Rolling Dorsum Ip Rights?

Yesterday the IPKat attended Peter Maggs’ seminar at the Queen Mary, University of London, Intellectual Property Research Institute. Professor Maggs took equally his subject the enquiry of whether intellectual holding rights are beingness “rolled back” (i.e. limited) inwards the United States of America as well as used the previous year’s instance police pull to bear witness his point.

There was a definite “roll back” inwards merchandise grade law. This could endure seen from the Victoria’s Secret case (requiring actual dilution rather than a likelihood of dilution to succeed inwards a federal dilution claim) as well as Dastar (placing the focus of an research into confusion nether §43a of the Lanham Act, which is the unfair contest provision, on deception equally to the physical beginning of goods, rather the beginning of ideas contained inside those goods). Also, inwards barcelona.com the courtroom refused to apply Castilian merchandise grade police pull that may direct maintain granted the metropolis of Barcelona merchandise grade rights inwards Barcelona, instead applying United States of America law, which emphatically did non grant such rights. The solely exception was California Innovations, where the courtroom widened the weather condition nether which geographically misdescriptive marks tin forcefulness out endure registered.

Copyright all the same was to a greater extent than of a mixed bag. Eldred v Ashcroft (where the Supreme Court upheld the Sonny Bono Act, which extends the term of copyright inwards the United States of America to lxx years) definitely “rolled forward” IP rights, equally did Verizon Internet Services (where the mightiness of RIAA to larn the details of downloaders from ISPs on withdraw was upheld). However, a “roll back” was visible inwards Veek, where it was held that a privately written model edifice code that was after passed into dry reason police pull was freed of its copyright as well as could endure posted on the defendant’s website without giving rising to copyright infringement. He also pointed to two conflicting Digital Millennium Copyright Act (DMCA) anti-circumvention cases. In Chamberlain, generic garage door openers that circumvented access controls to a calculator plan inwards the plaintiff’s opener were constitute non to infringe the DMCA. However, a violation of the DMCA was constitute inwards Lexmark where the defendant, inwards companionship to brand his refilled calculator cartridges operate amongst Lexmark’s printers circumvented programming inwards the printers that enabled them to solely operate amongst Lexmark cartridges. He pointed out that a dissimilar number was probable inwards the European Union because of the directive that bans non-refillable cartridges.

notes that spell these cases propose that at that spot has been something of a judicial “roll back” of IP rights, the tendency has been for the United States of America legislature to “roll forward” IP rights, amongst the Federal Trademark Dilution Act, the Anticyberpiracy Consumer Protection Act, the DMCA as well as the Sonny Bono Act beingness a few prominent examples from the terminal decade. In the EU, the “roll forward” has been judicial equally good equally legislative amongst a number of ECJ decisions (all available here) that direct maintain pushed IP rights frontward – accept for instance the broad Definition of “trade grade use” inwards Arsenal v Reed, the favouring of regional rather than international exhaustion inwards Levis v Tesco, as well as the extension of dilution-style protection to similar as well as identical goods inwards Davidoff II and the Advocate General’s conclusion inwards Adidas v Fitnessworld. The pose inwards the United States of America is somewhat dissimilar to that inwards the European Union because the Supreme Court as well as the lower courts produce non rely on IP rights equally a beginning of their jurisdiction, whereas inwards the EU, if the instance inwards enquiry is exterior the compass of IP rights, jurisdiction defaults dorsum to the Member States as well as the ECJ is deprived of its role.

The cases Professor Maggs referred to are available here
See another “roll back” attempts here, here , here as well as here
An endeavor to “roll forward” here