Posts in International

Lidl v. Tesco: Supermarket Wars in Court

Supermarkets compete aggressively for our custom. The entry of upstart discount supermarkets Lidl and Aldi into the market has created new pressures on the established brands, including Tesco— ironically, the original “pile it high and sell it cheap” operation. Supermarkets benchmark their prices against those charged by their competitors and offer loyal customers benefits, including, extremely attractive special offers when customers use their loyalty cards. They are no less aggressive when it comes to using and protecting their trademarks.

What’s Next After Brazil’s Enactment of the Nagoya Protocol

In a significant milestone for the preservation of biodiversity, Decree 11,865/2023, published in the Official Gazette on 12/28/2023, enacted the Nagoya Protocol in Brazil. The protocol, providing for access to genetic resources and the fair sharing of benefits arising from their use, is part of the renowned Convention on Biological Diversity (CBD). The Nagoya Protocol, in force since October 12, 2014, relates to the international commitment of 140 countries, including Brazil, to implement the objective of the CBD on the fair and equitable sharing of benefits from the use of genetic resources and the traditional knowledge associated with them (TK).

EUIPO Refers First Questions on EUTMR Interpretation to Grand Board

The European Union Intellectual Property Office (EUIPO) announced today that it has for the first time referred questions of legal interpretation of the EU Trade Mark Regulation (EUTMR) to the enlarged Board of Appeal. The EUIPO’s Executive Director, João Negrão, asked the Office’s Grand Board of Appeal to weigh in on five questions concerning the practice of “conversion,” which allows an EU Trade Mark (EUTM) application or registration to be converted into one or more national applications when necessary. The process is meant to address situations in which an EUTM faces a ground of non-registrability in one or several Member States; through conversion, “the EUTM applicant can convert the EUTM into one or more trade mark applications in the Member States not affected by the problem,” explained the Executive Director’s Referral of Questions.

An Independent Musician’s Perspective on the TikTok Legislation Before Congress

There are many loud voices making a lot of noise about TikTok right now, and as someone who makes “noise” for a living, I thought I’d provide an independent musician’s perspective on the TikTok legislation before Congress: I hope it passes, both as an American and as a music maker. First of all, this bill restricts TikTok, it does not “ban” the app. It forces the company to cut its ties to the Chinese Communist Party and prevents them from accessing the data of Americans. That’s a good thing. The bill doesn’t mandate or regulate speech, it’s focused on national security. The threat is no secret, it’s real: the Federal Communications Commission (FCC) called TikTok “a clear and present danger” to our country.

Boom in Brazil’s Medical Device Market Creates Patent Infringement Issue

Did you know that Brazil’s medical device market is experiencing a surge, attracting billions in imports annually? This boom, however, is attracting not only legitimate businesses but also those looking to exploit loopholes. On average, more than US$6.7 billion worth of products are imported annually, with around 14,000 new products being introduced every year. One example is the increase in sales of equipment for endoscopic surgeries, given the rise in the number of bariatric surgeries, which already exceeds 70,000 procedures per year.

Understanding the 2024 Amendment to India’s Patents Rules in Light of U.S. Patent Rules

The Indian Ministry of Commerce and Industry, which administers the Department for Promotion of Industry & Internal Trade, published changes to its 2003 Patent Rules in its Official Gazette on March 15, 2024. These rules are known as the 2024 Patent (Amendment) Rules (hereinafter “Amendment”). This article analyzes key provisions of the Amendment in light of U.S. patent rules and practices.

Amid Approval of EU AI Act, Creators Demand Stronger Protections for Rightsholders

On March 13, the European Parliament approved the Artificial Intelligence (AI) Act, a major piece of legislation that lays the legal foundation of the European Union’s (EU) regulation of AI platforms. While the 459-page bill addresses some of the copyright and other intellectual property (IP) issues related to generative AI, European creator groups have called upon the EU’s parliamentary body to create more meaningful mechanisms for IP rightsholders to prevent their works from being incorporated into AI platform training models. Further, questions have been raised regarding the extraterritorial impact of reporting requirements and how they might implicate the development of copyright law in foreign jurisdictions.

DMA Impact Remains Unclear on Deadline for ‘Gatekeeper’ Compliance

As of today, the world’s major platforms—Apple, Alphabet, Meta, Amazon, Microsoft and ByteDance—must be in full compliance with the European Union’s Digital Markets Act (DMA), an EU regulation intended to level the playing field in the digital marketplace. Signed into law in September 2022, the DMA imposed a complex regulatory framework upon the major Internet services platforms that are deemed to be “gatekeepers” (i.e. have a market capitalization of at least €75 billion [$83 billion USD]) due to their dominant market position. These gatekeepers each market at least one “core platform service” (CPS) that connects large numbers of users and business interests.

Apple’s 1.8 Billion EU Fine Foreshadows Increased Regulatory Activity Under Digital Markets Act

On March 4, the European Commission announced that it had levied a fine of more than €1.8 billion ($1.95 billion USD) against American consumer tech giant Apple over app restrictions employed by Apple’s App Store. The massive fine, which the Commission increased to ensure it was sufficiently deterrent to Apple’s anti-competitive practices, is the latest in a series of legal actions within the European Union (EU) to target dominant Internet platforms under competition law.

Harnessing Differences Between U.S. and European Patent Education Systems for an International Advantage in Portfolio Strength

Participants in the U.S. and European patent systems face a rapidly changing landscape as the European patent with unitary effect and Unified Patent Court (UPC) are off to a successful start. The UPC has positioned itself alongside U.S. district courts, the International Trade Commission (USITC), and the U.S. Patent Trial and Appeal Board (PTAB) as a leading patent litigation forum…. Accordingly, participants in these patent systems constantly engage with U.S. and European patent attorneys, and now interact more frequently with attorneys who can represent them before the UPC (“UPC representatives”). This article describes key differences in the training, development, and skill sets of U.S. patent attorneys, European patent attorneys, and UPC representatives.

UK Decision Provides Guidance on Takedown Notices and Unjustified Threats

A large number of businesses trade through online platforms and marketplaces such as Amazon and eBay. Consumers may believe that because goods are listed on a well-known trusted platform, they are authentic, and the sellers have been approved in some way by the service provider. Unfortunately, as too many business owners are aware, e-commerce platforms offer counterfeiters and infringers a relatively easy way of offering their infringing goods for sale. A balance must be struck between forcing online marketplace providers to police intellectual property disputes themselves and allowing businesses to protect their intellectual property rights effectively when they are being exploited via online platforms.

U.S., EPO and Chinese Software-Related Patent Grants Remained Steady in 2023

As an update to my previous posts from 2017, 2019, 2020, March 2021, August 2021, 2022, and 2023, it has now been almost a decade since the U.S. Supreme Court’s 2014 Alice Corp. v. CLS Bank decision. Yet the debate still rages over when a software (or computer-implemented) claim is patentable versus being simply an abstract idea “free to all men and reserved exclusively to none” (as eloquently phrased 76 years ago by then-Supreme Court Justice Douglas in Funk Bros. Seed Co. v. Kalo Inoculant Co.).

Brazilian Lawmaker Introduces Bill to Allow AI as Inventor

On February 20, 2024, a Brazilian congress member, Antônio Luiz Rodrigues Mano Júnior (known as Júnior Mano), introduced a bill to amend the national IP Statute (Law #9,279/96) and regulate the ownership of inventions generated by artificial intelligence systems. Bill #303/2024 proposes the addition of a paragraph to Article 6 of the IP Statute, which regulates ownership of inventions, with the following wording: “in the case of inventions autonomously generated by artificial intelligence system, the patent can be requested in the name of the artificial intelligence system that has created the invention, being the artificial intelligence system considered the inventor and owner of rights arising from the invention.”

GIPC’s International IP Index Shows Stagnation in Legal Frameworks Among Global IP Leaders

On February 22, the U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC) released the 2024 International IP Index, which provides an annual snapshot of the impact of legal developments in intellectual property (IP) on the innovation ecosystem in dozens of nations across the world. While this 12th version of the GIPC’s index noted some positive developments in national IP frameworks, stagnation among the recurring leaders of the IP Index is a major concern given growing efforts by governments to control prices in critical sectors of the economy, especially in pharmaceuticals.

Members of Congress Blast Biden on March-In Proposal and Pandemic Accord

A bipartisan group of 28 members of congress, including Senate IP Subcommittee Chair Chris Coons (D-DE), Ranking Member Thom Tillis (R-NC) and House IP Subcommittee Chair Darrell Issa (R-CA), sent a letter yesterday to President Biden urging the administration to reconsider its December proposal to allow agencies to consider pricing in deciding whether and when to “march in” on patent rights. Also yesterday, four bipartisan senators wrote to National Security Advisor Jake Sullivan in opposition to the negotiating text of the World Health Organization (WHO) Pandemic Agreement, warning that it “would undercut—if not destroy—the very aspects of our innovation ecosystem that just recently produced such positive results.”