Charlotte Intellectual Property Journal,Charlotte Intellectual Property Law Journal Christopher Ashiotes
2013-2014 Inaugural Edition: Volume 1 - Spring 2014
Welcome to the Inaugural Edition of the Charlotte Intellectual Property Journal! This edition is just the genesis of the developing legal issues within Intellectual Property that the Charlotte Intellectual Property Journal will publish. Special thanks to our Executive Board, Christopher Ashiotes and Samantha Dorsey, as they have put in countless hours, energy and effort into building this journal from the foundation up to produce this Inaugural Edition. I would like to thank our Founders, Stephanie Frank and Desiree Chihade for the vision of creating a journal where Intellectual Property is given the importance and its own path as the legal issues within technology and innovation continue to grow in proportion to its usage in everyday life. Lastly, thank you to all of the authors who submitted their articles for publication to this newly established journal, your belief in our mission does not go unnoticed.
Trolling On The High Road: Preserving Judicial Integrity in BitTorrent Pornographic Copyright Infringement Cases
By: Nathan J. Chan
Since the first half of 2010, federal district courts across the country have been flooded with hundreds of mass pornographic copyright-infringement cases (“BitTorrent cases”) involving over 220,000 John Doe defendants (“Does”). Copyright holders who file these cases allege digital piracy of their copyrighted movies using BitTorrent software and in violation of the U.S. Copyright Act of 1976. One of the most prominent groups of copyright holders are adult-film companies (“Companies”) that allege illegal distribution of their pornographic movies. The Companies have no option but to use the judicial system to uncover the actual identities of the alleged infringers because the Does involved are only known by their internet protocol (“IP”) addresses. In a process known as “copyright trolling,” Companies pursue Does by filing suit in federal district court either against individual Does or groups of joined Does, then serving a third-party subpoena on internet-service providers (“ISPs”) to uncover the Does’ identities, and eventually voluntarily dismissing the Does in order to seek private settlement.
Suspended Innovation – The Collateral Effects of the International Trade Commission’s Exclusionary Powers
By: Phong Tran
The United States International Trade Commission (ITC) provides a special forum for patentees seeking injunctive relief against the importation of infringing products into the United States. The ITC was originally created to protect domestic companies from foreign infringement, but after the standard for obtaining injunctions was heightened by the U.S. Supreme Court’s decision in eBay v. MercExchange, the ITC has evolved into a mainstream forum for patentees—both foreign and domestic—to file general grievances.
This occurrence is best illustrated in the seemingly perpetual litigation taking place between developers and manufacturers of smartphones and smartphone-related technologies, aptly dubbed the “Smartphone Wars.” Patentees in the lucrative smartphone industry are attracted to the ITC’s speed, efficiency, and relaxed rules; in particular, the ITC has a much lower standard for obtaining injunctive relief in the form of exclusion orders. Against this backdrop, smartphone litigants are taking advantage of this lower standard for obtaining injunctive relief by using the threat of an exclusion order to extract more favorable licensing terms for their patented technologies than they would have obtained otherwise. Known as “patent holdup,” this deleterious practice often has the collateral effect of suspending the innovation process.
In the Spotlight: An International Look on Copyright Protection Versus Design Piracy
By: Philip Liu
Fashion reaches beyond the United States making the fashion industry an important matter for the national economy. Not only does fashion direct how society dresses itself, it has also become a way of expression. The growth and development of the fashion industry is evident from the transition of garments performing a mere utilitarian function to the artistic creation of the garment. Garments have gone beyond performing mere social and cultural functions to an expression of art and aesthetics.
American intellectual property law provides insufficient protection for fashion designs. The fashion industry is subjected to counterfeits and design piracy or “knocking off” (“design piracy”). Counterfeiting is a form of infringement where a party deliberately and knowingly misappropriates intellectual property of another by making a copy of an original good with the intent to mislead the consumer as to the product’s origin.
Trademark Enforcement within the European Union: The Development of Provisions Concerning Counterfeit Goods in Transit
By: Lolwa Naser Alfadhel
The article aims to examine the legal situation relating to counterfeit goods in transit and the responsibilities of intermediaries in the transport of such goods within the European Union (EU). Reference will be made to regulations that preceded Regulation 1383/2003 and the amendments brought about by such regulations. The development of laws concerning border measures within the EU has been rapid, however, despite the implementation of Regulation 1383/2003, the problem of counterfeit goods passing through the EU still stands. Furthermore, in Philips/Nokia, the European Court of Justice (ECJ) held that goods coming from non-member states and held by customs under suspended procedures could be detained if suspected that they may be diverted into the EU markets. However, the manufacturing fiction doctrine may not be taken into consideration when assessing infringement, as actual proof of infringement is required. This places a high burden of proof on trademark owners, as the mere existence of an indication that the goods will be put on the EU market is not sufficient. There must be substantive evidence such as advertising, offer for sale, or actual sale. The issue with this approach is the difficulty for trademark owners to prove or have access to the information to meet this burden of proof as only the parties involved in the transshipment have the relevant information. This article aims to make several proposals in respect of remedying counterfeits in transit within the EU. It will provide analysis that will contribute to the balancing between the Customs regulation and international trade obligations.
Notes.
THE LANHAM ACT AND ITS REMEDIAL SCHEME: THE POTENTIAL FOR FORUM SHOPPING
By: Jasmin L. Brooks
The purpose of the Lanham Act is to provide trademark owners with the rights to protect their investment in the mark while simultaneously maintaining integrity within the marketplace. There are numerous remedies available to cure the damage of trademark infringement endured by the plaintiff. Generally, the standard for the liability of trademark infringement is uniform across the circuits, however the standard of recovery for the disgorgement of the infringer’s profits is not. As a result, the use of the various standards for recovery across the circuits has produced a variety of monetary awards. This, in turn can promote forum shopping for the plaintiff to ensure that a return on his investment is met.
Bowman v. Monsanto: Expanding Utility Patent Protection For Self-Replicating Seeds
By: Briana Dudas
The doctrine of patent exhaustion provides that the initial, authorized sale of patented item terminates all patent rights to that item. In order to promote downstream sales activity and a free-flowing economy, the Supreme Court has applied patent exhaustion to limit a patent holder’s ability to restrict the use of a patented item for more than 150 years. However, in Bowman v. Monsanto, the Supreme Court unanimously slammed the door on patent exhaustion as a defense to seed patent infringement. This created an exception to the well-settled rule for self-replicating seed technology.