Washington Likely Adopting New Privacy Law in the Likeness of the European Union’s General Data Protection Regulation

Another state may join the movement towards adopting General Data Protection Regulation (GDPR)-like privacy protections. A new privacy bill was introduced in the Washington Legislature on January 17, 2019, called the Washington Privacy Act (SB 5376). The Act would give consumers rights that are similar to those under the GDPR, such as the right to access their data, to update and correct their data, to port their data, to request deletion of their data under some circumstances, to restrict processing, and to object to certain processing, including for direct marketing.

Some of the Act’s text is taken verbatim from the GDPR, including parts of the definitions of consent and processing, and the Act adopts GDPR terms such as “controller” and “processor.” As with the GDPR, the Act would require processors to comply with controller processing instructions, which must be incorporated into the parties’ contracts.

The Act would apply to companies that control or process the data of over 100,000 Washington residents or which control or process data of 25,000 Washington residents and also obtain over 50% of their gross revenue from the sale of personal information. There are also additional privacy notice disclosure requirements and special provisions and limitations for facial recognition technology. There would be no private right of action—enforcement would be through the Washington Attorney General.

This bill appears to have support of important members of the tech community and may move quickly. The bill text is available here.

Why Every European Union Brand Owner Should Supersize Their Brand Documentation Efforts Following the EUIPO’s Cancellation of McDonald’s BIG MAC Registration

By Julianne Henley on January 25, 2019 Posted in Intellectual Property, International Updates

On January 11, 2019, the European Union Intellectual Property Office (EUIPO) cancelled McDonald’s International Property Company, Ltd.’s European Union registration for BIG MAC, at the request of Supermac’s (Holdings) Ltd. The Cancellation was initiated as part of an ongoing dispute between McDonald’s and Supermac’s over use of the term MAC, and the initiation of the Cancellation came as no surprise. The decision, however, should surprise and concern brand owners throughout the EU.

At its core, the EUIPO’s decision indicates that brand owners have a new, very stringent standard to prove use of a registered mark in the EU. If the BIG MAC decision is correct in its application of EUIPO evidentiary standards, brand owners must (a) provide third-party examples of how its own brand has been used with its goods/services in the EU, (b) have a third-party provide very specific data concerning its sales, and (c) demonstrate beyond a shadow of a doubt that the examples of use and data provided are directly linked to how EU consumers experienced the mark in connection with tangible sales throughout the EU and not in a few select member countries. Sound confusing and unreasonable? I agree. Continue Reading

“Secret Sales” of an Invention Continue to Be a Potential Bar to Patent Rights, Even After the America Invents Act

By Sean O'Brien on January 23, 2019 Posted in Patent Litigation, Patents

On January 22, 2019, the United States Supreme Court decided an important question in patent law: After the America Invents Act (AIA), does the sale of an invention to a third party, who is contractually obligated to keep the invention confidential, make the invention “on sale” within the meaning of the patent statutes?

The unanimous opinion holds that the AIA did not change the previous rule that such “secret sales” of inventions implicate the on-sale bar for patent rights, even though the details of the invention itself were not made public by the sale.

Specifically, the post-AIA version of the patent statutes prevents a person from receiving a patent on an invention that was “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.” 35 U. S. C. §102(a)(1). The “on sale” part of this language is known as the on-sale bar, and the categories of disclosures listed in §102(a) are known as prior art. The patent statutes in effect before the AIA had similar provisions. Continue Reading

Supreme Court to Take Up Protection of Confidential Information Provided to the Government: Food Marketing Institute v. Argus Leader Media

By Brian Esler on January 23, 2019 Posted in Supreme Court, Trade Secrets

On January 11, the United States Supreme Court announced it accepted the Food Marketing Institute’s cert petition to review the Eighth Circuit’s decision in Food Marketing Institute v. Argus Leader Media. This represents the latest development toward resolving a conundrum we have described here before (October 2018/June 2018)—how to protect confidential and trade secret information provided to the government in light of public disclosure laws.

The Freedom of Information Act’s (FOIA) Exemption 4 exempts “trade secrets and commercial or financial information obtained from a person and privileged or confidential” from disclosure in response to a FOIA request. 5 U.S.C. § 552(b)(4). In Food Marketing Institute, the Eighth Circuit considered whether the U.S. Department of Agriculture (USDA) could withhold information provided to the USDA regarding recipients of aid under the Supplemental Nutrition Assistance Program (SNAP). The USDA argued that the data was within Exemption 4 because releasing that data was likely to cause substantial harm to the competitive position of SNAP retailers. After a bench trial, the District Court held that the USDA had not proved a likelihood of substantial competitive injury, and Food Marketing Institute (representing the interests of those who provided that data) intervened and appealed to the Eighth Circuit. In a six page opinion, the Eighth Circuit affirmed, finding that while the USDA showed that the information was commercially useful and the release of the information might cause some competitive harm, it would not cause “substantial” competitive harm. Continue Reading

Supreme Court Denies Cert in de Havilland Case

By Bob Cumbow on January 8, 2019 Posted in First Amendment, Supreme Court

In early November, we reported that the U.S. Supreme Court was considering whether to hear Olivia de Havilland’s appeal of the dismissal of her right-of-publicity and false-light privacy claims against the producers of the popular television miniseries Feud, in which de Havilland didn’t care for the way she was depicted. We predicted that, in light of prior cases protecting film producers against such claims under the First Amendment, “the U.S. Supreme Court is likely to deny certiorari in the de Havilland case and allow the dismissal of her claims to stand.”

Today the Supreme Court announced that it has, indeed, denied de Havilland’s petition. There was nothing sufficiently novel about de Havilland’s claims to distinguish them from those of many others who objected to the way in which they were “fictionalized” for purposes of a movie or television series.

The denial passes up an opportunity for the Court to examine the current state of right-of-publicity jurisprudence, which for more than a decade has been skewed by a series of cases denying First Amendment protection to producers of video games who use avatars of real athletes, while continuing to uphold the right of movies, television, and other forms of expression to use and fictionalize real persons. That long overdue examination must wait for another day.