The State Can Plunder Your Copyright: Allen v. Cooper

In 1710, during the reign of Queen Anne, Great Britain’s Parliament enacted the statute that gave rise to copyright as we know it—the Statute of Anne—which was the first statute to declare that the subject matter of copyright would be regulated by the government and the courts, rather than agreements between private parties. Seven years later, the English pirate Blackbeard captured a French merchant vessel, renamed her the Queen Anne’s Revenge, and soon after ran her aground off the coast of North Carolina. As demonstrated by the recent Fourth Circuit decision in Allen v. Cooper, Blackbeard’s choice of the ship’s name proved prophetic. Continue Reading

California Enacts New Privacy Law: How Will It Impact You?

by Leila Javanshir, Miller Nash Graham & Dunn 2018 Summer Associate

On June 28, 2018, yet another new law hit the data privacy world that will impact the ways companies around the world will handle their data. The implementation of the California Consumer Privacy Act (CCPA) is a landmark moment for consumers and businesses alike.

What Does It Mean for Your Business?
This comprehensive privacy law, which will take effect on January 1, 2020, will cause a drastic shift in the way companies may collect and use personal information of California residents.

First, the new law grants California residents the right to know what information is being collected about them, why that information is being collected, and with whom that data is being shared. Further, it provides consumers the right to prohibit companies from selling or sharing their information as well as the right to tell companies to delete their information (subject to certain exceptions). Continue Reading

With Non-Compete Provisions, Let’s Remember the Requirement of a “Protectable Interest”

The strongest approach for an employer hiring someone supposedly bound by a non-competition provision may be to present an argument that the information in question is not information that qualifies as a “protectable interest” to begin with.

Proving that information is “protectable” can be difficult. Customer lists and price lists are especially tricky. If they are developed through substantial effort and kept in confidence, and the information is not otherwise readily obtainable, they typically qualify as protectable. But if the list contains information that is not much more than publicly available information (for example, picking up your phone, going online, finding a directory of persons in the industry), they typically don’t. Often, a would-be employer can develop prices by locating purchases by a public agency that state laws require to be disclosed. That same employer may also have other resources that identify customers, as discussed above. A savvy employer likely already uses these types of resources to gain an advantage in competing for customers even without the need to hire a new employee. Continue Reading

Supreme Court Extends Reach of Patentee to Recover Lost Foreign Profits

The Supreme Court on Friday held that WesternGeco, LLC (“WesternGeco”), owner of patents for a system used to survey the ocean floor, can recover profits from sales it lost outside the U.S. due to Ion Geophysical Corp.’s (“ION”) infringement of its patents. Under section §271(f) of the Patent Act, a company can be liable for patent infringement if it ships components of a patented invention overseas to be assembled there. A patent owner who proves infringement is entitled to recover damages under section §284. The question was whether these statutes allow the patent owner to recover for profits it lost from foreign sales that did not occur because of the infringing activity. The Supreme Court held that they do.

At trial, a jury found that ION was liable for infringement under §271(f) for selling a system that was built from components manufactured in the United States, shipped to companies abroad, and assembled there into a system indistinguishable from WesternGeco’s patented system. The jury awarded WesternGeco damages in royalties and lost profits. ION moved to set aside the verdict, arguing that WesternGeco could not recover damages for lost overseas sales because §271(f) does not apply extraterritorially. The District Court denied the motion, but the Federal Circuit reversed. After an earlier Supreme Court decision remanding the case in light of Halo Electronics, Inc. v. Pulse Electronics, Inc., the Federal Circuit reinstated the portion of its decision regarding §271(f)’s extraterritoriality, and denied the patent holder recovery of the profits it lost from overseas sales. Continue Reading

Christian Louboutin Claims Victory in EU Court Trademark Battle Over Its Iconic Red-Soled Shoes

On Tuesday, June 12, 2018, the European Union’s (EU) highest court, the Court of Justice of the European Union (the CJEU) (La Cour de justice de l’Union européenne), held that French designer Christian Louboutin’s mark consisting of a color applied to the sole of a shoe is not subject to the EU’s prohibition of the registration of shapes. Notably, the CJEU did not follow the February 2018 opinion of an advocate general, who wrote that the red color was intertwined with the shape of the sole.

Louboutin is known for designing high-heeled shoes for women. These are no ordinary shoes, however; over the years, they have become a status symbol because of their red outer soles and hefty price tag. As noted by rapper Belcalis Almanzar aka Cardi B in her hit song “Bodak Yellow”: “These expensive, these is red bottoms, these is bloody shoes. Hit the store, I can get ’em both, I don’t wanna choose.”

But the celebrity endorsements and popularity of the brand have not made obtaining—and maintaining—trademark registrations for the red soles a walk in the park; it has taken a lot of shoe leather. Continue Reading