Taylor Swift, patent reform, Hershey’s, Cadbury’s, Sam Smith, Tom Petty, stupid patent of the month – the week in IP

January 30, 2015

Taylor Swift seeking trade marks on the phrases in her lyrics, US patent reform being readied, Hershey’s blocking Cadbury’s imports, Sam Smith and Tom Petty settling a dispute over similarities in their songs, and EFF’s stupid patent of the month were in the IP headlines this week

taylor20swift20telegraph20storynew.jpg Trade mark like it’s 1989

Taylor Swift has moved to trade mark a number of the phrases related to her hit album 1989, released in October last year, as reported by Vox. The phrases, which were applied for in October, include “Party Like It’s 1989”, “This Sick Beat”, and “Nice to Meet You. Where You Been?”

If approved by the USPTO, the trade marks would stop others from using the phrases on items such as clothing, stickers and bags.

Swift has previously trade marked her name, initials and signature.

The move caused the internet to explode with more interest, and cattiness, than is usual for an IP story. It also led to much coverage confusing the different forms of IP, perhaps best displayed by UK newspaper The Independent’s headline “Taylor Swift trademarks 1989 song lyrics including 'this sick beat' in copyright spree”.

Patent reform being readied

Patent reform is expected to be introduced in the US House of Representatives next week, reports the IP Watchdog blog. House Judiciary Chairman Bob Goodlatte (left) is expected to introduce a bill nearly identical to the Innovation Act, which passed in December 2013 before the Senate failed to pass patent reform.

IP Watchdog reports that a surprise is that the patent legislation is expected to bypass the House Subcommittee on Courts, Intellectual Property and the Internet, and proceed directly to the Committee level.

Those with a vested interest in patent reform passing or now are jostling to be heard.

Last week a “broad coalition whose members represent the majority of the nation’s patent holders and inventors” sent a letter to Representative Goodlatte urging caution. The letter noted recent developments such as five Supreme Court patent decisions, the effect of the AIA such as inter partes review proceedings, the Judicial Conference of the United States adopting changes to the Federal Rules of Civil Procedure to make patent cases meet the heightened pleading standards required of all other federal cases, and the FTC and state attorneys general clamping down on patent demand letters.

“Taken together, these judicial and administrative developments, and the plunge in the patent litigation rate, have fundamentally changed the landscape under which patent legislation should be considered. As Congress considers potential changes to the patent system that threaten the constitutionally-guaranteed property rights of innovators, it must assess the full effects of the AIA, changes to the Federal Rules of Civil Procedure, the case law developments, and these administrative developments,” said the letter.

Additionally, the presidents and chancellors of the members of the Big Ten conference of universities have written a letter to Representative Sean Duffy.

“We urge Congress to take a cautious approach in this endeavor,” the letter said. “While we support the goal of targeting abuse of the patent system and especially abusive patent litigation, we respectfully ask that you preserve the ability of small businesses and universities to license and enforce their patent rights.”

The letter said the Innovation Act would have made using the courts to enforcing any patent much more difficult.

“The provisions, especially those involving ‘loser pays’ (automatically awarding attorney fees to a prevailing party) and ‘joinder’, (requiring joinder of any party with a financial interest in the litigation, such as a university inventor) as written, would have the effect of making patent licensing negotiations more complex and likely discourage at least some of our members from licensing their inventions at all,” it said. “In addition, these provisions would make litigation so potentially risky that few legitimate patent holders without deep pockets would dare risk doing so.”

cadbury20dairy20milk.jpg Chocolate trade mark deal

In news that has appalled British ex-pats all over the United States (this author included), Let’s Buy British Imports has settled with Hershey’s Company and agreed to stop importing all Cadbury’s chocolate made overseas, reports the New York Times.

“It is important for Hershey to protect its trade mark rights and to prevent consumers from being confused or misled when they see a product name or product package that is confusingly similar to a Hershey name or trade dress,” Jeff Beckman, a representative for Hershey’s, said in an email to the New York Times.

Hersey’s has a licensing deal to manufacture Cadbury’s chocolate in the United States, with similar packaging to that in the UK.

The British firmly believe their chocolate is superior. It has higher fat content. In Cadbury’s plain chocolate in the UK the first ingredient listed is milk, whereas in the United States it is sugar.

Let’s Buy British Imports has also agreed to stop importing non-Cadbury’s products including KitKat bars, Toffee Crisps, Yorkie bars and Maltesers. Hershey’s said the Toffee Crisp’s orange packaging, for example, too closely resembles Reese’s Peanut Butter Cups.

tom20petty20i20wont20back20down.jpg Sam Smith will back down

Singer Sam Smith has settled a copyright claim with Tom Petty over the similarities between Smith’s hit Stay With Me and Petty’s 1989 song I Won’t Back Down.

The publishers for I Won’t Back Down, written by Petty and Jeff Lynne, contacted the publishers for Stay With Me about similarities heard in the melodies of the choruses of the two compositions.

“Not previously familiar with the 1989 Petty/Lynne song, the writers of Stay With Me listened to ‘I Won’t Back Down’ and acknowledged the similarity,” Smith’s representatives said in a statement.

“Although the likeness was a complete coincidence, all involved came to an immediate and amicable agreement in which Tom Petty and Jeff Lynne are now credited as co-writers of Stay With Me along with Sam Smith, James Napier and William Phillips.”

It has been reported that Petty and Lynne will receive 12.5% of royalties from the song.

Petty seemed calm about the outcome.

“Let me say I have never had any hard feelings toward Sam,” he said in a statement. “All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by. Sam's people were very understanding of our predicament and we easily came to an agreement. The word lawsuit was never even said and was never my intention. And no more was to be said about it.”

eff-logo-plain-300.jpg EFF’s stupid patent of the month

The Electronic Frontier Foundation has revealed its Stupid Patent of the Month – US Patent 8,529,350. The patent is titled “Method and System for Increased Realism in Video Games” and is owned by White Knuckle.

EFF commented: “Like most trolls, White Knuckle doesn’t seem to sell or manufacture anything, but does happen to have this patent on remotely updating a sports video game based on real-world events – a player injury or a change in a stadium, such as new grass. And they used it this month to go after Electronic Arts, the largest sports video game manufacturer, for infringement. Specifically, White Knuckle calls out the last five years of NCAA Football games and the last five years of Tiger Woods PGA Tour games.”

The patent covers a computer configured to provide a sports video game with “parameters” that can be updated over the internet.

Also on the blog this week:

Bifurcation and the UPC – comments welcome!

Alibaba's counterfeits spat may signal e-commerce shift

Meet the new model patent litigator

An insight into IP in Turkey

In our news and analysis this week:

Rules that reflect different traditions

Trade mark guidance from the CJEU in 2014

MCM asks Federal Circuit to find IPR statute unconstitutional

Pillsbury adds four partners in Texas

Petrella may help photographer’s Air Jordan copyright claim