WORLD IP DAY 2018- Powering Change: Women in Innovation & Creativity

On this day, we celebrate women around the world who have made innovations and creations in their respective fields and made an impact in the society. This includes innovations in science and technology, research and development, academics and original creations in the creative industries. Intellectual Property (IP) has played a continuous role in protecting these creations and increasing their value.

A look into history takes us to Mar Dixon Kies- the first woman in U.S.A to receive a U.S patent (in 1809) for "weaving straw with silk or thread to make hats". This patent record was unfortunately destroyed in 1836 in "The Great Patent Fire". Later on, in 1845, Sarah Mather obtained a patent for inventing a "submarine telescope and lamp" which allowed maritime vessels to analyse the ocean's depths. 

In 1902, Marie Curie successfully conducted pioneering research in radioactive theory for which she received a Nobel Prize. She was also the first person to win a Nobel Prize twice and in two separate sciences- Physics (1903) and Chemistry (1911).

Others include Stephanie Kwolek who invented Kevlar fibre in 1965. The unique material is "five times stronger than steel" and is used in making musical instruments, bicycle tyres, frying pans, racing sails and bullet proof vests. In the area of research, Dr Shirley Ann Jackson made her mark as the first African-American woman to get a PhD from Massachusetts Institute of Technology (MIT). Her research on "subatomic particles" paved the way for inventions such as fibre optic cables, portable fax, touch tone telephone and solar cells.

There are certain inventions by women that were either taken or made popular by other parties. A good example is Elizabeth Magie who invented the game "Monopoly" (originally called "The Landlord Game") in 1904. The game was later appropriated and sold to the "Parker Brothers" who eventually found Magie and paid her $500 for it. Similarly, Rosalind Franklin successfully proved Watson and Crick's theory of a "double DNA helix" and took the first "x-ray diffraction picture of DNA". Based on this photograph, James Watson and Francis Crick worked out the 3-dimensional structure of DNA. They received a Nobel prize in 1962 for this, at which time Franklin had already passed.

The Landlord's Game invented by E.Maggie (THE STRONG)

Marie Curie won two Nobel Prizes (GETTY)

In celebration of World IP day, the World Intellectual Property Organisation (WIPO) has recognised some of the female inventors, creators and change agents influencing innovation and creativity around the world.

One of these women is Sandra Mjöll Jónsdóttir, the CEO of Platome Biotechnology. Through her company, she has worked extensively to reinvent the process of growing human cells by "creating life science reagents that are completely free from animal components". This is done by transforming waste blood products into "valuable products" that are exploitable by scientists all over the world. Using her company as a case study, she emphasises that IP should come first for Science and Technology companies as this is what allows companies succeed and gives them "unique competitive advantage in the market." Her message to girls and women around the world is: "Believe in yourself and stand up for yourself. Don’t let the fear of failure get in the way of your success. Your ideas are valuable and they are unique, but if you never pursue them, you will never find out their true potential."

Rhona Eastman Jack is a seamstress, entrepreneur and inventor from Trinidad and Tobago. She solved the portability problem of traditional long sewing rulers by inventing the "Udazzle fashion ruler". According to her, it is important for women to take advantage of innovation and invention to boost their world economic status and build self confidence. She calls on all girls and women to innovate: "Look around you. Invention is a solution to a problem. Let’s use our God-given talent to find innovative solutions."

Even in education, women are making breakthroughs in science in technology. For example, advanced diploma students at the Higher College of Technology in Muscat, Oman (Heba Khalifa Al-Ghafri, Faeza Abdullah Al-Khatri, and Sharifa Hamad Al-Qutati) invented a natural product from a plant extract that enhances hair regrowth. They have gone ahead to register their intellectual property for protection and further development.

Ruth Soetendorp, an academic who teaches IP Management at Bournemouth University, has researched and advocated for IP education for the past 30 years. She believes that women bring a unique perspective to the innovative process through their experiences, history and approach to life.  According to her, "Global economies need the brilliance, ingenuity, curiosity, courage, and diversity of women's contribution to ensure the success of our common future."  Also, there is a dire need for the recognition and encouragement of young women's "inquisitive creativity" in an environment that emphasises the role of IP in "translating natural talents to commercially valuable assets."

Sandra Mjöll Jónsdóttir, CEO  Platome Biotech (WIPO)

Rhona Eastman Jack invented Udazzle fashion ruler (WIPO)

Africa is of course not left out. Ivory Coast's Elisabeth Yoboue is CEO of SOLEEN, which promotes and supplies environmental and energy solutions aimed at reducing pollution. Through IP, the brand "Soleen" is known around the world as a "local change maker with global relevance. She admonishes women and girls around the world to be confident and go for success because the world is theirs.

Likewise, Senegal’s Abibatou Banda Fall runs ARADES (Association for Research Action Development and Environment in the Sahel). This is a non-profit organization which empowers women and young people with the skills to make a living from design and use of organic bread bags, thermal baskets, food processing, crafts, and more.

This list is not exhaustive. There are still many women involved in creativity and innovation in various communities around the world. In the words of Lisa Jorgenson, the Executive Director for the American Intellectual Property Law Association (AIPLA), World IP Day 2018 is about celebrating "the brilliance, ingenuity, curiosity and determination of women who have shaped our past, who are driving change in our world and influencing our future". However more needs to be done to encourage girls and women to invest their time and intellect in creation and innovation with a view to making a difference in their environment. According to WIPO, less than one-third of international patent applications filed in 2015 included female inventors. Although this is classed as an improvement from the previous figure of 17% in 1997, there is still more work to be done in closing the gender gap and eradicating the stereotype of 'male-dominated fields'. The celebration of the accomplishments of these women is not a mere contribution to the feminist rhetoric but seeks to inspire 'would-be' creators and inventors around the world to rise up and make their own contributions to solving problems in the society. Using Intellectual property as a tool, they will be able to protect these creations and maximize the benefits to themselves and to the society at large.

We leave you with the official message of Francis Gurry, Director General of WIPO and wish you all a Happy World IP Day!

WORLD IP DAY 2018

Since 2010, April 26^th has been designated World Intellectual Property (IP) day by WIPO member states. It was also on this day that the WIPO Convention came into force. The aim of the World IP day is to discover and further understand "the role of intellectual property rights in encouraging innovation and creativity".

This year's theme is tagged "Powering Change:  Women in Innovation and Creativity" and aims to celebrate "the brilliance, ingenuity, curiosity and courage of women who are driving change in our world and shaping our common future". 

Over the years, women have continued to make valuable contributions to medicine, science and technology, as well as niche areas such as astrophysics, nanotechnology, robotics and artificial intelligence.  There are also many women in the creative industries. These women have broken boundaries and are attaining greater heights in creative art, literature, movies, music, designs, fashion and more. They are influencing change through their stage and TV productions, music, writings, designs and products; their "go-getting" attitude inspires the creative drive among young women around the world.

Today there are more women winning awards in the creative industries and sitting at the helms of affairs of various businesses. The achievements of such women deserve to be recognised in their own right and not just compared with those of their male counterparts. More so, there should greater involvement, contribution and collaboration among both sexes towards achieving increased innovation, global change and development.

This year's celebration reflects on "how the IP system can support innovative and creative women (and indeed everyone) in their quest to bring their amazing ideas to market."  Are you a female inventor, creator, industry executive or worker; with a passion for inspiring change? The #WorldIPDay is all about you. The IP Journal will be celebrating renowned and upcoming inventors, creators and business owners who have invested in making impact around the world. If you know someone who should be featured or would like to be featured yourself, you can share this by commenting below or sending a mail.  This will be part of the conversation in celebration of #WorldIPDay on April 26, 2018.

LINDSAY LOHAN AND THE FIGHT TO PROTECT PUBLICITY RIGHTS

Photo: Rockstar Games

Lindsay Lohan has lost her latest appeal[1] against Take Two Interactive Software Inc., parent company of Rockstar Games - developers of Grand Theft Auto V (GTAV). This long battle dates as far back as 2014 when Lohan sued Rockstar in Manhattan, followed by an appeal when the case was thrown out of court. The actress contended that her likeness was incorporated into the game and its adverts without her consent and attributed to a game character called "Lacey Jonas" who allegedly looked and sounded like her.  See a post related to the previous case here.

The Latest ruling by the New York Court of Appeal on March 29, 2018, was unanimous.  The court found that the “artistic renderings are indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman that is not reasonably identifiable as plaintiff.” In reaching its decision, the court reviewed the dispute in the case and concluded that an animated depiction in a computer game can amount to a "portrait" as construed under New York's Statute on Publicity Rights. Nevertheless, upon applying this finding to the present case, the court decided that the character "Lacey Jonas" did not constitute a "portrait" of Lindsay Lohan.

According to the Court; "the Jonas character simply is not recognizable as plaintiff inasmuch as it merely is a generic artistic depiction of a 'twenty something' woman without any particular identifying physical characteristics. The analysis with respect to the Beach Weather and Stop and Frisk illustrations is the same. Those artistic renderings are indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman. It is undisputed that defendants did not refer to plaintiff in GTA V, did not use her name in GTA V, and did not use a photograph of her in that game. Moreover, the ambiguous representations in question are nothing more than cultural comment that is not recognizable as plaintiff and therefore is not actionable under Civil Rights Law Article 5"[2].

It's quite interesting that the case has gone this far, especially because there is no use of the actual photograph or name of the actress. Even without the preexisting contention, an ordinary man may not determine a connection between "Lacey Jonas" and Lohan because of the similarity of the personality of the character to the stereotype of most young divas. Lohan has also previously unsuccessfully contested the mention of her name in Pitbull's song- Give me Everything Tonight with the lyric "I got it locked up like Lindsay Lohan". However, she was successful in securing a settlement for the mention of "milkaholic Lindsay" in a 2010 Super Bowl E-trade Commercial. 

While one must applaud Lohan for being persistent in protecting her name and image, one must also insist on a limit to prevent a floodgate of litigation in cases of computer generated or other images deemed to look or sound like every celebrity. If there is no significant or clearly ascertainable similarity or any incorporation of an actual image, is it justifiable to rule in favour of an aggrieved party in publicity rights cases? The courts can help by affirming a clear threshold that must be reached before an animated depiction or similar portrayal can constitute a "portrait" in such cases.

We have previously distinguished Lohan's case from Gwen Stefani  and No doubt's case here; the latter being successful due to the California State Appeals Court's determination that Activision's Band Hero game and the ability of users to unlock special features to manipulate the digital avatars of the No Doubt band members were not sufficiently transformative as they were "exact depictions of No Doubt's members doing exactly what they do as celebrities".

In contrast, the California Court of Appeal has reached a final decision in de Havilland v Feud, where renowned actress, Olivia de Havilland, contested her portrayal in the television docudrama- "Feud" produced by Ryan Murphy, without her consent. The court overturned the trial court's finding that this realistic portrayal was not "transformative" enough and that no defense under the First Amendment could be maintained against Havilland's right of publicity claim under California Law. The appellate court held that the portrayal, which includes interview appearances, was in fact "transformative" and that the right of publicity "could not be used to control a celebrity’s image by censoring disagreeable portrayals consistent with First Amendment and free speech considerations."- via the TCMA.  

Additionally, her claim for damages from her alleged portrayal (as a gossip who uses abusive language) was not upheld since she had given similar interviews over the years. Though there may still be a further appeal, the finding helps to further draw a line in the increasingly popular cases of publicity rights claims.

Unfortunately, plaintiffs may continue to feel dissatisfied with the recent outcomes of publicity right cases based on the belief that their likeness is being exploited for commercial purposes. Lohan and others may remain resolute on defending their rights, but continuous appeals in cases where the depiction in question is not clearly similar to the image or likeness of the plaintiffs only seem to promote the contentious material even more and make more profits for the defendants. For instance, "More than 275 million copies of the Grand Theft Auto video game have been sold since its launch in September 2013" and it "topped the UK games sales charts for the 15th time earlier this month"- via BBC News. Meanwhile, Lohan's career doesn't seem to have experienced a similar rise. It would be interesting to see how future cases in this area unfold and how more rulings influence the legal regime in other countries.

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[1] Lohan v Take-Two Interactive Software, Inc., 2018 NY Slip Op 02208, 2018 WL 1524714 (N.Y. App. Ct. March 29, 2018)

[2] Per Judge Eugene Fahey

Coachella sues Urban Outfitters for Trademark Infringement

Screenshot: Free People

The basis of most trademark cases is the existence of a likelihood of confusion as to origin between the infringing mark and the registered mark. This can also be linked with the Tort of Passing Off, which relates to cases where the infringing mark benefits from the established goodwill of the registered mark.

On March 14, Goldenvoice, owners of the Coachella brand- an annual music and arts festival in California,  initiated a suit for trademark infringement against 'Urban Outfitters'. Goldenvoice alleged that Urban, through its affiliate brand 'Free People', unlawfully used the former's established brand name and registered trademark 'Coachella' to sell clothing and other products.  According to LA Times' report, Urban allegedly 'uses "Coachella" as a search keyword to advertise its products online' and also placed the brand name in Free People's display URLs', which causes a Google search for ‘Coachella clothing’ to result in the 'Defendants’ infringing goods.

Coachella has asked the court for damages as well as an order requiring Urban to remove the infringing items put up for sale and to employ 'corrective advertising' methods to inform users that it is in no way affiliated with the Coachella Festival brand. Coachella has also previously permitted the H & M brand to use its name for the special collection H & M Loves Coachella

This is because the Coachella brand also has its line of branded goods and the misdirection in search results has a high likelihood of confusion. Forbes reports that prior to this suit, Coachella has made earlier demands of Urban to correct this confusion and the latter has also faced several copyright infringement claims from Harley-Davidson and Unicolors as well as other litigation.

The Coachella concert comes up later next month on the weekends of 14 and 23 April with tickets selling from $444 upwards and attendants in need of bohemian-style costumes. The timing of the suit is thus quite strategic as it will undoubtedly limit the sale of such clothing by Urban. It would be interesting to see how this dispute is resolved.

NINTENDO V. JERAMIE KING & GO CYBER SHOPPING LTD.

Photo: Nintendo of America by camknows

A Federal Court in Canada found in favour of Nintendo of America Inc. in a landmark case against Jeramie King and Go Cyber Shopping Ltd. - his associated business name. It was alleged that the Go Cyber Shopping Ltd. had been selling and distributing circumvention devices which includes "flashcarts, modchips, and game copiers". In addition, the business reportedly offered 'hardware modification services' online and in its store at Waterloo, Ontario. Users of these devices were able "to override Nintendo’s console security, enabling them to download and play illegal copies of video game software" thus infringing on Nintendo’s copyrights and trademarks. (via Nintendo Wire)

According to the finding of the court, the distribution of circumvention devices is illegal based on the novel Canadian Copyright Act’s Anti-Circumvention law.  The Court awarded Nintendo $12.76 million Canadian Dollars against Go Cyber Shopping Ltd., as well as 1 million Canadian Dollars in punitive damages. Although the Respondents had argued that it provided other services different to those alleged, the court held that it failed to provide any supporting evidence of this. The Court also rejected its defences to the circumvention claims and arguments that its modchips afforded users the opportunity to play 'hombrew games' which may be used on Nintendo consoles but which are not owned or licensed by the latter. The Court gave a broad interpretation to circumvention and adopted a restrictive approach to anti-circumvention exceptions such as the interoperability exception under Canadian Copyright Law which it found to be inapplicable due to the infringing activity undertaken by the Respondents. (via Michael Geist)

The Federal Court sitting in Ottawa, Ontario, with The Honourable Mr. Justice Campbell presiding, gave the following reason for the judgement:

"In 2012, Parliament amended the Copyright Act, RSC 1985, c C-42 (the Act) to add prohibitions against circumventing technological protection measures (TPMs) and trafficking in circumvention devices. In doing so, Parliament explicitly recognized the importance of TPMs for protecting copyrighted works, particularly in the video game industry. The present Application engages novel issues arising from this important legislation." The Court further held that "having regard to Parliament’s express intent to give copyright owners the power to control access to works, the principle of technological neutrality, the scheme of the Act, and the plain meaning of the definitions for TPM and “circumvent”, it is clear that access control TPMs do not need to employ any barrier to copying in order to be “effective”.

Reacting to the decision of the Court, Devon Pritchard, General Counsel /Senior VP Business Affairs at Nintendo of America stated:

“Nintendo continues to be a leader in bringing innovative gaming platforms and software to our fans and millions of gamers across the globe… Nintendo has an established track record that demonstrates our resolve to protect our iconic characters and franchises. We will continue to protect the creative works of our developers and vigorously enforce our intellectual property rights against those that attempt to steal or misuse them.” (via Nintendo Wire)

Anti-circumvention provisions date back to the WIPO Copyright Treaty (WCT). Article 11 requires member states to "... provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law." Article 12 further requires contracting parties to "provide adequate and effective legal remedies against any person [who] knowingly... remove[s] or alter[s] any electronic rights management information without permission; [or]... distribute[s], import[s] for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

The Council of Europe also approved the WCT via Decision 2000/278/EC of 16 March 2000 for European Community States and issued Directive 2001/29/EC [1]to prohibit devices for circumventing "technical protection measures". Article 6 provides for 'Obligations as to technological measures' which requires member states to interalia "provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective."

This ruling is a big one for Nintendo and it has put Canada on the map as one of the stricter jurisdictions with regard to prohibiting the circumvention of technological protection measures (TPMs) and also a strict approach towards interpreting digital lock exceptions. This is a good step in the battle against digital piracy and there is likely to be further advancement  in te near future.

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[1] Also known as the Information Society Directive

ANNOUNCING WORLD IP DAY 2017

Photo: World IP Day

On April 26th every year, the World IP day is celebrated with the purpose of "learning the role that intellectual property rights (patents, trademarks, industrial designs, copyright) play in encouraging innovation and creativity."

According to the World Intellectual Property Organisation (WIPO), this year's focus is exploring "how innovation is making our lives healthier, safer, and more comfortable, turning problems into progress." In addition, the organisation highlighted the importance of looking "at how the intellectual property system supports innovation by attracting investment, rewarding creators, encouraging them to develop their ideas, and ensuring that their new knowledge is freely available so that tomorrow’s innovators can build on today’s new technology."

It is the creativity and innovation displayed by people around the world that tackles and solves global issues such as poverty, food availability, health and even climate change. The protection of these innovations by intellectual property rights creates an atmosphere where creativity can thrive and an incentive to encourage more innovation. It also ensures knowledge is shared by attracting investments and inter-territorial cooperation. 

We can all identify at least one way that innovation has changed our lives. Problems are solved by people who think long and hard about creating a solution. From the chair we sit on, to our laptops, mobile phones, light bulbs, cars etc. which are constantly improved on by new technologies; innovation is something that influences everyone around the world. However, depending on location and means, the levels of access to these technologies may vary.

WIPO is asking you to consider the following questions:

• Which innovation has most improved your life?
• What more can be done to make sure new technologies reach the people who need them? 
• What do you think should be the priorities for future innovation?

Join in this discussion by sharing the publicity materials  below on your social media handles using the tag: #worldipday

 

 For more information, see WIPO Website and World IP Day Facebook page.