Link Roundup – April 17, 2019

Profanities Prohibition in the Lanham Act: A Violation of the First Amendment?

On Monday, April 15, 2019, the Supreme Court heard oral arguments for the case Iancu v. Brunetti, in which Los Angeles clothing designer Erik Brunetti is challenging the denial of his trademark application for the mark “FUCT.” The issue being argued is whether Section 2(a) of the Lanham Act, which prohibits the registration of “immoral, deceptive, or scandalous” marks, is violative of the First Amendment right to the freedom of speech. Notably, U.S. Solicitor General Noel Francisco has argued that this prohibition serves a government interest of “encouraging the use of marks that are appropriate for all audiences, including children,” although intellectual property law (including trademark law) does not seem to uniformly safeguard this interest. For example, federal copyright law, unlike trademark law, does not use obscenity as a bar for registering a creative work. The trademark office has also been inconsistent in its enforcement of the prohibition by approving marks such as “FCUK” and others that are arguably equally lewd and offensive. Considering that the Supreme Court recently held that the Lanham Act’s prohibition on “disparaging” marks was a First Amendment violation when an Asian American band, “The Slants”, was unable to register their name, it will be interesting to see how the Court mitigates or reconciles these inconsistencies.

 

Federal Circuit Court Decision Upheld: No Tribal Immunity from Inter Partes Review

On April 16, 2019, the Supreme Court denied certiorari for the Saint Regis Mohawk Tribe and Allergan, Inc, petitioners who argued unsuccessfully at the U.S. Court of Appeals for the Federal Circuit that sovereign immunity protected shielded the tribe from inter partes review by the U.S. Patent Office. Attempting to weed out the competition and avoid the USPTO’s scrutiny, Allergan transferred its patents to the Saint Regis Mohawk Tribe and the Tribe licensed out the patents to Allergan. While sovereign immunity has worked to prevent state institutions from undergoing inter partes review in the past, the difference is that states retain sovereign immunity through the 11th Amendment while tribes—given their status as “domestic dependent nations”—derive their immunity through Congress. Furthermore, given that the Tribe and Allergan’s actions appeared to be in “bad faith,” as both the plaintiff and defendant argued of one another, the Supreme Court’s certiorari denial comes as no surprise.

 

Apple Suits: One Antitrust Case Closed, Another Opened

While Apple and Qualcomm recently reached a settlement in their dispute regarding royalty payment amounts for the Qualcomm patents used in iPhone products, the battle has just begun between Apple and other tech companies in Europe. After Spotify filed suit in March 2019 alleging that that Apple rigs its App Store to give preference to its own music services, Russian security company Kapersky and the Netherlands Authority for Consumer Markets are among the parties that have also launched antitrust violation suits and investigations (respectively) in Europe. Spotify’s suit was launched in response to Apple’s practice of taking a 30% cut on subscriptions made through their App Store—the so-called “Apple tax.” If found to be in violation of EU antitrust laws, Apple may be forced to pay a maximum fine of 10% of its annual global revenue.

 

EU to Tighten Copyright Laws, Impacting Online Content

The rollout of the General Data Protection Regulation (GDPR) gave companies operating in the EU plenty to do this past year in terms of overhauling the way they store and process data. As though the already-onerous task of complying with the GDPR was not enough, however, European Parliament has recently approved new copyright laws that will put the onus on internet providers to monitor copyright infringing content and pay out licenses to creators whose work is disseminated on their platforms. This new directive stands in clear contrast with the safe harbors provided in the U.S.’s Digital Millennium Copyright Act, which—assuming compliance with other mandates of the Act— spares internet service providers the burden of monitoring and being held responsible for infringing acts of its platform’s users. It remains uncertain how tech companies will respond and come into compliance with the new law although Google argues that it will vastly change the user interface.

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