A not so kind… Kinder

The Italian Trademark Office recently rejected an opposition filed by Ferrero, owner of the  world know Kinder trademark against an individual who registered the trademark “Kind Milk” in class 29 (milk and it’s derivatives).

Ferrero immediately filed an opposition in front of the UIBM claiming risk of confusion with several registered trademarks owned by the Italian food company, namely “Kinder”, “Kinder Milkosa” and “Kinder Milk Snack Point” as these trademarks are registered in classes 30 and 29 claiming a likeliness of confusion under art. 12 of the Italian Intellectual Property code (CPI).

According to the trademark office the goods covered by the conflicting signs were considered to be identical solely on the basis of what is specified in their applications for registration in the "milk and milk products" and for goods in Class 30 (pastry, confectionery and ice cream) but an alleged similarities between the signs do not exist and there is no risk of confusion among consumers and that the opposition should be rejected totally. 

Consequently, the application for registration of the mark was upheld.

Creative Commons : Ideas Worth Spreading.

An inflexible copyright policy that prevents any type of disclosure could be anachronistic in the digital era. To realize the full potential of the Internet, encouraging a spreading creativity, many possibilities have been thought. Many of them have been just utopian, but one of these showed a revolutionary potential.

That’s the so called “Creative Commons”.

Launched in 2001 by Lawrence Lessig, Professor of Law at Harvard Law School and one of the leading experts of Copyright Law, this project achieved a large success and a wide application in the recent years.

Creative Commons licenses are not against copyright, instead they depend on the existence of copyright. These licenses are legal tools that creators and other rights holders can choose to offer certain usage rights to the public, while reserving some other rights.

Those who want to make their work available to the public for limited uses while preserving their copyright may want to consider using CC licenses. Others who want to reserve all of their rights under copyright law wouldn’t choose to use it. Creative Commons licenses offer creators a wide spectrum of choices between keeping all rights and renouncing all rights (public domain), an approach that we call "Some Rights Reserved."

Creators can choose among different protection regimes. While some of them refrain commercial uses or the sharing of adaptations, others grant just a minimum protection consisting in the paternity right.  The author doesn’t need any authorization or permission before licensing his work under CC, he just has to decide which conditions he wants to apply to his work. Accordingly, each work will be shared with a different disclaimer, an user friendly detailed tag.

Creative Commons is not an alternative to collecting societies, but a no-profit organization. Therefore all licenses can be use for free with any authorization requirements.

In Italy  Creative Commons could be perceived as an obstacle as it could be interpreted as incompatible with the authority granted by the Italian Copyright Law of 1942 to SIAE, the legal monopolistic society for the management of copyright in Italy.

The recent Directive 2014/26/EU states, however, the principle that rights holders should be able to freely choose to entrust the protection of their works to the collective management bodies they consider most appropriate, also to independent management entities, regardless of the state of nationality. The Directive also grants the authors the right to divide the protection of their works between different collecting societies.

The new standards should promote the coexistence of the CC licenses with the traditional collecting societies, to create a more flexible and efficient system of protection.

This system thought by Lessig affirms a belief in copyright, because it is in essence a copyright license, but it also affirms the innate value of those digital environments where the rules of exchange are not necessarily defined by economic criteria.

Switzerland: Absinthe denied geographical indication

The Swiss Federal Administrative Court (FAC) has ruled that the terms ‘absinthe’, ‘fée verte’ (green fairy) and ‘la bleue’ are generic terms, and cannot be used only by Switzerland-based producers of the spirit.

In its August 8 decision, the court overturned a 2013 decision by the Federal Office for Agriculture (FOAG) that confirmed registration for the denominations as protected geographical indications.

The Association interprofessionnelle de l’absinthe’s request for geographical indications was allowed by the FOAG in 2010. There were 42 objections to its decision, and 21 appeals filed at the FAC. In the August 8 ruling, 11 of these appeals were upheld.

The court found that a 2007 survey on which the Association interprofessionnelle de l’absinthe had based its arguments was flawed in “several respects”, as it showed that only a small proportion of people in Switzerland associated the three terms with the Swiss region of Val-de-Travers.

Citing dictionary definitions and usage of the term in legislation, the court said that it considers the denomination ‘absinthe’ to be a generic name.

“The FAC feels that this denomination refers to a type of good, regardless of its origin, and not to a product originating specifically from Val-de-Travers,” it said in a statement on the court’s website.

It also ruled that the Association interprofessionnelle de l’absinthe failed to “adequately demonstrate” that ‘fée verte’ and ‘la bleue’ are not generic names.

“According to the FAC, there is no reason to justify reserving the denominations ‘absinthe’, ‘fée verte’ and ‘la bleue’ solely for producers in Val-de-Travers and therefore the FOAG’s decision of  August 14, 2012 confirming registration of these denominations as PGI [protected geographical indications] must be annulled,” the statement continued.

The judgment is subject to appeal before the Federal Supreme Court.

Sergey Nivens / Shutterstock.com

What is Digital Watermarking and How it Works.

Digital Watermarking is defined as non detectable marking on images, videos, 3D data, audio or text. They can be read by computer assisted methods. Digital Watermarking may contain several different watermarks simultaneously.

Digital Watermarking is used for different purposes. Digital Watermarking helps in the prosecution of copyright infringement. Unlike metadata, Digital Watermarking directly interwoven with the content to be marked, with steganographic methods. In the case of the robust watermark this integration ensures that the elimination of the watermark makes it unusable.

In various research and development projects that focused initially on the area that processes have been developed mainly for commercially relevant content such as audio and video data and 3D models. There are also Digital Watermarking methods such as for marking databases, musical notes, still images and text.

Occasionally, semi-transparent overlays in images or videos, for example, logos or copyright information, mistakenly referred to as digital watermarking. The usage is misleading, as that neither the carrier (image or video) might not necessarily be available in digital form, the Digital Watermarking is read out digitally. A superimposed semitransparent photo lettering is clearly traceable to the origin, without any need of digital technology.

Digital Watermarking has different characteristics; perceptibility denotes the influencing of the quality of the labeled content, robustness, detectability are other points.

The nature of the embedded message is determined by the application. This can be, for example, in the case of the proof of authorship, information regarding the copyright owner. In the general case metadata is embedded; Unique identification number of the contents similar to the ISBN is used in those cases.

Both classes of methods – digital watermarking and digital fingerprinting – belong to the class of passive protection mechanisms. In contrast to active defense mechanisms, such as encryption which is used to prevent unauthorized access to the content.

A special class of Digital Watermarking are reversible Digital Watermarking techniques. Here, the embedded Digital Watermarking can be removed and the original message can be recovered. This brings you the recovery information in addition to the newly introduced. Applications of this reversible Digital Watermarking technique is used in medical image processing.

Internet Copyright Infringement: 5 Myths vs. Facts

If you Run a Website or post to social media you are probably breaching copyright and you don’t even know it!

Myth 1. Once a ‘Work’ is posted online it loses copyright protection. Wrong!

Fact: You cannot use, copy or post someone else’s photo’s, images, songs or articles without their permission. The person who created them owns these ‘works’ and they have copyright protection form the moment the ‘works’ were created and they loose this ownership protection according to their national laws (usually 50 or 70 years after their death).

Myth 2. I can copy a ’work’ online provided I give the owner credit or a link back.

        

Fact: You cannot use other people’s ‘work’ unless they first give you permission. Some websites  say you can use any material from their site provided you link back and give them permission unless it’s specifically granted on the ‘work’.

Myth 3. If I alter the ‘work’ or inly use part of it, I am not breaching copyright.

Fact: Derivative works are still covered by Copyright. The only exception is if you are writing a critique and you are referring to the ‘work’. This is considered fair use.

Myth 4. If there is no copyright symbol or notice the ‘work’ can be freely used.

Fact: there is no requirement to display a Copyright symbol or register any work to have copyright protection. A work is protected from the moment it is created and the owner does not lose their copyright if they don’t use the Copyright symbol.

Myth 5 I can use another person’s ‘work’ as long as I don’t’ profit financially from it.

Fact: you are breaching copyright whether you make money or not. The argument that you are giving the owner free advertising does not count. Any money you make would be taken into account by a court decision against you.

Can a terrorist apply for the Right to be Forgotten?

The right to be informed vs. the right to be forgotten. The latest controversial debate is between those who want to see their name deleted from search engines and those who would like to be informed on biographies of known persons or characters which could be found on web sites like Wikipedia.

 

Lately Wikimedia Foundation reported a certain number of notifications with which Google informed surfers to have deleted some links to Wikipedia following the exercise of the right to be deleted by certain consumers.

Without revealing the name of the applicants, Google explained how to respect the judgment of the European Court of Justice, which guarantees the right to be forgotten (as a result of which Google has received over 90 thousand applications for removal of applicants requesting the right to be forgotten), at least fifty pages of internet encyclopedias have already undergone this procedure. Forty-six pages belong to Wikipedia: among them appears several times the name of the chess player Guido den Broeder and one concerns Gerry Hutch, an Irish imprisoned in the 80s.

One of these requests came from Renato Vallanzasca a notorious Italian mobster who was a powerful figure in the Milanese underworld during the 1970s. Following numerous robberies, kidnappings, murders, and many years as a fugitive, he is currently serving 4 consecutive life sentences with an additional 290 years in prison

Wikimedia Foundation launched an alarm for the defense of freedom of information. " Accurate search results are disappearing from Europe - said Lila Tretikov, executive director of the  Wikimedia Foundation - without any public explanation, no real evidence, no judicial review and no appeal procedure. The result is that unwanted information simply disappears.

Even Google had shown his opposition to the decision of the European Court by the mouth of David Drummond, chief legal officer of the Californian company: "We do not agree with the judgment, it is a bit like saying that a book can be in a library, but can not be included in its catalog. Obviously, however, we respect the authority of the Court and we do our best to adhere to its decisions. "

Why should you protect your IP?

Protecting IP is becoming increasingly difficult, particularly with the proliferation of online sales. The Internet has created an ideal and, often, an almost anonymous selling place for sophisticated counterfeiters of products.

Why should you protect your IP? According to a 2013 report by PricewaterhouseCoopers, the value of the global impact of counterfeit goods and illicit trade is estimated to be US$650 billion per year. That is US$650 billion of lost revenue for brand owners, authorized manufacturers, distributors and retailers of genuine goods.

Ignoring the infringement of IP rights when it arises can dilute the strength of the right itself, undermining distinctiveness (in the case of a trade mark) and the ability to stop future infringement. This has a knock-on impact on the value of goodwill of a business.

The cure? Many businesses elect to protect their IP by registering trade marks, design rights, and patents with the relevant authority (whether that is a national authority, such as the Office for Harmonization of the Internal Market (“OHIM”) or the World Intellectual Property Organization (“WIPO”).

My suggestions of ways in which a brand can strengthen its position vis-à-vis counterfeiters include the following:

• Create a strong brand identity, using the same logos, designs, packaging etc., consistently across product lines.
• Use security features, such as stickers, serial numbers, holograms or mylar/security strips in products to help aid detection of counterfeit goods. These details will also assist in monitoring the security of your manufacturing, distribution and retail processes.
• Create an authorized manufacturing, distribution and retail network for products.
• Make each entity in your manufacturing, distribution and sales chain subject to contractual obligations to protect your IP and report to you any instances where it has become aware of possible infringement, either by itself or a third party.
•  Register your IP with relevant national customs authorities to enable them to detect and detain counterfeit goods that are imported and exported, allowing you to take action, where appropriate.
• Periodically collect and review information about any counterfeit goods that are discovered. You may choose to employ a ‘watching’ service to assist with this monitoring. This information will help you identify jurisdictions and territories where counterfeit goods are being produced as well as any weak links in your manufacturing, distribution and sales chain and the common distinguishing features of counterfeit goods.
• Clearly allocate responsibility within an organization for dealing with infringements and maintain a portfolio of relevant information so that documents such as registration certificates, precedent letters of complaint and text for witness statements are easily accessible.

For any questions on how to protect you IP, feel free to contact: Gianpaolo Todisco at gianpaolo.todisco@tsclex.com