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In this issue
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Editor: Becky Butcher beckybutcher@blackknightmedialtd.com +44 (0)203 750 6018
Marked by uncertainty
The land of the rising sun
Amid confusion following the implementation of GDPR, Brian Beckham explains some of the biggest issues affecting the WHOIS landscape
Yoshitaka Sonoda of Sonoda & Kobayashi IP Law runs through the current IP landscape in Japan, it’s challenges, and looks to the future
Copyright directive
Trade war
The proposed plans to reform the EU’s copyright rules have been adopted in a 438 to 226 vote
The US is using the “pretext of intellectual property rights” to launch a trade war with China
Trading secrets
Somewhere, beyond the sea
Richard Reice, who obtained the first seizure order issued by a US court under the DTSA, explains more
Is patenting the genetic sequences of marine animals an untapped goldmine?
Publisher: Justin Lawson justinlawson@blackknightmedialtd.com +44 (0)203 750 6028
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Industry Events
Office Manager: Chelsea Bowles accounts@blackknightmedialtd.com
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Deputy Editor: Barney Dixon barneydixon@blackknightmedialtd.com +44 (0)203 750 6026
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Junior Reporter: Ben Wodecki benwodecki@blackknightmedialtd.com +44 (0)203 750 6017 Designer: James Hickman jameshickman@blackknightmedialtd.com +44 (0)203 750 6021 Contributors: Jenna Lomax, Ned Holmes, and Maddie Saghir IP Portfolio Manager: Serena Franklin serenafranklin@blackknightmedialtd.com +44 (0)203 750 6025
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Published by Black Knight Media Ltd Copyright © 2018 All rights reserved
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Copyright · Latest News EU parliament votes to adopt controversial copyright directive The proposed plans to reform the EU’s copyright rules have been adopted in a 438 to 226 vote. Article 11 and 13 of the EU’s Copyright Directive were rejected by members of European Parliament in July, but returned to the vote after amendments had been made. Article 11 brings a so-called ‘link tax’ that would allow publishers to secure licence fees from search engines and other intermediaries who use their content for up to 20 years from publication. Article 13 shifts the burden of responsibility for copyright infringement to the platforms, forcing them to readjust their content protection mechanisms and take down user content at the request of rights owners. Both article 11 and 13 were in the adopted text, with slight amendments to both. Article 11 retains much of its original text, but was amended to allow links to contain “individual words” from an article. Article 13 still brings in upload filters, but these are now narrowed to platforms that host “significant amounts” of uploads and “promote” them. There are also exceptions for small- or micro-sized enterprises. Axel Voss, German MEP and rapporteur thanked the house following the vote, calling it “a good sign for the creative industries of Europe”. However, dissenting voices remained, with one MEP standing and arguing out that the reform is “an enormous strike against freedom of the internet”. Julia Reda, Pirate Party MEP and vice president of the Greens/ EFA group, commented: “Today’s decision is a severe blow to the free and open internet. By endorsing new legal and RWS IP PRO AD 0418 HERO.pdf
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technical limits on what we can post and share online, the European Parliament is putting corporate profits over freedom of speech and abandoning long-standing principles that made the internet what it is today.” Reda said that parliament’s version of article 13 “leaves sites and apps no choice but to install error-prone upload filters”. “Anything we want to publish will need to first be approved by these filters, and perfectly legal content like parodies and memes will be caught in the crosshairs.” European publishers welcomed the decision, stating that the directive would “help secure our independent media for the next generation, help ensure journalists can benefit from a share of any revenue generated by the right, modernise copyright with a proportionate approach that does not stifle digital innovation and promote fairness in the digital ecosystem”. Angela Mills Wade, executive director of the European Publishers Council, said: “Today, we give credit to MEPs who voted for press freedom, democracy, professional journalism and European values. We thank the Rapporteur, Axel Voss, MEP, for working tirelessly to achieve a balanced outcome.” Ahead of the vote, #LoveMusic, a group made up of UK music industry companies, and some of Europe’s most influential filmmakers came out in support of the reform. UK Music chairman Andy Heath said that MEPs have a chance to “make a stand not just for the rights of musicians, but for the rights of all the citizens they represent.” The directive is an optional implementation across the EU.
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Trade Secrets · Latest News The US is using IP as an excuse for its trade war with China The US is using the “pretext of intellectual property rights” to launch a trade war with China, according to Professor Wu Handong of the Zhongnan University of Economics and Law. Writing for Chinese state media outlet, China Daily, Handong said that China’s IP rights protection measures should be judged on their conformity to international rules, rather than the US’s misinterpretations “that tend to violate those rules”. US president Donald Trump has implemented a series of trade tariffs against China since the beginning of his presidency, claiming that China has been breaking World Trade Organisation (WTO) rules by denying foreign patent holders, including US companies, basic patent rights. Trump said that this lack of protection results in Chinese entities using exclusive technology after a licensing contract ends. Handong said that China has made “great progress” in IP rights protection since launching its reform and “opening-up policy by consistently bringing IP rights legislation in line with relevant international conventions”. “From the 1980s to the early 1990s, China promulgated a series of laws and regulations, such as the trademark, patent, copyright, and anti-unfair competition laws, to establish a basic legal framework for IP rights protection”, he said. Handong claimed that, even before the country’s accession to the WTO, China had “joined several international conventions on IP rights protection, such as the Paris Convention for the Protection of Industrial Property, the Berne Convention on the Protection of Literary and Artistic Works, and the Agreement on Trade-Related Aspects of IP Rights, to become a “staunch defender and active builder of international IP rights rules”. “The remarkable progress China has made in the field of IP rights protection using legal, administrative and policy tools has enabled it to establish a relatively comprehensive IP rights protection system, which provides strong legal support for domestic and foreign innovators.” Handong concluded that it was clear that the figures the US is using to intensify its trade conflict with China are “not based on facts”, which is why “the US will neither win the support of the international community, nor can it prevent China from strengthening the rule of law, including that on IP rights protection”.
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Bristows senior partner named Deputy High Court Judge Bristows’ competition and regulatory practice head, Pat Treacy, has been appointed deputy high court judge of the Chancery Division of the English High Court. Treacy has been with the firm for 23 years and served as the firm’s second female managing partner, working alongside co-managing partner Paul Walsh from 2004 to 2011. Along with her appointment to the high court, Treacey was also recently elected as senior partner at the firm and is the first woman to hold the role. She will begin her two-year court role in November, and will continue in her practice advising clients on competition law issues in the innovation sector and on the interface between competition law and the exercise of intellectual property rights. Commenting on her new role, Treacy said: “It is a real honour to have been appointed to serve as a deputy judge in the high court and I am very pleased to have the opportunity to do so.” Liz Cohen, joint managing partner at Bristows, added: “Pat Treacy is a highly regarded and brilliant practitioner who, throughout her career, has built strong relationships and earnt the respect of her colleagues, clients and peers. The role of deputy high court judge seems a natural evolution of Treacy’s already distinguished career and we couldn’t be more proud of her as she takes up her new position on the bench.”
Trademarks · Latest News Burberry ends its product destruction policy Luxury fashion brand Burberry has announced it will cease destroying what it considers “unsaleable products” with immediate effect. In July, Burberry admitted that it destroys “unwanted” products to prevent them from being stolen or sold cheaply. A spokesman for Burberry said that the brand has “careful processes in place to minimise the amount of excess stock we produce”. In a statement announcing the end of the practice, Burberry said it wanted to “build on the goals that we set last year as part of our five-year responsibility agenda and is supported by our new strategy, which is helping tackle the causes of waste”. “We already reuse, repair, donate or recycle unsaleable products and we will continue to expand these efforts.”
“In the past year, Burberry has created a unique partnership with sustainable luxury company Elvis & Kresse to transform 120 tonnes of leather offcuts into new products over the next five years.” “We have also supported the Burberry Foundation in establishing the Burberry Material Futures Research Group with the Royal College of Art to invent new sustainable materials.” Burberry also confirmed that it will no longer use real fur in its products. Marco Gobbetti, CEO, commented: “Modern luxury means being socially and environmentally responsible. This belief is core to us at Burberry and key to our longterm success.” “We are committed to applying the same creativity to all parts of Burberry as we do to our products.”
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Trademarks · Latest News
Family who ran counterfeit drug business jailed Three members of a family in the UK have pleaded guilty to producing counterfeit drugs for sale online.
The Hacklands were caught following Daniel Hackland’s declaration that he was unemployed.
Daniel Hackland, his wife Jenna Hackland, and his brother Matthew Hackland pleaded guilty to producing and supplying unlicensed class C drugs, unlicensed medicines and money laundering.
Enforcement agents found this suspicious as Hackland possessed watches worth £17,000 and cars worth more than £60,000.
Daniel Hackland and Matthew Hackland were given four and a half and three years custodial sentences respectively, and Jenna Hackland received 18 months in custody, suspended for two years, and 100 hours of unpaid work. Together, they ran an online bodybuilding supplement business, but they also sold drugs used to treat conditions ranging from severe acne to cancer.
Enforcement agents also found £49,000 hidden in a safe in Hackland’s house. When arrested, Daniel Hackland told officers he “knew this was going to happen eventually”. Alastair Jeffrey, MHRA’s head of enforcement, commented: “This is an example of how criminals are willing to put the health of others at risk to make money.”
The illegal products were a mix of Chinese imports and homemade versions. The homemade products were created in a cement mixer.
“Selling medicines outside of the regulated supply chain is a serious criminal offence and we continue to work with other regulatory and law enforcement colleagues to identify and prosecute those involved in this type of activity.”
Officials from the Medicines and Healthcare Products Regulatory Agency (MHRA) seized over 112,000 tablets and almost 2,000 bottles of injectable liquids along with imported dyes and pill pressing equipment.
“If you purchase medicines outside of the regulated supply chain you may well be buying products that have been made and stored in unsanitary conditions and which could cause significant harm.”
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Trademarks · Latest News USPTO seeks review of ‘scandalous’ trademarks The US Patent and Trademark Office (USPTO) has petitioned the US Supreme Court to review “scandalous and immoral trademarks” under the Lanham Act. Section 2(a) of the Lanham Act provides “in pertinent part that a trademark shall be refused registration if it ‘consists or comprises immoral or scandalous matter”. In a writ of certiorari to the court, the USPTO asked whether “section 1052(a)’s prohibition on the federal of ‘immoral’ or ‘scandalous’ marks is facially invalid under the Free Speech Clause of the First Amendment”. In June 2017, the Supreme Court ruled that the provisions of the Lanham Act that prohibit the registration of trademarks that may “disparage” persons, institutions, beliefs, or national symbols with the USPTO violates the First Amendment. Last month, the USPTO suspended trademark applications deemed “scandalous or immoral” while it considered asking the Supreme Court to review banning such trademarks.
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In its petition, the USPTO said that the question presented is important, as the provision at issue requires the USPTO to refuse registration to marks containing profanities and graphic sexual images, “such as renderings of genitalia or sexual acts”. The USPTO explained that “many attempts have already been made to register ‘highly offensive, even shocking, images,’ and more such applications are likely to be submitted if the court of appeals’ decision is allowed to stand. Congress has prohibited federal registration of trademarks containing scandalous matter since the registration system was created in 1905.” “The USPTO has repeatedly applied these provisions to refuse registration of scandalous marks. The court below nevertheless invalidated section 1052(a)’s scandalous-marks provision on its face so that the USPTO cannot invoke it to refuse registration of even the most vulgar terms and lewd sexual images.”
Patents · Latest News
Worrying numbers of patent attorneys suffer from mental health issues according to report An IP Inclusive and Chartered Institute of Patent Attorneys (CIPA) survey showed that 33 percent of patent professionals are uncomfortable, unhappy or very unhappy, with disturbing numbers confessing to thoughts of self-harm or suicide. The ‘Report of IP Inclusive & CIPA survey for Mental Health Awareness Week 2018’ found that almost 70 percent of respondents admitted to having their mental health affected at work by high stress levels. The report showed that 66.9 percent of the 180 respondents admitted to having been adversely affected at work by highstress levels, with over half suffering from anxiety. It found that 30 percent of respondents admitted to suffering from depression, while 3 percent from another, diagnosed, mental health problem. Student respondents saw greater numbers responding to the survey, however, reported levels of mental health issues were slightly lower when compared to the main survey. Concerns over high workloads, long working hours and deadlines being linked with qualifying exams and juggling revision with day-to-day work were some of the issues highlighted by student respondents. The report highlighted that stress in student patent professionals arises from the profession’s reliance on exam success as “the main, if not the sole, way of evaluating and rewarding achievement”. The report also highlighted workplace inclusivity, or rather a lack of. Reported levels of discrimination, harassment, bullying are provided as evidence that “many attorneys feel the need to hide aspects of themselves in order to fit in at work”. Society as a whole is attempting to talk more about mental health, but the report showed that those in the patent industry are often still unable to talk about the topic. It also found that
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82.4 percent of respondents to the main survey and 81.5 percent of student respondents had not taken any time off work due to stress or mental health problems. According to the survey, inadequacy throughout the patent profession is the lack of signposting of information and resources for those in need of help. Only 180 patent professionals responded to the main survey, which equates to just over six percent of the total CIPA membership excluding students, while 191 responded to the student version. IP Inclusive leader and CIPA and European patent attorney, Andrea Brewster OBE said that report suggested several key things that could be done by CIPA, IP Inclusive and the profession as a whole, to improve mental well-being in the patent sector. Open conversations on mental health issues, improved mental health support for employees, and better signposting of available information and support are just some of the recommendations made by Brewster and the report. Brewster commented: “At IP Inclusive we recognise that mental health is key to an inclusive working environment. This survey has tremendous value in revealing the mental health problems faced in one area of the IP professions, their causes, and how they might evolve in the future.” “That, in turn, can direct us towards measures to improve the mental health not only of patent professionals but of others working in IP as well. Our report includes recommendations that we hope will be of use to individual employers, to membership bodies such as CIPA, and to charities such as LawCare and Jonathan’s Voice who seek to provide mental health support in this sector. IP Inclusive will continue to work with these organisations to ensure that the survey yields positive change.”
Patents · Latest News Court affirms dismissal of interference in CRISPR patent dispute The US Court of Appeals has concluded that the use of CRISPR-Cas9 in plant and animal cells is separately patentable from University of California, Berkeley, scientists Emmanuelle Charpentier and Jennifer Doudna’s use of CRISPR-Cas9 in any environment.
Netlist patent dispute with SK hynix continues The US International Trade Commission (USITC) has issued a claim construction order against SK hynix RDIMM in a patent dispute with Netlist. In April this year, an Administrative Law Judge (ALJ) granted SK hynix’s motion for summary determination of non-infringement and decided to terminate the investigation. But in May, the USITC remanded the case back to the ALJ, to resolve the claim construction disputes and continue the investigation. However, now the claim construction aspect of the dispute has now been resolved, falling in favour of Netlist, with the claims of infringement on its patents established. The patent infringement investigation will focus on whether the operation of SK hynix’s products falls within the scope of Netlist’s claims. The claim construction order will ultimately serve as a framework whereby the USITC will rule if the Netlist’s patents are valid and if they have been infringed by SK hynix. Netlist’s CEO Chun Hong commented: “We are very pleased with the order and believe this is an important turning point in our dispute with SK hynix.” “In our view, the claim construction order was thorough, well-reasoned, and vindicates our belief as to the strength of our fundamental IP. This interpretation of the patents puts us in a strong position with respect to infringement, which was the only issue we didn’t win in our first USITC action. The order gives us significant momentum heading into the trials scheduled later this year in both the USITC and in Germany.”
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The court affirmed the dismissal of an interference proceeding to determine whether the Broad Institute or UC Berkeley is entitled to patent claims specifically covering use of CRISPRCas9 in plant and animal cells. Charles Robinson, office of general counsel for the University of California office of the president, said in a statement: “While disappointed that the court did not allow the interference to go forward to resolve this issue, we are gratified that the court acknowledged that the DoudnaCharpentier team’s publication of their work in a 2012 paper in the journal Science represented a ‘breakthrough in the art’ of gene editing, by first showing how the CRISPR-Cas9 system can be used as genome-editing technology in any environment.” “The court did not address the question of who invented the specific use of CRISPR-Cas9 in eukaryotic cells and emphasised that its decision was ‘not a ruling on the validity of either’ Broad’s or UC’s claims. The decision thus does not preclude other proceedings, either in the US Patent and Trademark Office (USPTO) or in the courts, by which UC may seek to establish that it is the actual inventor of use of the CRISPR-Cas9 system in eukaryotic cells. Lastly, we are pleased that the USPTO will continue to issue patents to UC for its foundational technology relating to the use of CRISPRCas9, including its use in any environment.” Robinson explained: “UC has a policy of openly licensing technologies to non-profits and educational institutions and has licensed CRISPR-Cas9 technology so that it now is used by multiple companies currently working to accelerate breakthroughs in human therapies. Our commitment to develop and apply CRISPR-Cas9 for the betterment of humankind is unchanged by today’s decision.” UC Berkley had been looking to overturn the US Patent Trial and Appeal Board’s (PTAB) decision in its dispute with the Broad Institute and reinstate interference. Both UC Berkeley and the Broad Institute’s patents overlap in scope, but the PTAB found that the claims in the interference were separately patentable, and therefore terminated the interference.
Patents · Latest News EPO dismisses employee under new controversial ‘incompetence’ provisions The European Patent Office (EPO) has dismissed an employee under controversial new provisions in its service regulations that allow dismissals based on “professional incompetence”. The employee, an examiner working in the EPO’s office in The Hague, was dismissed following a procedure before the joint committee on article 52 and 53 of the service regulations. Article 52 allows employees to be dismissed if they still prove to be “incompetent in the performance of his duties”, after undergoing procedures defined by the office’s president to “identify, deal with and remedy cases of lack of ability and efficiency in a timely and appropriate fashion”. The dismissal comes ahead of the Staff Union of the EPO (SUEPO) branch of The Hague’s first meeting with EPO president, António Campinos, close to three months into his tenure, which will take place tomorrow (7 September). In a message to members of the SUEPO, the union explained that the employee had been working at the EPO for more than 10 years. The message added: “His daughter started at the European School of The Hague only last week. On Monday he was still working. On Tuesday he arrived at the office only to discover that his badge had been deactivated. He became aware of his immediate dismissal when he came to work and went to the reception desk to enquire about his badge problem. We happened to bump into our colleague as he was being escorted out by two security guards in the evening after he had been given the opportunity to collect his personal items.” SUEPO called article 52 “fundamentally flawed” and noted that the EPO’s Central Staff Committee (CSC) had sent a letter on 20 July to the Campinos addressing this problem.
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According to SUEPO, the CSC had pointed out to Campinos that the office “had not met its obligation to define procedures for the implementation of article 52 of the service regulations, contrary to the requirements of article 52(1), and stated that an ad hoc procedure, defined on a case-by-case basis (if any) cannot be (seen to be) fair to the concerned colleagues”. The CSC appealed to have all pending cases put on ice until fair procedures were defined. SUEPO said that this “clearly did not happen” and questioned whether the president was “ill advised when he took the decision to dismiss the colleague”. The union added that the specific circumstances in the case raised additional questions, including the lack of a due notice period of the dismissal. SUEPO explained that the regulations in force allow for a nine-month notice period to dismissed staff. It asked: “Why has management deemed necessary to give immediate effect to the dismissal?” SUEPO also questioned why dismissal was chosen instead of classification to a lower group or downgrading. It queried whether the employee was offered another position in the organisation before considering such a drastic measure as dismissal. Finally, SUEPO asked why the management of the office waited until the “very last possible moment to inform our colleague” and made him go through the “humiliating steps” described in its message. SUEPO said: “Is the office going to provide adequate financial compensation for the dismissal with immediate effect, including health insurance coverage, pension contributions, payment of school fees?”
Richard Reice · Interview
Trading secrets A recent Lex Machina report outlined the effects of the DTSA. Richard Reice, who obtained the first seizure order issued by a US court under the DTSA, explains more Ben Wodecki reports A recent Lex Machina report showed a correlation between federal district court filings and the passage of the federal Defend Trade Secrets Act. How significant are these findings? The Lex Machina report indicated two trends in the federal district courts—it showed the uptick in trade secrets filings soon after the Defend Trade Secrets Act (DTSA) became law. It also showed that in 2017, 20 percent of the 1,134 trade secrets cases filed in the district were brought pursuant to the DTSA, demonstrating that it hasn’t overtaken the market for trade secrets litigation. The report does not necessarily convey that there is an overall uptick in trade secret filings—only that there may be a shift from state to federal courts because there is now a new forum in which to file cases. Lawyers, particularly those outside major cities, may be far more comfortable in state court, rather than filing in a federal court, under a newlyenacted statute that lacks a body of precedent. Therefore, although the report shows an increase, it does not adequately explain what that increase is. The report also shows that filing a case under the DTSA is not a slam dunk. Many of the junction requests are not necessarily successful, and indeed almost half failed. In
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this instance, it shows that courts are applying DTSA very carefully. The wording of the statue suggests that courts are not issuing injunctions or seizure orders in trade secrets absent of extreme circumstances. Overall, the Lex Machina report is interesting, but it is not informative in terms of whether or not there is an overall uptick in trade secrets cases, or merely a shift from the state to the federal following the new federal law. A positive effect of this new federal law is that it will create a federal, multi-state body of trade secret law—common definitions and elements—that will bring a more national standard, once the cases get to the appellate courts for trade secret litigations. For litigants, having a federal forum means the ability to obtain nationwide injunctive relief, perhaps a faster response in a court that may have more time and resources (for example, federal marshals and less crowded dockets).
How impactful has the Defend Trade Secrets Act been to date? In my experience practicing in New York City, the DTSA has been huge. We often prefer to be in federal court, and we may see federal courts eventually overtake the market for trade secrets and restrictive covenant litigation. State court causes of action can be brought in the federal court under pendant
Richard Reice · Interview jurisdiction, so if a practitioner is deciding on a forum to bring their case in, they have the option of choosing a federal court without sacrificing their state statutory and common law claims. The real impact of the DTSA is the federalisation of trade secrets litigation.
You obtained the first seizure order issued by a court under the DTSA in the US. Run us through what happened. The defendant was an analyst at a real estate investment firm in New York. The clients contacted us when it was suspected that the defendant had downloaded some 50,000 key contacts of the firm. Initially, we were able to contact him and obtain his cooperation in connection with our investigation of the alleged conduct. He provided us with access to his laptop computer. Upon examination, we found that he had in fact downloaded and misappropriated a significant amount of client data. But then, the defendant essentially disappeared. We made numerous attempts to locate him and reestablish contact, but none were successful. Because we were fearful that he would disseminate the information, we were able to take this brand new statue and seek injunctive relief, including a seizure order. At that point the statue was maybe a month or two old. Usually when you go to court seeking a temporary restraining order, you are armed with a complaint, a motion, and a brief that sets forth the facts and the law as to why injunctive relief is appropriate under the circumstances. We had no case law, as there wasn’t any, so we went into court with our complaint, our motion, a copy of the US Senate bill, and a report that explained what the DTSA is and the rationale behind its passage. The judge immediately saw that we had a new statue and that created some interesting legal and procedural hurdles because everything we did was novel. Luckily, we were able to convince the court that we deserved injunctive relief because we knew exactly where and what the misappropriated data was, and had a legitimate fear of dissemination. Since the defendant had turned uncooperative, the only way to obtain and secure the data was to have it seized by the marshals. That got very complicated because there were no established routines or guidelines on how to do this. The statue itself provided either a no knock seizure, in other words the use of force to gain entry, or a seizure upon notice. But as both remedies are truly extraordinary, the court had to conduct a hearing before determining which was appropriate. Tactically, we had to decide whether or not to argue for forceful entry, an option we ultimately elected not to do—in part because we didn’t think we would be successful.
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Other issues had to be decided. The defendant lived in a New York apartment building. Thus, decisions had to be made as to how the marshals were to gain entry. In our case, it was decided that the marshals would do their best to gain peaceful entrance into the building (in fact they merely waited for someone to exit, and then they just entered). It was further decided that they would locate his apartment, and simply knock on his door. Furthermore, there was a discussion about what was going to happen if the marshals got into the building, but the defendant wasn’t home. One option was to leave a note. So, we had to discuss whether the marshals should leave a note, where it should be left, what it should say, who should write it, and where would it be placed. Then there was discussion about what would happen to the seized material. Where would it go? Who would retain possession—the judge, the clerk, or the marshal service?
Richard Reice · Interview All of these issues had to be reviewed with and approved by the court, and an order had to be issued to the marshals. Then, the marshals have to be paid, as they’re not free, so we had to work that part out and have the appropriate checks issued. Remaining was the issue of who could enter the apartment. Per the statute, lawyers for the parties cannot be onsite during a seizure. But, in the case of purloined digital data, a retained, court-approved forensic examiner could be present. Thus, we had to source and select a neutral forensic examiner who would accompany the marshals to the defendant’s apartment, who under the supervision of the marshals, would gain access to the defendant’s computer which they would essentially seize, but not take with them. Rather, the computer expert would then spend time identifying and downloading the misappropriated material, place it on a thumb drive and then wipe the computer clean of only the misappropriated data. The computer, and the balance of the data, would remain in the defendant’s possession. On the day of the seizure—you have to picture the scene— three armed marshals, all in bulletproof vests, went to the defendant’s building early in the morning. They obtained access when someone exiting the building let them in. They knocked on the defendant’s door and after a moment, were greeted by the defendant who was shocked to find three armed cops at his door handing him the seizure order to gain access to his apartment and computer. It took the computer expert four to five hours to source and download all of the misappropriated materials, which was all being put onto a disc while everyone remained in the apartment—although I think at one point the defendant left and came back. When the process was complete, the marshals handed back the defendant’s computer to him and the marshals proceeded to the courthouse where the captured data, now on a thumb drive, was handed over to the court, which then gave it to the clerk to keep in the court safe. That was pretty much how it happened, but that took four or five court appointments and extensive negotiation with the marshals over how this was going to happen. We had a very unique set of circumstances. I don’t think you’re going to see that happen a lot, but certainly we were one of the first and received a lot of attention. In short, it was rather interesting to be involved in the first seizure order case as there was literally no guidance as to how to proceed; there was no established protocol or precedent. Every step of this process had to be discussed thoroughly in court on an ex-parte basis and we had to work closely with the judge and the marshals’ office. Under American law, for law enforcement to gain entry to someone’s apartment and seize their personal property
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for a few hours, you can imagine that the courts exercise tremendous caution and want to do an in-depth examination before they allow such events to take place. A seizure is inherently a sanctioned invasion of privacy and the taking of property—whose ownership may be in dispute—all on an ex-parte basis to ensure surprise and to prevent the destruction or movement of the misappropriated material. We met our burden, but many will not be so lucky.
Given that you obtained the first seizure order issued by a court in the US, how do you think courts have approached it since? They approach seizure cases with tremendous caution. I don’t think we will see an enormous amount of DTSA seizure cases except in very extreme circumstances. We had a unique set of facts that lent itself to a seizure order—clear knowledge of what was misappropriated, its location, intent to disseminate the purloined information, irreparable harm, and an uncooperative defendant. But the procedural hurdles to gain a seizure order are significant. I think you’re going to see a greater number of federal trade secret cases, but the standards for obtaining injunctive relief have always been stringent, and to obtain a seizure order I think a plaintiff is going to need a perfect storm of factors before a court will order a US marshal to seize property.
What is the future of trade secret cases? The world is getting more competitive and complex, and I think you’re going to see an increase in trade secret cases, particularly as algorithms involving artificial intelligence and mechanised manufacture become more popular. We may start to see more international trade secrets cases as the world gets flatter. I think you’ll see that the DTSA will continue to become the statue of choice by which to seek redress. I also predict a massive shift from the state courts to the federal. With that there will be a significant body of federal trade secret law that has uniform definitions and standards across the country. That’s going to take a while because district court cases are going to have to percolate up through the appellate courts. One reason why this will take a long time is because cases tend to rise and fall at the injunction stage. A lot of them are resolved relatively quickly in the district court, so I think it’s going to take a while before you get a bunch of cases that actually get through the district courts and into the appellate courts, and I think it will be a significant amount of time before you see a DTSA case at the US Supreme Court. IPPro
Marine Patents · Feature
Somewhere, beyond the sea Is patenting the genetic sequences of marine animals an untapped goldmine? Ben Wodecki reports With an ever increasing population and rising temperatures, humanity needs all the help it can get, and, for some scientists, life under the sea could hold the key to saving the human race from disease and death. Genetic sequencing of these creatures could chaperone in a new era of medicine, with those who own the technology standing to profit greatly. Alex Bartlett marine biologist and postgraduate bio scientist at Swansea University, says that genetic sequencing is the act of processing a sample of DNA from an organism to understand its full genetic makeup to find if there is a natural medicinal product, or a specific gene of interest. Bartlett, who specialises in tropical marine ecosystems such as seagrass and coral reefs, explains that the most common way to conduct genetic sequencing, is using illumina dye sequencing.
“All DNA is made up of four base pairs: adenine, thymine, cytosine, and guanine. The DNA sample is chopped up into smaller fragments and given reference points, and is marked with different colour dyes for each base. It is then loaded onto a small chip which has nucleotides on it. Then all the bases match up complimentary.” “Each DNA fragment is then copied a thousand times— clustory generation—and as it starts to be copied is we add primers which are small stranded DNA and this starts DNA synthesis.” “As the DNA and bases starts to be synthesised, we’re able to take references points using a computer to understand which bases the sequence were, and this gives us a full idea of the sequence. This helps us understand the full genetic makeup.” Bartlett explains that this technology is being used in the pharmaceutical and medicinal industries, as well as by biologists to unveil an evolutionary lineage in a creature. Bartlett believes gene sequencing has a lot of potential, and highlights that human beings have only surveyed five percent of the ocean. He says: “We know very, very little of the deep sea and there is high hopes that something [there] will have a natural product that can cure or at least mitigate some of the big health problems at the moment.” Organisms like the Zebrafish, Leopard Danio, or Turritopsis dohrnii can regenerate their own body parts and Bartlett
Marine Patents · Feature says that there is “huge potential if we can take the sequence and transplant it into someone who has lost a limb or body part.” “It’ll be a loss less painful for them to slowly regenerate it over time than it is to go through surgery and other methods.”
dominating the industry, Blasiak admits that he doesn’t see an easy solution to this issue, but “there are certainly plenty of risks, and an urgency to resolve [it]”. “BASF is a real giant in the corporate world, with sales of over $79 billion in 2017 and a network of 633 subsidiaries and offices in 94 countries.”
The organisms currently being targeting for gene sequencing are marine bacteria, brown and red seaweed, sponges, corals, mussels and other molluscs, according to Bartlett, and he says that “they are the most heavily patented at the moment, and that is because other researchers believe that they’re the most likely for genetic sequencing”.
“Innovation is also a core element of its operating strategy, with annual investments of nearly €2 billion in research and development. This level of investment in innovation has resulted in some remarkable advances that are benefitting human society (for example improved crop yields).”
When it comes to patents though, Bartlett highlights that “90 percent of the patents for gene sequences are owned by ten countries, and of that, 70 percent are owned by three: the US, Germany, and Japan”.
He adds: “At the same time, history has taught us that monopolies often carry a range of negative long-term impacts. In my view, the emphasis shouldn’t be on limiting the efforts of entities currently engaged in this sector, but on making sure that there is a possibility for broader participation.”
Robert Blasiak, post-doctoral research fellow from the Stockholm Resilience Centre at Stockholm University and author of a study on corporate control and global governance of marine genetic resources, says that “emphasis shouldn’t be on limiting the efforts of entities currently engaged in this sector, but on making sure that there is a possibility for broader participation”. “Most of the ocean is outside of national jurisdiction, so this dominance by a handful of countries is out of sync with international commitments to equity.” Blasiak explains that because moving from a genetic sequence to a viable commercial product is often a long, uncertain and expensive process, “patents are one way to protect these substantial investments of time and effort and to ensure that the outcomes are not simply appropriated by others”. “Uncertainties in the regulatory system are a headache for companies—if the regulatory burden and benefit-sharing mechanisms are clearly defined, it is possible to plan accordingly. The same is true for countries that may need to establish corresponding monitoring and control mechanisms to ensure that there are no regulatory abuses.” He says: “This is all a long way of saying that there is urgency to address this issue as completely as possible, and continuous revisions and changes may create more problems than they solve.” At the moment, companies like BASF, which owns 47 percent of all patents for marine genetic sequencing
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“We found in our research that entities headquartered in just 10 countries accounted for 98 percent of the sequences associated with patents—most of the ocean is outside of national jurisdiction, so this dominance by a handful of countries is out of sync with international commitments to equity.” “As scientists, my co-authors and I have tried to ensure that the negotiations [on new ocean treaties] are based on current knowledge and an understanding of the landscape of actors and the scale of their activities.” Blasiak points to examples like the use of extremophile ocean species in the cosmetics industry through genetic sequencing or the extraction of omega-3 from small fish as “remarkable achievement[s], and has substantial implications for a range of industries from the food industry (for example aquaculture and fisheries) to the health industry (dietary supplements)”. The report co-authored by Blasiak found that by 2025, the global market for marine biotech is estimated to reach $6.4 billion, and will be adapted for commercial use in the pharma, biofuel and chemical industries. He said: “My impression is that no one has a very clear idea of how rapidly this industry will grow, but we do know that there is a tremendous diversity of life in the oceans, and much of it is still unknown. Future commercial applications from marine biotechnology are an additional question mark coming at the end of a long list of question marks.” IPPro
Brian Beckham · Interview
Marked by uncertainty Amid confusion following the implementation of GDPR, Brian Beckham explains some of the biggest issues affecting the WHOIS landscape Barney Dixon reports Since we last spoke, much has changed in the European landscape. How has GDPR affected the WHOIS landscape? From what we understand from brand owners, the current WHOIS landscape seems to be marked by uncertainty. We understand that, likely due to different interpretations of both the EU’s General Data Protection Regulation (GDPR) and ICANN’s guidance in its Temporary Specification, there is inconsistency in the information publicly displayed by registrars. For example, we are told that some registrars are displaying historic WHOIS information, and others are redacting registrant information irrespective of the jurisdiction of the registrar/ registrant. Questions have been raised as to whether the latter’s more operationally efficient approach is ‘overcompliant’ with the GDPR.
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How useful has ICANN’s Temporary Specification been in solving some of these issues? What is the permanent solution? So far it seems to be having a useful educational and ‘holding’ effect. On the former, while even before the GDPR came into force, it was possible to file a UDRP case against a privacy/proxy registrant, ICANN’s Temporary Specification affirms this using the concept of a ‘Doe’ complaint. This seems to have given brand owners some assurance that enforcement through the UDRP is still possible even if the identity of the registrant is not known at the time a case is filed. This is useful in that at least while a more longlasting solution is being worked out, case parties and UDRP providers are reasonably aware of the rules of the road. Equally, it has given UDRP providers a reference tool for those occasions where a registrar may not fully understand their obligations under the Temporary Specification (for example, where they would initially ask WIPO for a court
Brian Beckham · Interview order or otherwise initially refuse to provide the registrant contact details). In terms of brand owner efforts outside the UDRP case context, while we do not have any direct experience with this, we have heard concerns raised by brand owners as to whether the use of registrar webforms or email forwarding services (as provided for under the ICANN Temporary Specification) is effective in reaching the underlying registrant.
How has GDPR affected UDRP complaints at WIPO?
How important is a unified access model for domain name ADR and enforcement generally? Does WIPO have any suggestions for such a model? To the extent possible under the GDPR, and from what we know so far, we believe that a unified access model is the most efficient way forward for all stakeholders. It seems relatively clear that both brand owners and registrars would be well-served by a standardised approach— particularly in terms of the information that would be required by registrars to support a brand owner request for registrant information.
In many cases, experienced filing parties seem to have been able to obtain registrant contact information directly from the concerned registrar. For those cases where this was not possible (whether because the complainant was not aware they could inquire with the registrar or otherwise), as noted above, with the ICANN Temporary Specification explanation about a ‘Doe’ complaint, WIPO will relay the registrant information it obtained from the registrar to the complainant for purposes of an amendment to the complaint to reflect the registrant (in some cases this triggers updates to arguments concerning bad faith).
WIPO has signaled its willingness to discuss providing some form of ‘token’ of IP ownership/credentials as one piece of this puzzle.
At the same time, for brand owners who are unable to obtain registrant information directly from a registrar prior to filing a UDRP case, this will negatively impact their ability to file a more efficient consolidated case. In a purely numeric sense, there does not seem to have been any material impact on UDRP case filings, as WIPO continues to experience record case filing volumes.
For now, WIPO has published what it hopes is helpful information and GDPR-related guidance for UDRP stakeholders at: www.wipo.int/amc/en/domains/gdpr.
We believe this side of the unified access model is possibly the most straightforward part of ICANN’s Expedited Policy Development Process discussions—so far however, these ICANN discussions seem to have been focusing on more threshold/principled issues such as the permissible scope of data collection and proportionality assessments.
Topics such as case consolidation (relevant also before the GDPR), are covered in WIPO’s Jurisprudential Overview 3.0: www.wipo.int/amc/en/domains/search/overview3.0. IPPro
To the extent possible under the GDPR, and from what we know so far, we believe that a unified access model is the most efficient way forward for all stakeholders Brian Beckham Head of internet dispute resolution section WIPO
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Japan Insight · Feature
The land of the rising sun Yoshitaka Sonoda of Sonoda & Kobayashi IP Law runs through the current IP landscape in Japan, it’s challenges, and looks to the future What is the current landscape for IP in Japan?
What challenges is Japan’s IP system facing?
The Japanese companies continue to shift their patent applications from Japan to foreign countries. From 2008 to 2018, patent applications filed in Japan decreased by 18.5 percent while at the same time the patent applications filed outside Japan by Japanese applicants increased by 69.2 percent, although Japan is still one of the few countries, including China, the US and Korea where the applicants file more domestic patent applications than abroad. The Japanese government and public organisations are proactively making various efforts to provide an efficient legal platform for the protection of intellectual property rights in view of the upcoming fourth and fifth industrial revolutions where substantial changes are predicted in the nature of IP disputes as well as the players.
The Japanese government foresees that various industrial sectors which had no competition with each other 20 years ago will have to compete regarding the application of the internet of things and artificial intelligence in the future and there will be a high potential of disputes and licence negotiations between companies belonging to different industrial sectors. Since the attitudes towards the IP rights tend to be substantially different depending on industrial sectors, there will be strong demands for common grounds for dispute resolution and licensing. In order to enhance predictability and facilitate negotiations between right holders and implementers, the Japan Patent Office (JPO) has issued a guide for licence negotiation regarding standard essential patents (SEPs) and decided to broaden the application of the “Hantei” system to provide legally unbinding opinions regarding the essentiality of SEPs. An International Arbitration Center in Tokyo, the first one of this kind in Asia, which is dedicated to out-ofcourt resolution of cross-border IP disputes, will start functioning with the arbitrators from around the world in September 2018.
Japan Insight · Feature How problematic, if at all, is China for Japan’s IP system? Some Chinese trademark applicants were notorious in Japan because many well-known Japanese product names were registered by them in China to demand high royalties for the importation of such Japanese products into China or otherwise block the importation of such products. However, the Chinese government has taken measures to restrict such an abuse of the trademark system by demanding a business plan to use the trademark so that a trademark application is valid in China and this enforcement of policy is taking effects.
What are the most exciting prospects for Japanese IP? Are there any new laws or regulations coming in that could alter the landscape? The patent law will be amended in the near future to facilitate the collection of evidences from the alleged infringers in view of the fact that the patentee has an enormous burden or sometimes it is practically impossible to prove infringement when the patent is on a method performed in a factory of the alleged infringer. According to the amended patent law, an infringement court can assign a neutral technical expert for in-camera procedures to determine whether the documents held by the alleged infringer are relevant and therefore submission of the same must be ordered by court. It is also expected that courts will lower the threshold to order submission of documents so that the court order will be used more often.
Substantial amendments of the design law are at the final phase of discussion. The proposed amendments include the extension of the term for protection from 20 years to 25 years, protection of website and building designs, and abolishment of the one year limit to file applications for similar designs, and enabling to include more than one designs in a design application.
What advice would you offer to those looking to protect their IP in Japan? With regard to patents, it is worth noting that the JPO now has the world’s highest grant rate as an examination authority. This fact adds one more reason to apply for a patent protection in Japan in addition to its transparent examination standards and predictable enforcement. However, when a patent application from abroad is rejected by the JPO, there is often common reasons for rejection such as the lack of support by the specification and the lack of enablement in addition to the lack of an inventive step. The lack of inventive step is often issued when the JPO finds a Japanese language prior art which has not been cited by other searching authorities. This may be avoided by choosing the JPO as the International Searching Authority for a patent cooperation treaty application. Since the standards for support and enablement requirements at the JPO are closer to those of the European Patent Office (EPO), although not the same, rather than the US Patent and Trademark Office, the lack of support and the lack of enablement may be alleviated by drafting the specification to meet the requirements by the EPO. IPPro
Yoshitaka Sonoda is fluent in both English and French, skills which were acquired as a researcher at the Saclay Nuclear Research Centre of the Commissariat a l’Energie Atomique et aux Energies Alternatives in France. Sonoda spent three years thereafter working on transient vibration and instability problems in nonlinear systems, for which he was awarded a PhD by the University of Tokyo. After returning to Japan, he was a researcher at Hitachi, and he joined the field of intellectual property law in 1987. He has acquired extensive knowledge and experience in various aspects of IP rights over more than 20 years, including 10 years served as a director in a major Japanese IP firm and 15 years at Sonoda & Kobayashi as a managing director since its founding in 1998.
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Yoshitaka Sonoda Co-founder and managing partner Sonoda & Kobayashi IP Law
Aloha Dispute · Feature
Aloha no more Who owns the word ‘Aloha’? Ben Wodecki reports William Shakespeare once famously wrote, “what’s in a name? That which we call a rose by any other name would smell as sweet”. This quote, however, is idyllic. In the modern world, names and words have different and important meanings, the roots of some which go further than others, and those owning these words can seek legal protection in the form of a trademark. In Hawaiian, the term ‘Aloha’ is used when greeting or parting from someone, but it can also mean love, affection, and peace, as well as compassion and mercy. The cultural roots of this word are embedded in Hawaiian memory. Poké, which is also Hawaiian and means “to slice” or “cut crosswise into pieces”, is diced raw fish and is one of the main dishes of Native Hawaiian cuisine. In August, a Chicago-based Hawaiian food chain, Aloha Poke Co, came under fire for demanding companies across the US cease using the word ‘Aloha’. Chicago’s “poké pioneer” began as a tiny food stall in a train station, but now, according to its website, Aloha Poke is “spreading its wings from coasts to capital”. Jeffery Samson, co-owner of Aloha Poke Shop in Honolulu, Hawaii, received a letter from legal representatives for Aloha Poke Co saying that the name of his store causes confusion,
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which could lead to consumers mistakenly believing that its food, products and services were associated with, authorised by, or somehow related to Aloha Pokē Co. The representatives said that the Chicago-based company had rights to both Aloha and Aloha Poke trademarks. Included in the letter to Samson, was a certificate for two trademarks, both for the term Aloha Poke, both for use in class 43 (catering, restaurant, and takeout services). One in standard characters without claim to any particular style, font or colour, and the other consisting of a circle surrounding the stylised text ‘Aloha’, atop smaller text reading ‘Poke Co’. Outrage to the cease and desist letters led to a petition, started by Kalamaokaaina Niheu, who called for the company to “cease and desist” from using terms in all current and future businesses. At the time of writing, Niheu’s petition has over 170,000 signatures. The petitioners believe that “the words ‘Aloha’ and ‘Poke’ belong to the whole Hawaiian culture, not to a US company in Chicago”. “We understand that this will come at some cost to you, but we think that cost to a multi-million dollar company is comparable to the cost that you have asked these small families to suffer … Mahalo nui loa, (not copyrighted, still not yours to have).” The dispute caught the eyes of the world. Niheu uploaded a Facebook Live video which was viewed over 80,000 times. She claimed that the Aloha Poke company had been aggressively threatening Kanaka Maoli families with legal action for use of the word Aloha.
Aloha Dispute · Feature The chair of Hawaiian affairs in the Hawaii state house, Kaniela Ing, also took to Twitter to condemn the actions of the company. We reached out to John Chen, owner of a small restaurant in Singapore that shares the same name as the Chicagoan chain. Chen points out the various meanings of Aloha and says that his business lays “no claim to the words ‘Aloha’ and ‘Poke’ as we are respectful of Hawaiian culture and heritage— something we have grown to love in our vacations to the Hawaiian islands”. “Its baffling to me that a business would attempt to prevent others from trying to use those words.” Mark Foreman, director of trademarks at law firm Osborne Clarke admits that he’s “very surprised” that Aloha Poke Co was even allowed to register the term. He says: “I am very surprised that the Chicago company was able to register Aloha Poke, given its meaning and the strict examination process that US Patent and Trademark Office tends to apply”. “That said a number of other parties have registered trademarks in the US comprising, or including the term Aloha, for products and services, ranging from clothing to condoms.” Foreman says that typically trademark offices won’t permit parties to “register trademarks that others are using or would legitimately want to use them”. He says that they would be seen as “being descriptive or nondistinctive … trademark offices can also often refuse marks on the grounds of public policy or which are contrary to accepted principles of morality. Ethical considerations will come into play here.” Personally, Foreman admits that he “doesn’t believe parties should be able to monopolise terms that have a cultural significance to a community or region”. “They should be free for that community (and where appropriate) others to use. In the most part, trademark offices around the world prevent this from happening by refusing such marks during the registration process, or cancelling registrations for marks that have been incorrectly registered.” Foreman explains that small businesses “may find themselves in very difficult positions, where they are in the ‘moral’ or even legal right, but do not have the financial muscle to defend their position.”
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“This does not mean that larger organisations are not entitled to enforce their rights against smaller organisations, on the contrary, they have as much right as smaller organisations to do so.” “What large organisations should not do though, is abuse their position and bully small organisations, especially where the rights in question are dubious. Apart from being morally wrong, the negative PR that it can generate, as we have seen in the Aloha Poke case, can make it a bad business decision too.” With trademark attorneys, politicians, and Hawaiians against the company, it took to Facebook to try and clear the air and give its side of the story, suggesting that a significant amount of misinformation about Aloha Poke Co has caused “a considerable amount of anger and offence among those who care very passionately about their Hawaiian culture”. In a lengthy post, Aloha Poke Co argues that it did not tell Hawaiian-owned businesses and Hawaiian natives that they cannot use the word Aloha or the word Poke. It said: “This simply has not happened, nor will it happen. We truly celebrate Hawaiian culture and what makes it so wonderful, which is very much the reason why we branded our business as we did.” “It is entirely false that we have either sued businesses for using the word Aloha or the word Poke or sought a ‘gag order’ on anyone for using the words. We honestly do not know how either claim came to be, but this is simply not true.” “What we have done is attempted to stop trademark infringers in the restaurant industry from using the trademark ’Aloha Poke’ without permission. This is a very common practice used across industries, and in particular, in the restaurant industry to protect the use of a business’ name and brand.” “This means that the company has the exclusive right to use those words together in connection with restaurant services within the US. This trademark does not prevent another person or entity from using the word Aloha alone or the word Poke alone in any instance.” “In the rare instance where we have needed to send notices to those using our trademark in the restaurant industry, we have done so in a cooperative manner, and all have complied with our request to rebrand without any resulting legal action. Not a single business has closed as a result of this.” The brand said it was “truly sorry for all of the confusion that this has caused”. IPPro
Industry Events AIPPI World Congress 2018 Cancun, Mexico
www.aippi.org/event
23-26 September 2018 The IP World Summit Amsterdam, the Netherlands
www.ipworldsummit.iqpc.com
08-10 October 2018 LES 2018 Annual Meeting Boston, Massachusetts, USA
www.lesmeetings.org
14-17 October 2018
The primary source of global intellectual property internet news and analysis
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