itself.

An important point raised by the court in the case are certain elements in the game (or games in general), which can be viewed as scenes a faire, or as explained in Alexander v Haley "...incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic". The maze and the score boards can be said to be indispensable to games such as Pac-Man, and arguably others, and thus not protectable. K. C. Munchkin was viewed by the court to have no infringed those designs, and to have been sufficiently different in its expression. What the court saw infringing Pac-Man's copyright was the character design within K. C. Munchkin. They had copied both the protagonist and the antagonist ghosts nearly identically, infringing on Atari's copyright in the expression of those ideas. Even if slight differences still existed, they will not by themselves preclude the finding of infringement. The court ultimately saw that "[a]lthough not "virtually identical" to PAC-MAN, K. C. Munchkin captures the "total concept and feel" of and is substantially similar to PAC-MAN". The court therefore reversed the previous decision and agreed to grant an injunction against K C. Munchkin.

Similar thoughts have been echoed in the UK, illustrated by cases such as Nova Productions Ltd v Mazooma Games Ltd, where the protected subject matter in a game was deemed to be the expression of the idea of a game, and how a game plays was seen as something which can be copied, as long as the visual and audio of that game was not.

What the above case illustrates is the initial considerations of video games as a protectable subject matter under copyright. As technology advances more and more, and games have surely come a long way since Pac-Man, the differentiation of what is copyrightable in a game and what isn't could be said to become more difficult. Even so, this case remains an important landmark in the development of the area, and shows that even dot eating circle creatures can be an expression worth protecting.

21 October, 2014

Tunneling Through the Internet - VPNs and IP Law

Today's Internet users are more savvy and capable than ever before, and many users' desires for "free" content often leads them to find ways through which to attain that content, even if it's potentially skirting the law using a variety of technological means. Although piracy by itself is a hot topic these days, and often misunderstood (the discussion of piracy and theft on this blog here), the discussion revolving around the subject matter can lead to hyperbolic statements or even the misunderstanding of technological means and their legitimate uses in light of online copyright infringement. One such technology is what are called "Virtual Private Networks", or VPNs, which allow you to create a secure connection through a network service to the public Internet at large, masking who you are and where you are through that service. These connections are also often encrypted and secured through a number of ways, which can be used for both legitimate and questionable uses. Even so, whether the use of VPNs is against the law is not exactly clear-cut, and merits some discussion.

Although sometimes stigmatized, much like in a recent statement by the BBC to the Australian government stating that: "...[suspicious] behavior may include the illegitimate use by Internet users of IP obfuscation tools [such as VPNs] in combination with high download volumes", VPNs do serve a legitimate and arguably useful function. Should an individual wish to mask their Internet traffic from potential government surveillance or the monitoring by any other third parties (irrespective of the nature of your activities online), VPNs handle this quite well. Such an example lies just with are friends in Australia, where new laws have been discussed giving certain bodies potentially free roam in the monitoring of Australians' Internet usage. The proposed law has flared up interests in such services, and one can argue that given such broad tools some level of obfuscation can be said to be reasonable, whether you infringe copyright or not online.

But at the heart of this lies the question of legality, and as said above, this is not wholly straightforward. VPNs enable you to view content which is often not available due to licensing issues beyond certain borders, of which a great example is Netflix, which's offerings vary quite drastically depending on where you are. As such you would not imagine, as a paying subscriber, that accessing said content could infringe any laws, especially since you are paying your dues. Yet those licensing agreements are there for a reason, and weaseling your way to see that content can be a moral and legal grey area.

Some networks are probably not worth accessing  
An argument as to the moral side of things was put forth by Simon Haupt, who argued that "[p]aying for the... service means your money goes to whoever holds the [local] rights for the shows on Netflix. If you're watching [for example] the U.S. service, the rights holders... aren't getting their fair share". This can be argued to be slightly misleading, and as proved by Michael Geist, is indeed disingenuous to an extent, as Netflix for example, pays the same amount for the shows it provides no matter how many times or where they are watched from. Although certain licensing issues can be argued, such as if a show is licensed exclusively to a certain company in country A, but people in that country watch it through Netflix from country B, which was not intended due to the exclusivity of that agreement. This could potentially deprive that party of the commercialization of that work, but is still a hard thing to argue, especially against the users themselves.

Under the UK Copyright, Designs and Patents Act 1988 section 296ZA, a company with an exclusive right to the copying or communication to the public of a work has the same rights of enforcement against a person who circumvents, or attempts to do so, any technological means through which said works are protected. Although, at least prima facie, it is quite hard to argue in terms of geo-blocking, one could potentially argue that VPNs and their use in the viewing of restricted content might infringe copyright through section 296ZA. This can be easily countered by the simple fact that it would only apply to the circumvention of exclusion through non-payment of a subscription fee for example, and not so much regional restrictions.

Similar provisions exist elsewhere in the common law as well. The Australian Copyright Act 1968 prescribes under section 116AN that the circumvention of protection measures infringes copyright, potentially including regional locking. The Australian position on whether regional locking is truly a 'technological measure' is still up in the air, but not an entirely impossible inclusion. In the US the old Computer Fraud and Abuse Act protects content from being accessed from non-authorized computers, potentially including geo-blocked content, although no case law has taken that notion on as of yet.

But as one can see the use of VPNs is a true pickle, and has no clear and easy answer as to its legality. Although mounting pressure is being put on the enforcement of regional restrictions on companies such as Netflix, this writer for one highly doubts it will be a legal battle worth waging unless there is a drastic change in the tides of copyright legislation. As for now we're all able to enjoy our forbidden fruit across the pond through services we enjoy and pay for, but be warned: you might experience restrictions on through the companies themselves eventually.

Source: Lawyers Weekly

13 October, 2014

Birds Of A Feather - Twitter and Copyright

Social media has changed how we interact with others, both online and to an extent, in real life, but its impact on creativity and the spreading of such materials is unrivaled, with content that goes 'viral' producing unprecedented revenue figures in recent years. With this in mind, capitalizing on such successes for others seems like an easy opportunity to make some money, and using social media to do so gives us all an avenue where it's both effortless and instantaneous. One such platform is Twitter; something which most people are aware of these days (even this blog has its own Twitter account). For the hopelessly uninitiated, Twitter allows you to share content, be it links, statements or quotes, with relative ease to all of your followers (and their followers, should they choose to share - i.e. retweet - your content), but allows you to only do so within the limit of 140 characters. With such restrictions, and the medium itself considered, would a tweet be enough to merit copyright protection? Furthermore, can you infringe copyright by tweeting someone else's content?

Whether tweets are indeed protected by  copyright is an assessment of whether they can be deemed to be literary works under such regimes. The Copyright, Designs and Patents Act 1998 in the UK, and other similar laws within the common law, does not set out any word or character limits to what can be deemed as a literary work. Should the tweet itself be original, and admittedly this writer for one has seen his share of funny or interesting tweets over the years, it could be considered a literary work and thus be protected by copyright. Tweeting about pictures or videos one has made does not in itself afford copyright protection to that particular tweet, but the copyright in those standalone works still quite well exists by its own merits. This question does not have a straightforward answer at the end of things, but should your Twitter output be interesting, funny or creative enough, you can rest easy your 140 character gold will most likely be protectable.

Some tweets are less 'original' than others, quite frankly
Copyright infringement on the other hand is a wholly different beast when it comes to Twitter, and as stated above can be something your average tweeter might not think about in the casualness of the medium. Albeit not exactly a tweet, an advertisement in the New York Times used a tweet by A. O. Scott, a film critic of some note, as a form of endorsement (one which was not approved by the critic himself) landed them in a bit of hot water, and prompted a conversation on whether tweets carry copyright protected subject matter. As can be seen above they arguably do, and this instance further enforces that notion. Some estimates have put a worth of several thousands of pounds on a celebrity's tweet, which only goes to show that even without much literary merit, a tweet can still be quite valuable, and therefore, worthy of protection. Using other people's tweets therefore can be an issue, should one do so without proper authorization.

But getting back to your average Twitter user; can you infringe copyright by retweeting someone else's tweet? Should someone post a tweet which infringes copyright, say an unauthorized excerpt from a famous book, containing an integral part of the story, one could potentially infringe copyright by retweeting that same excerpt. Should that part be deemed substantial enough to infringe copyright under the CDPA 1998, a retweet could very well infringe copyright. Again, retweeting and infringing copyright has no clear-cut answer, and given the length of each tweet, infringement would have a much harder time if dealing with more extensive works and excerpts of those works in the twittersphere.

Albeit a very brief consideration, one can see above that Twitter does provide us with an interesting sphere in which copyright resides. Most users of Twitter are incredibly casual with the medium, and although it will probably not cause any major issues for most copyright holders, some frequently more hilarious tweeters might want to be on their toes when they hear the birds chirping.

04 October, 2014

Cigarette Smoke and Olive Green - Australian Plain Packaging Law Challenged

Cigarettes and smoking have always been a controversial topic, especially in the last few decades. From misconceptions as to cigarettes' health benefits in the early-to-mid 1900s, to a more modern understanding, the topic often polarizes both sides of the discussion regardless if you smoke or not. Whether it is purely a deterrent ideology or a perspective from which you want to enforce and strengthen individual responsibility, smoking really has no answer for either side. A gallant effort at the reduction of smoking, especially in younger individuals, with nearly a third of 16 year olds having had at least tried smoking, is the plain packaging initiative, which has been either debated or even started in some countries in the last few years. One of these countries, Australia, instated their plain packaging laws, the Tobacco Plain Packaging Act 2011, some few years ago, showcasing a 15% drop in smoking rates between the Act's introduction and the year 2013.

The Act's life, albeit right now in its infancy still, has not been an easy one, and the Act has since been challenged at the WTO by several countries. The dispute, dubbed "Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging" essentially deals with potential damage to the tobacco industry in Australia as a result of the Act, or as put forth in the complaint by the Ukraine: "...erode[s] the protection of intellectual property rights [and] impose severe restrictions on the use of validly registered trademarks". Arguably the Act does just that, but under proper justification; the denial of trademark usage can be balanced with a public interest health wise. This was countered by the Ukraine: "...[it] considers that governments should pursue legitimate health policies through effective measures without unnecessarily restricting international trade and without nullifying intellectual property rights as guaranteed by international trade and investment rules". What the Act does is not nullify the rights guaranteed by the Australian Trade Marks Act 1995, but skirts the law by preventing those marks' use. The marks themselves are still quite valid, just not usable in all instances.

When does 'plain' become 'too plain'?
Australia has protected its plain packaging law by stating that "...[it] is a sound, well-considered measure designed to achieve a legitimate objective — the protection of public health... nor is [it] more restrictive than necessary to fulfill its legitimate objective". Arguably, as said above, this is very true, yet the Ukraine does have a point in its argument, at least in relation to tobacco products. Trademarks, especially those relating to tobacco packaging (for example Marlboro and Camel), are quite valuable as they are predominantly how the products are distinguished among a myriad of similar of even identical flavors (as a non-smoker, this writer has no knowledge whether this holds true or not, so please correct me if I am wrong here). As such, rendering them useless in the sphere where they are used strips them of their usability and does impede on their use; however one has to still emphasize the public health concerns which underpin the legislation. Trademarks are a badge of origin relating to quality, authenticity and expertise, yet most tobacco products cause the same health issues regardless of origin or manufacturer, rendering the badge of origin quite useless in the face of health concerns or causation.

The legality, and the purpose behind the Act, was further defended by the High Court of Australia in JT International SA v Commonwealth of Australia, where the Court stated that "There are and always have been purposive elements reflecting public policy considerations which inform the statutory creation of intellectual property rights... [and] Australian trade marks law has 'manifested from time to time a varying accommodation of commercial and the consuming public's interests'". This varying accommodation is just that; the promotion of legitimate rights, but still keeping them in balance with public interests. Health considerations are one of the bigger interests in the public sphere, and are worth defending, even at the detriment to some commercial interests.

Do trademarks then confer a non-restrictable ability to use them? Arguably no, and this was supported by Justice Grummow in the JT International case: "...the TMA, like other trade mark legislation, does not confer on registered owners or authorised users a liberty to use registered trade marks free from restraints found in other statutes". This can be stated to be correct, but a balance still needs to be struck in the event of new legislation that might or might not impede intellectual property rights.

What the decision does, however, is establish a precedent which can be used for or against future plain packaging laws, such as in Ireland or France. The outcome of the WTO panel decision has yet to emerge, but the possible resolution of the dispute seems to lean towards Australia and the TPPA. As explained by Tania Voon and Andrew Mitchell: "...the law applies equally to all tobacco products from all countries, including Australia and New Zealand. The law is also based on years of research showing that standardised packaging will reduce the appeal of tobacco products and enhance the effectiveness of health warnings. Finally, the law implements Australia’s obligations under the WHO FCTC (Framework Convention on Tobacco Control). All these factors enhance Australia’s position in the WTO dispute". Should Australia lose the dispute, the fate of the TPPA would be suspect, and potentially would have to be repealed entirely, setting a precedent to other countries which are a part of the WTO.

This writer for one is intrigued by the prospects of this challenge, but believes that the TPPA will triumph and plain packaging will become more prevalent in the coming years. Its impact on trademarks will be negligible, bar the tobacco industry, which will have to revamp its approach to marketing. Maybe one day we will all reminisce the fancy cigarette packages of yore, or just recoil at the thought of smoking altogether.

Source: The Guardian