IP Lawyers’ Busy Year: Boom in VR, AR, IoT

This year is looking like it’ll be another exciting year for technology companies and their IP lawyers. Virtual and augmented reality will become more prevalent.  Home automation fueled by the Internet of Things (IoT) is expected to blow up. Business Insider projects the revenue of virtual and augmented reality to be at $162 Billion by 2020, up from $5.2 in 2016. Forbes predicts that more enterprise businesses will ramp up their efforts to create IoT and voice controlled products. Among all of this, there are some intellectual property considerations for which IP lawyers should be prepared.

Tech-Trademark-2018

Virtual Reality 

How much of your client’s virtual world is modeled on the real world? Think about it. Are there protected rights in the audio visual presentations inside of those goggles? Are real world brands and products being represented? What about likenesses of people? Virtual or not, trademark and copyright laws still need to be considered.

Questions surround what VR platforms should allow their users to do. For example, can their avatars be created in the likeness of celebrities? Or Mickey Mouse or Luke Skywalker? Can they open up shops and sell t-shirts with real-world logos on them? There should be careful consideration into user agreements and the enforcement of the rules. It seems likely, but not certain, that platform owners will be protected from a user’s copyright infringement by the Digital Millennium Copyright Act.

Then there’s content and source code. The person or entity that created the source code will ordinarily have rights to that code. But how much does that cover? What about the content created by the user within the virtual world?  Like any platform or framework for communications and content, the VR systems that grow this year will attempt to define their own rules and stake out their own protections.

Developers and their counsel will need to pay attention to both patent law and copyright law to make sure they are not infringing or copying anyone else’s intellectual property. One great example of that is the Zenimax vs. Occulus law suit in which Facebook ended up shelling out $500 million for IP theft.

Augmented Reality

The legal issues surrounding augmented reality (AR) differ from those in VR. Augmented reality is based in reality. There are no virtual worlds, just layers of virtual reality on top of reality. For AR, one big question is the implications of directing users to interact with a certain brand. Do you need to give companies/brand/third party an opt-out?

What about the use of buildings, monuments, and landmarks?  In Pokemon Go, Niantic was careful to build a database of user generated images for their game. But what if they hadn’t? Under the Copyright Act, buildings constructed before November 30, 1990 are not subject to protection. However, even if the building is protected, the photographer’s exception codified in Section 120(a) of the Copyright Act may apply. There’s also the Digital Millennium Copyright Act (DMCA), which may protect AR software and platform developers in the event that they receive notice of copyright infringement, but seems likely to leave content creators and individual users on the hook for any infringement issues.

Consideration also needs to be made for overlays. Is the overlay a transformative use of an original copyrighted material? Does the app encourage the use of or engagement with protected copyrights in an infringing manner?  What happens if you cover up signage? Does a named sponsor of a building have any rights against third parties (not the building owner) if their name gets covered up or a competitor’s name placed over top of it within an AR view?

The Internet of Things

Gartner predicts that by 202o, there will be 20.4 billion IoT devices in the world. All of that connectivity could get a little dicey when it comes to intellectual property. If your client’s devices need to work with other systems, IP lawyers and their clients will need to work with those manufacturers to comply with the relevant standards and make sure there are no overlapping utility patents.

If one IoT framework becomes prevalent, it could become the backbone of other IoT technologies, with potential infringement happening along the way.

According to IP Watchdog, “For a company in the IoT industry — especially now, when so much is in flux — this means that any other company (even one in a completely different industry) could be infringing your patent. Or on the other hand, you could be infringing another company’s IP without knowing it.”

Technology will always keep IP lawyers on their toes. It’s important to stay on top of potential legal issues both for clients and for future clients.

The Slants Trademark, The Lanham Act, and What it Means

“One man’s vulgarity is another mans lyric” quoth the 1971 U.S. Supreme Court free-speech case.

That 1971 free speech ruling is what came to mind when the U.S. Supreme Court delivered their ruling in Matal v. Tam. This Supreme Court battle was an appeal to reverse the USPTO’s decision to deny the trademark application for the mark “The Slants”. Registration for the Slants trademark was refused by the USPTO for violating the Lanham Act’s disparagement clause. The Supreme Court ruled that ultimately the government may not refuse to register potentially offensive names.

According to Justice Samuel A. Alito Jr., “We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The Supreme Court unanimously declared that the Lanham Act’s disparagement clause was unconstitutional. The clause prohibited the registration of any mark that may “disparage  … or bring … into contemp[t] or disrepute” any person, institution, belief, or national symbol.

Now that the clause has been ruled unconstitutional, there are a lot of questions surrounding what it could mean for future and current trademark applications. In fact, prior to the ruling, a number of trademark applications were suspended by the USPTO pending resolution for this case.

What this ruling could mean

There are several ways this ruling could impact the IP world.

  1. The Redskins will probably be able to get their trademark registrations back.
  2. We might see an up-tick in applications to register rude and crude marks.
  3. The restrictions that have been placed on marijuana related trademarks may be called into question, but seem unlikely to change. Refusal still seems lawful for those marks, since marijuana is still illegal under federal law.

Here’s the bottom line: The Supreme Court is firm on the belief that the government should not decide what is moral, immoral or offensive when it comes to private speech. Restricting trademarks on the basis of government opinion would violate the First Amendment to the U.S. Constitution.

Facebook Files for Drones

Earlier this week, Facebook filed a trademark application with the U.S. Patent and Trademark Office to use the mark FACEBOOK in connection with Unmanned Aerial Vehicles (UAVs).

Drones.

So is Facebook looking to keep up with Amazon in the potential use of drones to deliver physical products?  Or are they working on data-collecting flying machines, as part of Zuck and Company’s ongoing data collection (and leveraging) mission.

The application itself offers a number of clues.  First, it is filed on an Intent to Use basis, meaning that the company is not yet selling any drone-y goods or services under the FACEBOOK mark.

It is filed in trademark International Class 12, which is for physical goods instead or services.  And it identifies the goods to be sold as the vehicles themselves.  All of this together means that the plans are for Facebook to sell drones products branded with its name.

Here is the content of the application, pretty short and sweet:

__________________________________

 

 

Trademark/Service Mark Application, Principal Register

TEAS Plus Application

Serial Number: 86311282
Filing Date: 06/16/2014

 

To the Commissioner for Trademarks:

MARK: FACEBOOK (Standard Characters, see mark)
The literal element of the mark consists of FACEBOOK.
The mark consists of standard characters, without claim to any particular font, style, size, or color.

The applicant, Facebook, Inc., a corporation of Delaware, having an address of 
      1601 Willow Road
      Menlo Park, California 94025
      United States


requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following: 

For specific filing basis information for each item, you must view the display within the Input Table. 
       International Class 012:  Unmanned aerial vehicles (UAVs)
Intent to Use: The applicant has a bona fide intention to use or use through the applicant’s related company or licensee the mark in commerce on or in connection with the identified goods and/or services. (15 U.S.C. Section 1051(b)). 


The applicant claims ownership of U.S. Registration Number(s) 3041791, 3122052, 3881770, and others.


The applicant’s current Attorney Information: 
      Aaron M. Fennimore and John W. Crittenden and Janet L. Cullum, Anne H. Peck, Peter J. Willsey, Brendan J. Hughes, Vincent J. Badolato, Todd S. Bontemps, Morgan A. Champion, Susan Piascik Christoff, Ariana Gallisá Hiscott, Katie Krajeck, Chantal Hwang, Timothy Hance, Thomas Hadid, Rebecca Givner-Ford, Katie Krajeck, Heather Dunn Navarro, John P. Oleksiuk, Kathlyn Querubin, Kathryn Duvall, and Karen K. Won of Cooley LLP
      1299 Pennsylvania Avenue, NW, Suite 700
      Washington, District of Columbia 20004
      United States
The attorney docket/reference number is 309101-20000.

The applicant’s current Correspondence Information:
      Aaron M. Fennimore
      Cooley LLP
      1299 Pennsylvania Avenue, NW, Suite 700
      Washington, District of Columbia 20004
      650-843-5000(phone)
      650-849-7400(fax)
      trademarks@cooley.com;peckah@cooley.com; afennimore@cooley.com (authorized)


A fee payment in the amount of $275 has been submitted with the application, representing payment for 1 class(es). 

Declaration

The signatory believes that: if the applicant is filing the application under 15 U.S.C. Section 1051(a), the applicant is the owner of the trademark/service mark sought to be registered; the applicant or the applicant’s related company or licensee is using the mark in commerce on or in connection with the goods/services in the application, and such use by the applicant’s related company or licensee inures to the benefit of the applicant; the specimen(s) shows the mark as used on or in connection with the goods/services in the application; and/or if the applicant filed an application under 15 U.S.C. Section 1051(b), Section 1126(d), and/or Section 1126(e), the applicant is entitled to use the mark in commerce; the applicant has a bona fide intention to use or use through the applicant’s related company or licensee the mark in commerce on or in connection with the goods/services in the application. The signatory believes that to the best of the signatory’s knowledge and belief, no other person has the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion or mistake, or to deceive. The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. Section 1001, and that such willful false statements and the like may jeopardize the validity of the application or any registration resulting therefrom, declares that all statements made of his/her own knowledge are true and all statements made on information and belief are believed to be true.


Signature: /kathleenejohnston/   Date Signed: 06/16/2014
Signatory’s Name: Kathleen Johnston
Signatory’s Position: Associate General Counsel



RAM Sale Number: 86311282
RAM Accounting Date: 06/17/2014

Serial Number: 86311282
Internet Transmission Date: Mon Jun 16 19:55:01 EDT 2014
TEAS Stamp: USPTO/FTK-173.227.174.10-201406161955018
13591-86311282-5009762d227d390ea38fb5378
88375423a0edb67eeac8a4a644cc6cf19ee12872
-DA-6384-20140616173525295452


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