A French New Year’s Dinner and IP Rights

In 1988, the Danish movie called “Babette’s Feast,” based on a story by Danish novelist Karen Blixen (Isak Dinesen), earned an Oscar for best foreign language film. We remember this much-loved movie about loss, survival and the art of French food. For those of you who are interested in IP and are going to share the New Year’s Eve dinner with the very same people you have seen around the table in the last few months, we also offer a few ideas and fun facts about intellectual property in food typically served in France for New Year’s dinner that may help to raise some new conversation topics.

Babette’s Feast depicts a woman who at the end of the 19th century has ran away from Paris and the Commune rebellion and ends up in a small Danish village run by a very strict minister. She is hired as a maid by the minister’s daughters, who cannot really afford a maid, but understand that Babette does not have any place to go. The only connection Babette has kept with France is that she plays lottery and fifteen years later, she wins the Continue Reading

New AIA Rules Implement Hunting Titan and Preserve a Dual Role for the PTAB

On December 21, 2020, the US Patent and Trademark Office (Office) published final rules in the Federal Register, implementing the decision in Hunting Titan, Inc. v Dynaenergetics Europe GMBH as follows regarding motions to amend in inter partes review (IPR) and post-grant review (PGR) proceedings:

  • The patent owner bears the burden of persuasion to show, by a preponderance of the evidence, that a motion to amend complies with statutory and regulatory requirements.
  • The petitioner bears the burden of persuasion to show, by a preponderance of the evidence, that proposed substitute claims are unpatentable.
  • The Patent Trial and Appeal Board (PTAB) may, in the interests of justice, exercise its discretion to grant or deny a motion to amend, but only for reasons supported by readily identifiable and persuasive evidence in the proceeding. Where the PTAB so exercises its discretion, the parties will receive notice, and will be given an opportunity to respond.

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Towards a Better Patent System for Europe: The Unified Patent Court (UPC)

On 18th December 2020, the German Federal Assembly (Bundesrat) approved the law on the Agreement on a Unified Patent Court of 20th June 2013 (UPC-Agreement) with the required two-thirds majority. It was the last puzzle piece for paving the way for a Unitary Patent System in Europe, which is now expected to be operational from 2022. Continue Reading

Happy Holidays from the USPTO — Or Maybe Not

As it has done in the past, the United States Patent and Trademark Office (“USPTO”) has declared Thursday, December 24, in addition to Friday, December 25, to be a “federal holiday.” The action comes as a result of President Trump’s December 11, 2020 Executive Order extending the traditional Christmas Federal holiday. As a result of this extended holiday,  the USPTO will consider all actions and filings with either a December 24th or 25th deadline to be timely if such actions or filings are completed on Monday, December 28. Continue Reading

FTC Cracks Down on Health Claims by CBD Companies

The Federal Trade Commission has just announced a series of six settlements, which included individual monetary penalties, for false advertising by cannabidiol (CBD) companies. The targeted companies made claims that a variety of products containing CBD, including oils, balms, gummies, coffee, and other goods, could treat cancer, Alzheimer’s, heart disease, diabetes, and other serious ailments.

Operation CBDeceit – the first law enforcement crackdown on deceptive CBD claims – serves as a firm reminder about the restrictions on health claims in advertising. The FTC has a longstanding policy requiring that advertisers have reliable scientific evidence to support any health claims made to the public. CBD companies are no exception and must have evidentiary support for any health claims. Continue Reading

Launch of the Review of British Gambling Laws

gamblingLast week on 8 December 2020, the UK Government Department for Digital, Culture, Media and Sport (“DCMS”) announced its review of British gambling laws. As part of its review of the UK Gambling Act 2005 (the “Act”), the DCMS has initiated a call for evidence, which will stay open until 31 March 2021.

This review has been expected for some time and comes as no surprise. The Conservative Party had pledged that it would conduct a review into the Act as part of its Election Manifesto in 2019, referring to the Act as “increasingly becoming an analogue law in a digital age.

Indeed, one of the key aims of the review of the Act is “to reflect changes in the gambling landscape since 2005, particularly due to technological advances.Continue Reading

New AIA Rules Level the Evidentiary Playing Field Pre-Institution

On December 9, 2020, the US Patent and Trademark Office (Office) published some final rules in the Federal Register. For the most part, these rules codified existing Patent Trial and Appeal Board (PTAB) practice relating to whether and how the PTAB institutes an inter partes review (IPR) or a post-grant review (PGR) proceeding, and to the ability of a petitioner and a patent owner to address a PTAB decision on institution.

In one area, the Office amended the rules of practice to change PTAB treatment of testimonial evidence that a patent owner might present in a preliminary response prior to a decision on institution. Now, there will be no presumption in favor of the petitioner if the patent owner’s pre-institution testimonial evidence presents an issue of fact. The amended rules may make patent owners more willing to present testimonial evidence to oppose institution of an IPR or a PGR. Continue Reading

CMA Moves to Investigate ‘Green’ Claims

On 2 November 2020, the UK Competition and Markets Authority (CMA) announced that it will be investigating descriptions and labels used to promote products and services claiming to be ‘eco-friendly’ and whether they could mislead consumers.

The concern for the CMA is that an increase in demand for sustainability could lead to businesses making misleading, vague or false claims about the environmental impact of the goods or services.

The CMA has specified that misleading behaviour could include:

  • Exaggerating the positive environmental impact of a product or service
  • Using complex or jargon-heavy language
  • Implying that items are eco-friendly through packaging and logos, when this is not true.

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Ferrari Loses Race for 250 GTO Trademark: Risks Arising From Non-Use of Registered Trademarks

A gavel and a law book - European unionFerrari 250 GTO, often hailed as the most expensive car in the world, was initially introduced by Ferrari in 1962. Only 36 models of 250 GTO were exclusively produced between 1962 and 1964. The fact that each buyer had to be personally approved by Enzo Ferrari only added to the exclusivity of this particular car model. Because of their exclusivity and the fact, that the existing models are still running, these models became something of a status symbol. One of these models was famously sold at Sotheby’s auction for $48.4 million in 2018, setting the world record for the most expensive car ever sold at auction. A different model of 250 GTO was allegedly sold privately in the same year for a whopping $70 million. Continue Reading

VAT on Compensation Payments in Intellectual Property Settlements

This blog is a follow-up to our recent blog on HMRC’s surprising Changes to VAT and Early Termination Payments. As we noted, HMRC’s updated guidance is proving to be highly controversial.

What’s happened? Folks are unhappy because the updated guidance treats contract termination payments (including for breach or withdrawal or under liquidated damages clauses) as supplies for VAT (i.e. taxable), when they were previously treated as outside the scope of VAT. Continue Reading