Intellectual Property Law Internet Law IT Law Computer Law

A small exercise for your legal skills. Please identify legal problems and issues concerning those two posters. First one is the advertising poster of Jacek Graniecki’s music achievements, he is better known in Poland as TEDE. The second one was used to promote a movie titled “Karol: A Man Who Became Pope“.

Not so long time ago I’ve published a post titled “Enforcing EULAs“. Meanwhile, looking through the net I found such release as Ahead.Nero.v8.3.2.1.Incl.Keymaker-EMBRACE and I’ve also noticed such a statement in the .nfo file.

EMBRACE, nor its members, can be held responsible
for anything they release. If it is illegal in your
country (as it is in most), you ARE NOT ALLOWED to
use it, under any circumstances. We are in the scene
for the fun, NOT to harm software developers. Good
software deserves your respect, go buy it!

Our software is released “as is”. We are in no way
to be blamed for anything that happens to your pc if
you use this. The author here by disclaims all the
warranties related to this software, expresed or
implid, including damage to hardware/software and/or
any date from the user of this product.

Your use of this product assumes that you have read
and accepted this disclaimer.

Do I need to mention that it is really easy to aviod any legal problems just by the use of free software alternatives? More details regarding this .nfo file are available at www.nfodb.com website. Some of my post that may touch similar issues are gathered under contract law category.

Johnson & Johnson and the Red Cross had amicably shared use of the distinctive symbol since 1895 but in 2004 ARC started to license the symbol to other companies for use in commerce. J&J was annoyed and the judgment in Johnson & Johnson v. Am. Nat’l Red Cross, 2008 U.S. Dist. LEXIS 39113 (S.D.N.Y. May 14, 2008) is the outcome.

I do not want to brag about myself but I wrote once in the post titled “The Law” that I want to write some article. You may wonder what has happened after almost two years since I’ve issued such statement?

Legal context: This article deals with most important legal questions regarding graffiti. It seeks to identify issues that may arise in copyright and trade mark law. The analysis is based on selected international, Polish, UK, US and European Union regulations.

Key points and practical significance: The social phenomenon known as graffiti is not legally indifferent. However, there are few articles dealing with those issues relevant in IP law. The author presents a short overview of the contemporary graffiti movement. He then presents important IP legal problems that may arise as regards to graffiti activity and briefly analyzes those issues relevant to domestic and international legal regimes.

Key Words: Most graffiti is illegal, but that does not mean that interesting IP questions do not arise in relation to this cultural phenomenon. Following a short overview of the contemporary graffiti movement, the author article seeks to analyse some of the basic questions that arise concerning copyright protection and industrial property law. The author calls for a more focused analysis in the future of this controversial problem.

T. Rychlicki, Legal questions about illegal art, Journal of Intellectual Property Law & Practice 2008 3(6):393-401; doi:10.1093/jiplp/jpn058.

May 19, 2008.From 20:30 to 22:30 at Potsdamer Platz 1, 10785 Berlin. Herzlich willkommen. There will be representatives of:
Afro-IP
Catch Us If You Can !!!
Class 46
IMPACT
IP Finance
IPEG
IPJUR
IPKat
Lucentinus
Naked Law
Petit Musee des Marques
Peter Groves
Seattle Trademark Lawyer
SOLO IP
Spicy IP
The Trademark Blog
Transblawg
TTABlog
The first “Meet the Bloggers” was held in San Diego in 2005. Marty Schwimmer (The Trademark Blog) and John Welch (TTABlog) were the first one to meet.

Skype has withdrawn the appeal against a judgment in the case LG München I, Az. 7 O 5245/07 - Welte/Skype, unpublished. Harald Welte has written more details.

The various arguments by Skype supporting their claim that the GPL is violating German anti-trust legislation as well as further claims aiming at the GPL being invalid or incompatible with German legislation were not further analyzed by the court.

The argument that GPL violates anti-trust law was already discussed before the US courts in the case Wallace v. IBM, 467 F.3d 1104 (7th Cir. 2006). Chief Judge Frank Hoover Easterbrook wrote explicitly:

The GPL and open-source software have nothing to fear from the antitrust laws.

Adidas Am., Inc. v. Payless Shoesource, Inc., 3:01-cv-01655 (D. Or. Nov. 8, 2001). $305 million judgment. The issue was a trade mark infringement of 3 stripes. So, that’s more than $100m per stripe as Marty Schwimmer has noted. There are some documents related to this case at Marty’s website too. Adidas is very protective when it comes to this sign/mark. As an example you may read cases that were brought before The Court of Justice of the European Communities. C-102/07, adidas and adidas Benelux.

First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the requirement of availability cannot be taken into account in the assessment of the scope of the exclusive rights of the proprietor of a trade mark, except in so far as the limitation of the effects of the trade mark defined in Article 6(1)(b) of the Directive applies.

C-408/01, Adidas-Salomon AG and Adidas Benelux BV v. Fitnessworld Trading Ltd., OJ C 304, 13.12.2003, p. 5.

1. A Member State, where it exercises the option provided by Article 5(2) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, is bound to grant the specific protection in question in cases of use by a third party of a later mark or sign which is identical with or similar to the registered mark with a reputation, both in relation to goods or services which are not similar and in relation to goods or services which are identical with or similar to those covered by that mark.

2. The protection conferred by Article 5(2) of Directive 89/104 is not conditional on a finding of a degree of similarity between the mark with a reputation and the sign such that there exists a likelihood of confusion between them on the part of the relevant section of the public. It is sufficient for the degree of similarity between the mark with a reputation and the sign to have the effect that the relevant section of the public establishes a link between the sign and the mark.

3. The fact that a sign is viewed as an embellishment by the relevant section of the public is not, in itself, an obstacle to the protection conferred by Article 5(2) of Directive 89/104 where the degree of similarity is none the less such that the relevant section of the public establishes a link between the sign and the mark. By contrast, where, according to a finding of fact by the national court, the relevant section of the public views the sign purely as an embellishment, it necessarily does not establish any link with a registered mark, with the result that one of the conditions of the protection conferred by Article 5(2) of Directive 89/104 is then not satisfied.

Well, what can I say? Such marks and sign will always bring public controversy. I can unmodestly recommend you my post titled “Non-traditional trademarks in Polish case law” and “Reclaim Magenta“.

MDY v. Blizzard, 2:06-cv-02555-DGC (D. Ariz. Oct. 25, 2006). More details, comments and materials are available at www.publicknowledge.org and at free and irreplaceable www.justia.com websites.

Would you like to know how it looks in Poland? In short. The Polish Act on Authors rights and Neighboring Rights of 4 February 1994 (Dziennik Ustaw No 24, pos. 83), consolidated text of 16 May 2006 (Dziennik Ustaw No 90, pos. 631), with later changes.

Art. 75. 1. Unless otherwise provided in the contract, the acts specified in paragraph 4(1) and (2) of Article 74 shall not require the consent of the owner of rights where they are necessary for the lawful acquirer to be able to make use of the program according to its intended purpose, including the correction of errors.
2. The following acts shall not require authorization from the owner of rights:
(1) the making of a backup or reserve copy insofar as such a copy is necessary for the use of the computer program; unless otherwise provided in the contract, the copy may not be used at the same time as the computer program;
(2) analysis and study of and experimentation with the operation of the computer program by the person authorized under the contract to make use of a copy of the program, in order to ascertain its underlying ideas and principles, if the person concerned performs the above acts at the time of the operations associated with the loading, display, running, transmission or storage of the computer program;
(3) reproduction of the code or translation of the form thereof within the meaning of paragraph 4(1) and (2) of Article 74 where this is essential to the securing of the information necessary to achieve interoperability between an independently created computer program and other programs, and provided that the following conditions are met:
(a) the acts are performed by the licensee or by another person enjoying the right to use the copy of a program or, on their behalf, by a person authorized to do so;
(b) the information necessary to achieve interoperability was not already easily and rapidly accessible to the persons referred to under (a);
(c) the acts are confined to those parts of the original program that are necessary to achieve interoperability.
3. The information referred to in paragraph 2(3) may not be:
(1) used for purposes other than the achievement of the interoperability of the independently created computer program,
(2) communicated to other persons except where that should prove essential to the interoperability of the independently created computer program,
(3) used for the development, production or marketing of a computer program the form of which is essentially similar, or for any other act in violation of copyright.

I started an academic platform called www.lawinit.com together with dr Wojciech Wiewiórowski and thanks to great help of Marcin Sochacki and Marcin Czerwiński. We think about English version too so if you are interested in such academic cooperation then you are warmly welcomed. Meanwhile, among other things there are great translations of German courts judgments provided by Justyna Kurek.

IV. Conclusion

The court is not unsympathetic to the difficulty that Internet file-sharing systems pose to owners of registered copyrights. Even so, it is not the position of this court to respond to new technological innovations by expanding the protections received by copyright holders beyond those found in the Copyright Act.

Full judgment text is available at www.eff.org website, PDF file.