In a frighteningly bizarre Orwellian case, a guy who criticized the fact that an organization was trying to trademark the word 'freecycle' got sued for trademark infringement because he used the word in his criticism. The organization even got a lower court to issue a preliminary injunction preventing the guy from 'disparaging' the trademark.

Fortunately, the 9th Circuit Appeals Court freecycled the case back to reality - ruling that not only was there no trademark infringement here, but also declaring that federal law doesn't recognize an action for trademark 'disparagement'.

PDF link to the case here.

A potentially important court decision discussed here. The First Amendment has been traditionally rejected as a defense against a copyright infringement. Although the door has only been opened a crack at this point, that may be about to change.

Since nearly all creative works build upon previous works on some level, I would think that the devastating effects on free speech would be obvious when you attempt to take a public domain work and try and reassert copyright protections on it. All of the subsequently created derivative works that were created during the public domain window would presumably have to be repressed and/or destroyed.

It is a well known secret that California-based burger chain In-N-Out has a 'secret' menu that is not displayed or advertised at any of their stores. It allows people to order items that are not found on any of their limited menus.

When you order a 3x3 burger, or "Animal Style" burger, In-N-Out service people will know what you are talking about.

However, I have a problem with a judge ruling that such terms are trademarks owned by In-N-Out. [PDF alert. Hat-tip Courthousenews.com]

Even if In-N-Out actually registered a trademark in such terms, a minimum requirement for trademark protection demands that the mark actually be used in commerce. If you deliberately hide a mark from the public, you should lose trademark protections. (And no, simply referring to the terms on a company website should not count. If you don't use the mark on the product or place of business, there is no mark to protect.)

Although I recognize the legitimacy of trademarks to protect against actual consumer confusion in the marketplace, I think the judge blew it on this one.

Via Courthousenews.com -

ALEXANDRIA, VA. (CN) – An inventor has sued the U.S. Patent and Trademark Office, challenging new regulations that will limit the number of continuations an inventor can file on an original patent. Plaintiff Triantafyllos Tafas has eight patents and 17 patents pending. He asks the Federal Court to enjoin Sections 1.75 and 1.78 of 72 Fed Reg. No. 161, promulgated on Aug. 21, to take effect Nov. 1, claiming they violate the Patent Act and the Constitution. The revised rules “limit the right of a patent applicant to continue prosecution of applications related to a single invention … substantially change the regulatory landscape under which inventors … have traditionally operated, and, once effective, will frustrate the purposes of the U.S. Patent laws by preventing Dr. Tafas and other similarly situated inventors from realizing the full economic potential of their work.”

Courthouse news has posted a copy of the actual complaint here. [PDF file link.

By the way, just how many patents does Adobe claim are contained in its Reader program? Try to count them as the PDF Reader program loads up.]

A federal appeals court has issued a ruling this week that makes it more difficult to accuse a company of "willful" patent infringement.

Court opinion here.

News summary here.

Patently-O Patent Blog input here.

Second Circuit Court of Appeals upholds a federal law that bans "bootleg" recordings of live music performances. It admits that the law is not constitutional under the limitations of the Copyright Clause, but in the next breath explains that it is still permitted under the even broader Commerce Clause which essentially allows the federal government to regulate everything in today's world.

The one silver lining is that the Appeals court remanded the case back to the trial court to consider possible First Amendment defenses. It is still unclear how that argument might shape out in court.

The lawsuit was briefly mentioned on this website here.

Fortunately, a federal judge has done the right thing and upheld free speech rights.

In her suit, filed in March in U.S. District Court in Los Angeles, Burnett claimed that after she refused to grant Fox and Family Guy mastermind Seth McFarlane consent to use the theme music from The Carol Burnett Show, they "knowingly and deliberately" rewrote the episode to disparage Burnett's famous cleaning-lady character.

...

In his ruling signed Friday and made public Monday, U.S. District Judge Dean Pregerson saw little if any harm done to Burnett. While he "fully appreciates how distasteful and offensive the segment is to Ms. Burnett," Pregerson noted that parody is protected by the freedom of speech rights guaranteed under the First Amendment.

Burnett's original complaint can be read here.

This looks very bad.

Sun, 27 May 2007 19:46:17 +0900 PatchA

Dear all,

Finally, the full text of Korea US FTA was released last Friday. (http://www.mofat.go.kr/mofat/fta/eng/eng_list.htm)

It has many poisonous articles. We are very worried about the IPR chapter and the confirmation letters of IPR have very dangerous things which the former US FTA didn't have.

For examples, both governments agree on the objective of shutting down the internet sites that permit unauthorized reproduction, distribution, or transmission of copyright works. Korean government are shutting down even P2P service and webhard service. I think most of the internet sites including portal, UCC/UGC, blog sites etc.can be shut down by the government.

And it also includes strong enforcement activities on book printing on university campuses.

If this Korea US FTA is passed, then the US will request other countries to include these things in the following FTA. So it needs to have international solidarity activities to stop this kind of US FTA.

Please check below and we welcome of your criticizing opinions or statement to this IP chapter of Korea US FTA. We will post it to our struggle website (http://nofta-ip.jinbo.net) And please forward it to other people world-wide.

Korean Alliance Against the Korea-U.S. FTA and social organizations will have a press conference about the problem of IPR chapter of Korea US FTA on Monday(May 28th).

In soldarity, patcha

============================ Kim Jeong Woo (PatchA) Korean Progressive Network 'Jinbonet' Tel) +82-2-701-7687 Fax) +82-2-701-7112 Web) http://www.jinbo.net Email) i@patcha.jinbo.net / patcha@patcha.jinbo.net ============================

? Confirmation letter (Online Piracy Prevention) - Full text - http://www.mofat.go.kr/mofat/fta/eng/e45.pdf The Parties agree on the objective of shutting down Internet sites that permit the unauthorized reproduction, distribution, or transmission of copyright works, of regularly assessing and actively seeking to reduce the impact of new technological means for committing online copyright piracy, and of providing generally for more effective enforcement of intellectual property rights on the Internet.

Korea also agrees on the objective of shutting down Internet sites that permit the unauthorized downloading (and other forms of piracy) of copyright works, including so-called webhard services, and providing for more effective enforcement of intellectual property rights on the Internet, including in particular with regard to peer-to-peer (p2p) services.

Korea will work to prevent, investigate, and prosecute internet piracy. In doing so, Korea will work with the private sector, the other Party, and other foreign authorities. ? Confirmation letter (Promoting Protection and Effective Enforcement of Copyrighted works on University Campuses) - Full text - http://www.mofat.go.kr/mofat/fta/eng/e46.pdf The Parties recognize the importance of preventing illegal copying and distribution of copyrighted works on university campuses and providing effective enforcement against book piracy. Therefore, consistent with Korea's May 2004 Master Plan for IPR, Korea agrees to continue to increase its efforts to improve awareness of copyright infringement activities and book piracy on university campuses and reduce illegal reproduction and distribution of copyrighted works.

The Full text of IP Chapter is below Intellectual Property Rights - http://www.mofat.go.kr/mofat/fta/eng/e43.pdf Confirmation letter (Internet Service Provider) http://www.mofat.go.kr/mofat/fta/eng/e44.pdf

Confirmation letter (Promoting Protection and Effective Enforcement of Copyrighted works on University Campuses) http://www.mofat.go.kr/mofat/fta/eng/e46.pdf

Confirmation letter (Online Piracy Prevention) - http://www.mofat.go.kr/mofat/fta/eng/e45.pdf

Details here.

[Update: Wired readers submit their own suggestions for patent reform.]

From Michael Barclay via the SCOTUS blog:

This decision makes it far easier to invalidate patents based on obviousness. Thus, this is the most important patent case of the last 20 years, and perhaps since the passage of the 1952 Patent Act. Virtually every litigated patent case includes an assertion of obviousness - and ones that might not have included that defense up until now are more likely to do so. The PTO examines every patent application for obviousness. KSR v. Teleflex will thus have an enormous impact on both the prosecution and litigation aspects of patent practice.

Here here. It is sad when the Supreme Court has to essentially issue a ruling on what the word "obvious" means. But at least they got it right. I would suggest that people start searching through all of the bogus patents out there, find a way to get standing in court, and start issuing challenges.