Global Brand Protection – How to Manage an Anti-Counterfeiting Program

For every successful brand, it is critical to properly protect and to productively develop and use the underlying intellectual property (IP) in that brand to ensure its long-term growth.

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AI Art Registration Denied – The Copyright Review Board Tells Applicant To Gogh Home

Last Fall in this space, we discussed the U.S. Copyright Office’s AI Initiative launched in early 2023. Among other things, the Initiative’s portal compiles registration decisions for AI-generated materials. Particularly instructive is a December 11, 2023 decision by the Copyright Review Board affirming the denial of registration to an AI-generated artwork. As detailed below, when determining the copyrightability of the “SURYAST” work, the Review Board provides practitioners and future applicants with more articulated standards to be applied when a party seeks to register a work that contains AI-generated content.

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UK Supreme Court rules on AI and Patent Applications

In a much anticipated judgment, the UK Supreme Court delivered on 20 December 2023 its ruling in the case of Thaler v Comptroller-General of Patents, Designs and Trade Marks (Thaler (Appellant) v Comptroller-General of Patents, Designs and Trademarks (Respondent) – The Supreme Court) on whether an artificial intelligence (AI) system can be named as the inventor for a UK patent application.

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A Win for Skinny Labels; Insights for Enforcing Use Patents

Most drugs are covered by multiple patents, with initial patents directed broadly to the compound and later patents directed to increasingly narrower uses of the compound. This provides opportunities for the compound to be approved as a generic drug before expiration of all of the patents, based on a “skinny” label – i.e., a label restricted to uses not covered by the later “use” patents. This strategy is contentious. It provides for competition but sometimes results in infringement due to off-label use of the generic drug – a delicate balance. In the case of H. Lundbeck A/S et al. v. Lupin et al., the Federal Circuit confirmed that an appropriately crafted skinny label cannot be the basis for a finding of infringement. Its ruling may encourage the strategy, but also provides insights for development and enforcement of use patents.

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A Proposed Likeness Law Paves the Way for a New Federal Right of Action

In the age of generative AI, it is easier than ever to make an unauthorized AI replica of our favorite celebrities. Using AI algorithms, deepfake technology can create authentic-looking, fictional reproductions, making it quite difficult to spot the difference between a real and a fake. Many of us see AI generated songs and recordings on the internet every day, but rapid advancements in this technology pose rising threats for well-known performers, as well as ordinary people, who have little control over their digital presence.

Senators hope to pass legislation that would recognize the copyright and right of publicity issues associated with using another person’s voice, image, and likeness without first obtaining consent. On October 12, 2023, a bipartisan group of Senators announced a draft bill called The Nurture Originals, Foster Art, and Keep Entertainment Safe Act, (“NO FAKES Act”). Sponsored by Senators Chris Coons (D-DE), Marsha Blackburn (R-TN), Amy Klobuchar (D-MN), and Thom Tillis (R-NC), the bill’s goal is to regulate the creation and use of digital replicas and provide standardized rules around using the likeness of another.

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How Artificial Intelligence is Changing the Game of Professional Sports

We previously reported that artificial intelligence (“AI”) is changing the landscape of all aspects of our modern economy. The world of professional sports is no exception. Emerging technologies are transforming the games we know and love. From player recruitment to athlete recovery, AI’s integration into sports is opening doors for optimized performance and real-time risk analysis. As more teams and organizations employ the use of AI, counsel should be aware of the ways their clients can and do leverage AI. A critical eye should focus on the relevant legal issues: including both state and federal regulatory developments, data privacy concerns, and how AI tools could potentially affect the applicable intellectual property (“IP”) rights.

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People Don’t Come to See the Tattoo, They Come to See the Show

In Cramer v. Netflix, Inc., 3:22-cv-131 (W.D. Pa. Sep. 18, 2023), the plaintiff brought a lawsuit alleging copyright infringement because a photograph flashed on the screen during the “Tiger King 2” documentary depicted a tattoo of the now famous “Tiger King” (a/k/a “Joe Exotic”), that the plaintiff tattoo artist had inked. Because ownership of original works, like a tattoo, vests with the author (here the tattoo artist), the tattoo artist owned the copyright in the tattoo, even though it was physically on the someone else’s body.

That tattoo in question came about as the result of a contest that the tattoo artist put on during the beginning of the Covid pandemic. Specifically, while on lockdown, she became concerned about her ability to earn income as people were unable to come in for tattoos. As a way to supplement her income, she put on a contest whereby her social media followers would buy gift certificates for future tattoos and would get to vote on one of several funny tattoos that would eventually be tattooed onto the artist’s husband. Ultimately a tattoo of Joe Exotic won the contest.

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Proactive Strategies in IPRs after Allgenesis

A recent Federal Circuit decision, Allgenesis Biotherapeutics Inc. v. Cloudbreak Therapeutics, LLC, provides some interesting insights into patent challenge strategies, and their consequences, when a potentially infringing product is not yet on the market.

Allgenesis, which has been developing a pterygium treatment product using nintedanib, filed an inter partes review (IPR) petition to try to invalidate one of Cloudbreak’s patents relating to pterygium treatment. Allgenesis lost at the Patent Trial and Appeal Board (PTAB), which issued a final written decision upholding the patentability of the challenged claims. The PTAB’s decision included a finding that Allgenesis’s own patent application, on which Allgenesis based a number of its invalidity arguments, was not prior art to the Cloudbreak patent.

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Federal Circuit Rules That Mark Cannot Be Cancelled Due To Fraudulent Incontestability Declarations

The Federal Circuit recently issued a decision with important ramifications on how petitions for cancellation due to fraud will be handled by the Trademark Trial and Appeal Board (“Board”) going forward.

In Great Concepts LLC v. Chutter, Inc., the Court, with a 2-1 majority, found that the Board wrongly cancelled the registration of a trademark holder due to the filing of a fraudulent declaration by its former attorney to obtain incontestable status of the trademark “DANTANNA’S.” The Board had historically held that it possesses the authority to cancel registrations altogether due to fraudulent incontestability declarations, thus, the panel’s ruling presents a clear rejection of that practice.

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G7 Endorse Voluntary Code of Conduct for Advanced AI Systems prior to UK Global

2023 has been the year that governments, regulators and international organisations have all sought to get to grips with the challenges of regulating AI including the publication in April of the UK government’s policy paper outlining its proposed approach to AI regulation; the EU’s AI Act which may shortly become the world’s first piece of AI specific regulation; and the Whitehouse Blueprint for an AI Bill of Rights in the US.

In addition to the challenge of the fast-developing nature and potential use (and misuse) of AI, a common challenge which all regulators have faced is the international nature of AI. Put simply AI does not respect international borders and so any nation seeking to regulate its use has to accept that cannot be done isolation or by reference to borders alone.

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