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Mind your L’s and M’s: Licensing & Merchandising – Part 1

Merchandising is an extension of a brand into new categories. Any merchandise is created by securing license of different Intellectual Properties such as themes, images, songs or dialogues of a film, characters etc. It is in the past decade that Movie Merchandise and Character Merchandise has gained popularity in India.

According to the industry reports, global licensing & merchandising is a huge business with its top 125 licensors accounting for sales amounting to more than US$ 184 billion. Disney is the largest global player and has generated sales of US$ 28.6 billion in 2010. The Major Baseball League was the biggest sports league in the sport-licensed merchandise segment with sales of around US$ 5 billion in 2010. Popular film franchises such as Star Wars, Harry Potter and Cars have generated licensed merchandise sales worth more than US$ 10 billion since their respective launches.

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Intellectual Property Protection for Computer Programs – Part III

In continuation to the previous post in this series, we will today be looking into copyright protection of computer software. As discussed in the previous post, Copyright Law came as an answer to the protection of computer programs at a time when the importance of Trade Secret Law for the same was dwindling.

A computer program, being composed of source codes can be brought under the ambit of literary works in Copyright Law. The basic principle governing Copyright Law is the idea / expression dichotomy. As per this principle, Copyright Law only protects the expression of ideas and not the ideas per se. While talking about the principle of the idea / expression dichotomy, it should be admitted that there has always been a lack of clarity regarding what constitutes an idea and what constitutes an expression. This inherent lack of clarity in Copyright Law combined with the complexity of a computer program prevents Copyright Law from being an effective system of protection.

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copyright

Fair Use vs. Copyright Infringement

As part of Sinapse’s Blog-a-thon, we will be discussing a few interesting Copyright Cases involving famous personalities from various fields.

1. Cariou vs. Prince

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Photograph: Patrick Cariou - 2000; Adaptation: Richard Prince – 2008(both via artnet

Richard Prince, the well known appropriation artist – one who transforms the work of others to create new meaning in his work was sued by Patrick Cariou, a lesser-known photographer, when Prince used several of Cariou’s photographs in a series of collages that were sold for tens of millions of dollars.

Richard Prince, for an exhibition in the Gagosian Gallery, appropriated 41 images from a photography book by French photographer Patrick Cariou. Prince claimed Fair Use for creation of his work which was objected to by Cariou calling it a blatant Copyright Infringement. While deciding this landmark dispute, although Cariou initially won at the District Court level, the Second Circuit reversed the Court’s findings in favor of Fair Use for Prince, noting that Prince’s work transformed the work in a way that it was aesthetically different and thus acceptable under the argument of Fair Use.

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Trademark

Part I: Descriptive Marks – Can they be protected?

In India, a Trade Mark means a mark capable of being represented graphically and capable of distinguishing goods or services of one person from those of others. These are the basic requirements for a mark to be eligible for Trade Mark protection laid down under Section 2(1)(zb) of the Trade Marks Act, 1999. Apart from these qualifications, a mark should also not fall under the category of the marks mentioned under Section 9 and 11 of the Trade Marks Act, 1999.

In this category, are Descriptive Marks. One can ask a lot of questions about Descriptive Marks, some of which have easy answers.

What are Descriptive Marks? As per the provision, descriptive marks are those which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or services. Such marks can include words like ‘best’ describing quality of a product, ‘mega’ describing the size etc.

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Traditional Knowledge Digital Library: Boon or Bane? – Part 2

Carrying forward the series, in continuation to the previous post, today’s post will discuss the most effective ways of searching the digital library.

Traditional Knowledge Resource Classification (TKRC), an innovative structured classification system for the purpose of systematic arrangement, dissemination and retrieval has been evolved for about 25,000 subgroups against few subgroups that were available in earlier versions of the International Patent Classification (IPC), related to medicinal plants, minerals, animal resources, effects and diseases, methods of preparations, mode of administration etc.

The database can be searched in two ways:

  1. Simple Search: Single and multiple search terms can be used with the operator ‘OR’. However, the use of operator ’AND’ is not supported. Terms to be searched may be entered or selected from corresponding help menus. The corresponding menu lists all the search terms available in this database and can be used to select the appropriate search term.
  2. Advanced Search: This option allows search using several search terms such as Keywords, Disease, IPC Code, Bibliography and Title, each individually specified. All these terms can be selected from appropriate search menus. Other features of Advanced Search include:

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Intellectual Property Protection for Computer Programs – Part II

In continuation to the previous post in the series, we shall now be looking into the system of IP protection for computer programs that existed prior to the adoption of Copyright and Patent Laws.

Though it can be said that Copyright and Patent Laws are the more popular systems of IP protection for computer programs, it was Trade Secret Law that was initially resorted to for the protection of software, primarily because, previously, computer programs bundled with systems, were not sold through retail channels of distribution. Manufacturers could protect their technology through contractual agreements and Trade Secrets. The only requirement for such a protection was that the source code of the software had to be kept confidential.

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Trademarking one’s Name in India

It is quite common for famous personalities to trademark their names to prevent misuse and commercial use. Trademark rights supplement a celebrity’s personality rights, and help in preventing others from using their names, nick names or screen names for products or services. While it is quite common in the West for personalities from film stars to football players to trademark their names, this has not picked up very well in India.

It seems, however, that many personalities like Shah Rukh Khan, Kajol, Yash Chopra, Daler Mehndi etc., have filed trademark applications on their names, and some of them prevent misuse aggressively. With the explosion of merchandising in India, there are several products appearing on the scene bearing not only a celebrity’s persona, but also their name, or the short form thereof, like SRK. If the trademark is registered, the celebrity will have the option of bringing a trademark action along with an action for the violation of celebrity rights and other causes of action.

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Of Trademarks and Alcohol – The Beer Battle

Recently, a small brewery called Double Barrel Brewing, changed its name to Eastwood Brewing. This change in name was brought about after it received a Cease and Desist Notice from a California based brewery, Firestone Walker Brewing, founded in 1996, and which owns the trademark “Double Barrel Ale”, based on which said Notice was issued.

This was not the first time Firestone Walker Brewing forced a brewery to change its name. Another brewery by the name Double Barrel was forced to change its name a little while ago. Though Firestone’s trademark lawyers show great success to their client, one would wonder how someone can own such a descriptive trademark, and how it can be so easily enforced.

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Pokemon out to Catch ‘em All!

3-D Printing, as defined by WIPO Magazine, basically means creating an object via its digital blueprint, created using Computer Aided Design (CAD), where 2 dimensional representations are fed through a printer that starts building an object layer from its base, finally eliminating all unnecessary material, to produce the desired form. This process of growing objects layer by layer means that with 3-D printing, it is possible to create more objects than can be done using traditional manufacturing techniques.

Quite recently, Pokemon Co. International, sent a Cease and Desist Notice to Shapeways Inc., demanding that they refrain from selling their 3-D printed planter as reported in Animenews and Bloomberg.com. According to Pokemon Co. International, this planter infringed the character, Bulbasaur, of the Pokemon fame. Planters were being listed in the name of “succulent monsters” and not as Pokemon.

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Threatened Co-existence of Breeders Rights and Patent Rights

Innovation has always been focused on existing plant varieties which scientists use for improvements and for which breeders’ exemption (the right to use protected plant varieties in their research and claim ownership of the results) is granted. But patents don’t provide for a breeders’ exemption and researchers will have to pay for access to patented materials used in their research, if they are allowed access at all. Patent stacking has become common practice – it refers to taking out patents for different aspects of a single innovation, forcing several royalty applications and payments.

From the very beginning Plant Variety Protection Law has contained a special provision that the breeder’s rights shall not extend to acts done for the purpose of breeding, or discovering and developing other plant varieties. It already appeared in Art. 5(3) of the 1961 UPOV Convention and can still be found in Art. 15(1)(iii) of the 1991 UPOV Convention and in Art. 15(c) of Regulation 2100/94 on Community Plant Variety Rights [1994] OJ L227/1. It speaks for itself that this rule has also been laid down in many national Plant Variety Protection regulations ever since.

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