Newsletter (IP Convergence)

Intellecture, Brain League’s training division launches Patent Agent Course and Trademark Agent Course and Webinars on specialized IP topics

Issue: Dec 2008

PRESS ROOM

Open Source Licenses are enforceable under copyright law

Jacobson created a software called DecoderPro, which allows model railroad enthusiasts to use their computers to program the decoder chips that control model trains and made the software available under the Artistic License Version 1.0. KAM Industries launched a competing software called Decoder Commander, which is also used to program decoder chips. Jacobson alleged that some definition files of DecoderPro were copied by KAM Industries into Decoder Commander and asked for an injunction based on copyright infringement. The Court held that an injunction may be granted to Jacobson based on allegations of copyright violation and stated that Open Sources Licenses create obligation, which are enforceable under the copyright law.

ECJ gives a preliminary decision in Intel's case

Intel Corporation filed an application for cancellation of the registration of the trademark 'INTELMARK' for marketing and telemarketing services held by CPM United Kingdom Ltd based on the reputation of its trademark, 'iNTEL' for computers and computer linked goods and services. On rejection of the application by the UK registry, Intel Corporation filed an appeal to the UK Court, which referred the case to ECJ for clarifications relating to determination of unfair advantage and detriment to a mark, which is necessary for deciding on trademark dilution. The ECJ stated that a second mark will be considered to take unfair advantage of the first mark or cause detriment to the first mark, if there is any change in the economic behaviour of the consumer due to the link between the marks. It further pointed out that Intel must prove actual or future economic damage to the consumer in order to cancel the registration of the INTELMARK. In the light of the decision of ECJ, legal scholars believe that it would be difficult for Intel to prove a change in economic behaviour and may not be able to achieve cancellation of INTELMARK's registration.

Trademark protection to colour themes for t-shirts

Louisiana State University, Ohio State University, Southern California University, and the University of Oklahoma sued Smack Apparel Company alleging that the t-shirts sold by the company with the Universities' colour schemes violated the trademarks of the Universities. The federal court held that copying of the colour schemes of the t-shirts by the company amounts to passing off under the trademark law because such t-shirts are aimed at gaining profits by establishing a link with the Universities' products. The court pointed out that the company would be liable even if it had not used the names, logos or captions of the Universities. The Universities were granted damages of about forty six (46) thousand US dollars.