Posts Tagged: "enforcement"

Protecting brands and going after counterfeiters is like herding cats. There are hundreds, if not thousands, of ways that online counterfeiters illegally monetize brands. Companies have many ways to combat them, but it can traditionally take lots of time, cost, and resources to do it. Now there is a less publicized option in the United States which can deter counterfeiters, takes little time, and often even pays for itself. This ultimately can result in true deterrence of counterfeiters for a brand in online marketplaces. With online sales exploding, there has been a marked increase in sales of counterfeit products, despite various solutions available to combat it. Indeed, the industry as a whole will see over $1.7 trillion of sold counterfeit products on various online platforms each year—and that estimate, by the International Anti-Counterfeiting Coalition, was in 2015. Counterfeit sales result in the loss of millions of U.S. jobs and lost profits, and is by far the world’s largest criminal enterprise, with eCommerce counterfeit sales expected to grow to $6 trillion by 2024 in the United States alone. 

Despite high aspirations among political leaders, lawyers and others for a rules-based international order, a major new study from researchers at York University finds that the 250,000 existing treaties designed to foster international cooperation have mostly been ineffective. One big exception, however, is in the area of trade and finance, where negotiators wisely put meat on the bones of the commitments by including meaningful enforcement mechanisms. As a result, the researchers found, these international agreements were effective in increasing commerce and global prosperity.

As a former Chairman of the House Judiciary Committee and co-author of major patent legislation, I have a special interest in supporting and protecting U.S. intellectual property rights. So, I took note last month when the Office of the U.S. Trade Representative (USTR) released its latest Special 301 Report on Intellectual Property Protection and Enforcement.

The Office of the United States Trade Representative’s (USTR’s) 2021 Special 301 Report, published late last month, brought into sharp relief one of the ongoing issues the United States has with China. The country was again listed on its “Priority Watch List” in this annual review of the state of intellectual property (IP) protection and enforcement in the United States’ international trading partners, and the report explained that the United States remains unsatisfied with China’s failure to grant IP protection and enforcement to foreign rights holders. On the surface, very little is surprising about the USTR’s statement concerning China’s approach to the enforcement of IP rights. By now, China’s failures in the context of IP enforcement are a well-known refrain in the Western media. But dig beneath the surface, and the statement raises a multiplicity of issues that have gone unaddressed. Which IP rights are at issue? Whose IP rights are not being enforced? Should one country enforce the IP rights of the citizens of another country? If so, how and in what way does it do that? Last but not least, has the United States enforced the IP rights of the citizens of other countries?

In response to our recent article on artificial intelligence (AI) reducing transactional costs to help determine infringement and invalidity determinations, a commenter made an interesting counterpoint, paraphrased as the following: AI provides useful tools that should be used as an aid to human thinkers, not as a replacement to human thinking. Moreover, when it comes to AI making subjective determinations, such as obviousness or novelty, we should be skeptical of relying on AI, either legally or practically. We appreciate the counterpoint and we wanted to address it in this follow-up article.

Patent litigation and enforcing patents can be cost prohibitive for many individual inventors and smaller businesses. Hourly rates at large firms may be out of reach for those with “not so deep pockets,” and most litigation funding companies either avoid patent litigation altogether or require a case valuation in the tens of millions of dollars. Enforcing your patent rights can be an expensive endeavor, but affordable options do exist.

The Federal Circuit panel of Chief Judge Sharon Prost and Circuit Judges Jimmie Reyna and Kimberly Moore determined that the ITC erred in applying res judicata to deny the petition without considering the effect of district court litigation which invalidated the claims asserted in the Section 337 proceeding… Ultimately, the Federal Circuit ruled that the ITC is not barred from reassessing the EPROM factors and determining whether to modify or rescind the civil penalty based on the final judgment of invalidity. The ITC’s decision was, therefore, reversed and the case remanded for the Commission to consider whether to rescind or modify the civil penalty in light of the final judgment of invalidity of the relevant claims.

Trademarks protect distinctive marks, such as brand names, logos, and designs.  This protection allows a trademark holder to exclude others from using the mark without permission of the owner. The following includes important, basic information about trademarks, as well as how start-ups can protect their trademarked intellectual property.

According to the Office of the United States Trade Representative, imports of counterfeit and pirated physical products are valued at about half a trillion dollars, or about 2.5 percent of all imports around the globe… The recent review of notorious markets by the USTR identifies 43 such markets offering counterfeit or pirated goods either through physical stores or online channels. A total of 25 notorious markets identified in the report operate in the online space as websites either facilitating infringing conduct or lacking consumer privacy safeguards, some of which even enable the installation of malware on consumer computers. This malware can include remote access Trojans (RATs) which can steal sensitive personal information, like bank account information, or gain control of computer hardware.

I used to receive telephone calls, quite frequently, asking about the procedure for preparing and filing a patent application. Today, I no longer receive these calls. I suspect the main reason is that inventors are giving up an expectation that patent protection is even worthwhile. And I get it. If I were to get a call these days, I could no longer paint a rosy picture for would-be patentees… But these days, I fear the conversation would have a different tone. It might go more like this… “for a mere $2,625,000 you can disclose your most important innovation to your competitors, and they can use it and make sure that you actually have no rights to it.”

The message is being received by patent owners around the world, including those with large U.S. patent portfolios, that China is a reasonable and fair place to resolve patent disputes… Aside from any anecdotal evidence and cultural bias theories, it is also hard to ignore the reality playing out inside the Chinese IP courts. Foreign patent holders have been having a great deal of luck in China’s IP courts, at least at the courthouse situated in Beijing… If these patent granting and litigation trends continue, we could be left with the rather mind-numbing conclusion that China, a country ruled by a communist government, has a more robust innovation protection regime than the United States, an ostensibly capitalist country that doesn’t seem to see the virtue in protecting the rights of innovators.

Every year countless stories arise of individuals, churches, and small businesses, receiving cease and desist letters from the NFL or NCAA for unauthorized use and reference to their respective SUPER BOWL, MARCH MADNESS, and other trademarks. The success of these enforcement letters comes from a mixture of the organizations’ trademark rights under the Lanham Act and the fear that these financially well-endowed organizations could sue. The International Olympic Committee (“IOC”), and its national governing bodies, like the USOC (collectively the “Olympic Committee”), also aggressively enforce their rights in their Olympic trademarks, slogans, and symbols (the “Olympic properties”). The Olympic Committee not only employs the traditional methods of other sport organizations, but has several additional weapons that provide a true monopoly on the Olympic properties; thus, significantly increase its success.

Over the course of several amendments, Disney granted increasing rights to Candella, by which Disney specifically intended to give Candella standing to sue for patent infringement. The court held that the rights retained by Disney were not “substantial rights” sufficient to deprive Candella of standing, because Disney did not retain a right to exclude. Disney merely had a financial interest in any enforcement efforts by Candella. Thus, Candella did not have to join Disney to maintain the lawsuit.