Using first names as style names to assist consumers in distinguishing between certain items, styles or washes within a collection is a widespread practice in the fashion industry. Compared to numerical identifiers, names may trigger emotions and are much easier to remember. Style names may be used in manifold ways, e.g. on labels sewn in the inside of garments, hangtags and boxes or in advertising material such as catalogues and offers on the internet. What many companies do not realize is that the use of style names involves legal risks. Many names are already registered as trademarks, which may give rise to trademark conflicts. Continue Reading
Are APJs Constitutional? The Supreme Court Will Review Arthrex
On October 13, 2020, the U.S. Supreme Court agreed to take up the question of the constitutionality of the Patent Trial and Appeal Board (PTAB) under the America Invents Act (AIA). The Supreme Court will review the decision of the Court of Appeals for the Federal Circuit in what has become well known as the Arthrex case.
Potentially thousands of PTAB decisions in the eight or so years since the AIA came into force are at stake, depending on how the Supreme Court rules on the Federal Circuit’s decision. At minimum, a number of pending PTAB cases that have been stayed pending this appeal will be stayed for a while longer. Continue Reading
UK Begins Review of National Gambling Legislation
The UK government has started its review of national gambling legislation, likely to result in the introduction of a new Gambling Act. New measures could include tighter restrictions on gambling sponsorship and advertising, such as gambling operators no longer being allowed to advertise on the shirts of sports teams or any other visible part of their kit. It is worth noting that Italy has already passed strict legislation in this area and Spain is set to follow. Details of Spain’s proposal are available in a post published on our sister blog, Sports Shorts.
Actual Definitions Can Help Avoid Erroneous Constructions of Patent Claims
On August 27, 2020, the Federal Circuit issued a decision in Baxalta Inc. v. Genentech, Inc. overturning the District Court’s ruling that Genentech did not infringe the claims of US Patent No. 7,033,590 and remanded for further proceedings. The Federal Circuit’s decision was based on its finding that the District Court’s claim construction was erroneous because the statements in the patent regarding the term “antibody” were introductory not definitional. This case demonstrates the importance of providing clear definitions for each term in a patent specification and creating a clear record during prosecution. Continue Reading
Changes to VAT and Early Termination Payments
Following the recent decision of the Court of Justice of the European Union in Meo (C-295/17) and a related case, HM Revenue & Customs (“HMRC”) has updated its guidance on the VAT treatment of contractual compensation payments for early termination of commercial contracts. Such payments, irrespective of whether described as compensation or liquidated damages, will now be subject to VAT. Continue Reading
USPTO and DOJ Promoting Innovation and Collaboration in Life Sciences
Beginning September 23, a free two-day workshop will address issues relating to innovation by life sciences companies, including IP and antitrust issues arising from collaborations and partnerships. The US Patent and Trademark Office (USPTO) is co-sponsoring the event with the Department of Justice. The program will address the role of patents in the research and development of therapeutics, diagnostics, and vaccines — particularly during pandemics —and the relative benefits of collaboration vs. competition. Continue Reading
At 40 Years Old, the Orange Book Gets a Fresh Look as FDA Seeks Comments on Patent Listability
Back in June, the United States Food and Drug Administration (FDA), “as part of an Agency-wide effort to modernize the Orange Book,” published a request for comments relating to patent listing. Apparently prompting this request was FDA’s recognition that New Drug Application Sponsors have “submitted patents for listing in the Orange Book, including certain types of device-related patents and REMS-related patents, for which there may be uncertainty regarding whether these are in fact the type of patents that must be submitted.” Continue Reading
USPTO to Defer Fees on COVID-19-related Provisional Patent Applications
On September 16, 2020, the United States Patent and Trademark Office (USPTO) announced a new pilot program for COVID-19 related inventions. The new program allows for the deferral of filing fees for provisional patent applications directed to a product or process related to COVID-19, where the product or process requires Food and Drug Administration (FDA) approval for COVID-19 use. In exchange for the fee deferral, the applicant must allow the technical subject matter disclosed in their provisional application to be made publically available in a searchable database the USPTO’s website immediately upon filing. This new and interesting program is intended to facilitate innovation. Continue Reading
Italian Competition Agency Investigates Major Cloud Computing Service Providers for Allegedly Unfair T&Cs
The Italian Competition Authority (AGCM) has recently launched investigations against global leading providers of cloud computing services. AGCM is concerned that the service providers’ terms & conditions violate Italian consumers’ protection rules.
In particular, AGCM alleges that the investigated providers are engaging in unfair business practices consisting of:
- improper collection of user data for commercial purposes;
- undue influence on consumers, whose consent to the collection and use of their personal data for commercial purposes is required in order to use the cloud storage service; and
- failure to clearly provide consumers with information on their right to withdraw from the contract and/or to access alternative dispute resolution mechanisms.
Time to Act Against Chinese Parallel Import of Foreign Cosmetic Products
Parallel import is not easily tolerated by brand owners. Parallel import products, sometimes referred to as grey market goods, create market distortions, attack the official supply chain, double the risk of product liability and dilute trademarks. Brand-owners know, however, that trademarks are not a viable tool to stop parallel import of foreign cosmetic brands into China, as the first sale of these cosmetics abroad exhausts their exclusive right in China.
However, holders of trademark rights on imported cosmetics in China can now take action against parallel import if the importers have violated local safety and product quality regulations, modified the product, or failed to adapt labeling to local mandatory requirements. As recently as 2019, legislative changes in China have opened to foreign cosmetic brands a strong and reliable avenue to stop parallel import of their products into China, while allowing them to import their not yet FDA-approved products through designated e-commerce platforms. This window of opportunity may close soon, however, if and once animal testing is abolished in China, which may happen as early as January 2021. Continue Reading
