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Legal Perspective: Australia and U.S. Film Markets – To Subsidize or Not?

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Jose Landivar, Arther Law’s Industry Insider Blog

Quick, someone tell me how the Australian film industry works and what involvement the government has in funding films and subsidizing its burgeoning film industry? Any takers? Good, then this article is for you.

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Legal Perspective: Twitter IPO…Bull Market or Just “Bull”?

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In case you were living under a rock or simply ignore financial news, you might have heard that Twitter made its long-awaited and much hyped debut on the New York Stock Exchange (NYSE) last Thursday. The micro-blogging company responsible for introducing the “#hashtag” phenomena to the English lexicon and creating the dreaded celebrity Tweeting wars raised over $1.6 billion USD over one trading day as its shares jumped from its initial offering price of $26 per share to nearly $50 per share at its intraday highs, finally settling at $44.90 per share at the closing bell.[1] The phenomenal performance of the Twitter IPO recalled the heady days of the dotcom bubble of the late 1990s and almost made weary investors forget about Facebook’s faulty IPO last year. Read More…

No Safe Harbor for Vimeo on Capital Records’ Lip Synch Lawsuit

by Jose Landivar, Arther Law’s Industry Insider

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Online video-sharing service Vimeo failed in its efforts last Wednesday to dismiss Capitol Records’ copyright suit over user-generated lip-sync videos of artists such as Radiohead and the Beatles, when a federal judge ruled that some of the videos might not qualify for safe-harbor protection and that a factual issue was presented on the grounds that the company should have known about the alleged infringement simply because its employees uploaded and commented on some of the videos. Read More…

Twitter IPO, In Under 140 Characters: Thank You #JobsAct

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#IPO. #JOBSActThanks

This could’ve been a social media reference to Twitter’s announcement on Thursday afternoon that it was filing confidential paperwork with the SEC to begin the process for its highly anticipated and widely speculated public offering.

The timing and secrecy surrounding Twitter’s announcement is widely believed to have been executed at this time in order to maximize the advantage offered by new regulations passed under 2012’s JOBS (Jumpstart Our Business Startups) Act, which for the first time allowed certain companies to initially file IPO paperwork confidentially with SEC regulators.

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U.S. Supreme Court: Human DNA Cannot be Patented. (Association for Molecular Pathology v. Myriad Genetics, U.S. Supreme Court, No. 12-398.)

On June 13, the US Supreme Court unanimously held that naturally occurring human genes cannot receive patent protection.  The ruling served as a partial victory for science and biotechnology as the field fought to gain protection for the genes.

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Juicy Couture Unable to Block Hong Kong Website’s Counterfeit Goods

By: Amelia Wong

On March 12, 2013, a New York federal judge held that the Court did not have jurisdiction over the foreign entity Bella International Ltd. (Bella), a Hong Kong-based retailer, to ban Bella from selling alleged counterfeit Juicy Couture Inc. (Juicy) items on its Hong Kong website. The Court’s rationale was that Bella did not have enough ties to the United States for the Court to have jurisdiction over Bella.

Juicy first filed the Hong Kong suit against Bella in 2008, alleging trademark infringement because Bella sold “Juicy Girl” clothing and accessories. Juicy brought the U.S. action in July 2012 alleging that Bella violated U.S. and New York law by selling $3000 worth of Juicy Girl to U.S. consumers, some of which were Juicy Couture’s investigators.

Juicy sought an injunction to enjoin Bella from counterfeiting and infringing the Juicy mark. While Juicy was successful in obtaining a preliminary injunction to enjoin Bella from selling the goods to U.S. customers, the Court declined to exercise extraterritorial judgment over Bella’s foreign activities. The Court found that infringement was likely to exist because of the public recognition and strength of the Juicy mark. Additionally, the Court declined to exercise extraterritorial judgment because Bella’s activities in the U.S. were not enough to give an American court jurisdiction. The website only sold $3000 worth of merchandise to U.S. customers and U.S. customers were not its biggest target.

Judge Ronnie Abrams stated, “The strength of the plaintiff’s marks, similarities of parties marks and competitive proximity…all strongly favor the plaintiff…However, the court concludes that the Lanham Act should not be applied extraterritorially…to any other websites hosted abroad.”[1] Judge Abrams further stated that the Hong Kong action would determine whether the Juicy Girl mark was enforceable in Hong Kong.

Juicy’s representative was pleased that the court recognized Juicy’s trademark and believed it was a good direction. Juicy is currently taking action against defendants in Hong Kong and Canada, believing that the Court’s trademark recognition would play a strong role in future cases.

Judge Abram’s decision is significant because she refused to apply the Lanham Act to a foreign company and left it up to the Hong Kong courts to decide. This could be viewed as a weakness because “Juicy Girl” items are still available on .hk websites. If trademark infringing items are allowed to be sold on international websites, U.S. consumers can still access these websites and purchase the items through E-commerce. Due to the fast-paced nature of technology and E-commerce, Judge Abram’s decision could instead be seen as a setback to trademark protection.

Smartphone Wars

In what could be a new blow to ailing smart-phone maker Research-in-Motion, Nokia Corp. has announced that it has filed a lawsuit against the renowned Blackberry manufacturer for allegedly breaching a patent licensing agreement.

Nokia bases its claims on a patent licensing agreement with RIM. The dispute arose out of the scope of the licensing agreement: Nokia claiming that it covers patents for GSM, WCDMA and CDMA2000 technologies, while RIM states that the license also covers WLAN technology.

The suit comes on the heels of an arbitration held in Stockholm, Sweden whereby, according to Nokia spokesman Mark Durrant, RIM was found to have breached the contract at issue. The legal action pending in the United States seeks to enforce the Stockholm arbitral award.

It is unclear whether RIM will move the court to set aside the arbitral award. Arbitral awards are most often enforced in American courts and are notoriously difficult to set aside. The current law governing the enforcement of arbitral awards, the Federal Arbitration Act, seriously limits judges’ abilities to look behind the ruling of an award and only allows courts to overrule arbitration panels on certain limited and enumerated grounds. For example, RIM would have to prove that an arbitrator was impartial and therefore jeopardized the fairness of the proceeding.

Since May, Nokia has also been battling RIM in both US and German courts, claiming that RIM and HTC and ViewSonic have infringed a number of its patents.