STRUGGLE AGAINST COUNTERFEITING USING NEW SCANNABLE QR CODES.

CHINESE E-COMMERCE GIANT ALIBABA WILL ENSURE THE PRODUCTS IT SELLS ARE GENUINE USING TECHNOLOGY FROM ISRAELI START-UP VISUALEAD.

Counterfeiting is an ongoing major problem in China and the online marketplace only accentuated its spreading. As a matter of fact, Group Kering, which represents luxury brand like Yves Saint Laurent, Gucci or Balenciaga, filed a lawsuit in New York on the grounds that Alibaba is fully aware that counterfeit goods are being sold and it helps out to mislead costumers. The Hangzhou-based company is becoming a routine target for lawsuits alleging it facilitates fakes being sold knowingly while, in fact, it is claiming for cooperation instead of conflicting. Recently, Ni Lang, head of Internet security, gave a chance to the brands to cooperate with Alibaba instead of suing them, to cut down on counterfeits.

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Picture taken from WIRED.

The also so-called “Chinese Amazon” is launching through partnerships a new range of QR-like codes to battle counterfeit goods. QR (Quick Response) codes are symbols hard to copy and puzzle-like bar codes that can be scanned and read by a smartphone camera or other special software. So far, we have used this QR codes as “shortcuts” to reach websites  automatically and now, they are moving to an instant reply with which enables us to check the authenticity of the product.

Even if it is true that, apparently, retailers and trademark right holders will not be empowered by the referred technology to chase counterfeiters, is yet to be seen whether this alternative will success among costumers. For now, Alibaba is allowing, through its partnerships, the free use of this tool (called Blue Stars) and leading brands as L’Óreal and the chocolatier Ferrero started using these codes and created millions of unique Dotless Visual Codes to be printed in their product packages.

Alibaba’s solution is a firm commitment to innovation on counterfeit detection. These vibrant tracking codes, created by Visualed, are way different from the outdated traditional QR-Codes. Features included are the possibility to superimpose an image over the checkerboard, the scannable codes are dotless and the images are more clear and colourful. Thus, brands are able to embed their logos into the symbol code and make it more visually attractive to costumers by choosing among a great number of templates.

In this way, sellers will be able to create single and secure codes for each individual item and affix it on its label or package. Once the costumer has downloaded the shopping app of Taobao (one of the group’s e-commerce sites), it will just be necessary to scan the code and instantly, a virtual certificate will be displayed on the mobile screen to check its authenticity. What is more, the code can only be scanned once, which assures the costumer that the product that he is buying is genuine.

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Picture taken from TECH IN ASIA.

Alva Nevo, Visualed’s CEO, said that the partnership between Alibaba and Visualead could eventually lead to the codes being used for social networking, mobile payments or ticketing. Notwithstanding the cutting edge technologies, the design must include the proper elements of QR codes, the traditional programming rules and ensuring the camera will catch and read the code correctly.

The best-case scenario is that this new technology makes the brands entrust Alibaba the selling of their products, since the Chinese company invested millions in curbing counterfeiting. Moreover, Alibaba enjoyed a massive IPO last year in which it has seen shares slide significantly and the analysts are pointing counterfeiting as the primary concern.

See how the technology works here.

Josep Magraner Llobera

“FAIR USE” or “FREE-RIDING”?

eco-energy-concept-5231878“Fair use” is not the newest concept, at least, not for the common law. This concept has been used by the Courts in the US as a judicial criterion or also, as a legal doctrine, to decide whether a certain use of a copyrighted material constitutes an infringement of the right granted to the holder of such material, or otherwise is a “fair use” and consequently, it is permitted.

Whereas several countries like the US, South Korea, Canada or Israel incorporate similar legal terms to allow the use, as an exception, of copyrighted material for different purposes, other countries reject to recognize this doctrine and continue to require the payment of royalties or the the authorisation of the right holder.

fair use logo
“Fair use” logotype.

For the convenience of the reader, let’s clarify what this legal concept stands for. Fair use, or also the so-called fair dealing, allows third persons to use copyrighted material under certain conditions. The most important feature of the doctrine, is the absence of consent by the right holder for the use of its protected material, either the exemption of paying a fee or royalty. Besides, to determine the “fair use” of a protected material by the courts, a set of criteria shall be taken into consideration. This set of criteria comprises four factors that shall be considered together and examined case-by-case, since “fair use” is not an straightforward concept. However, before analysing the occurrence of the four factors, a prior underlying premise shall be a assumed, which is the use of the material for <comment, news reporting, criticism, education, scholarship or research>. If the use of the copyrighted material doesn’t meet the previous premise, the use will not be considered as “fair”.

Turning now to the four factors that shall be considered to allow the “fair use”, the Section 107-Copyright Act of the US (17 U.S.C) lays down the factors listed below:

1.-The purpose and character of the use, including whether it is for commercial use or for nonprofit educational purposes.
2.-The nature of the copyrighted work.
3.-The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4.-The effect of the use upon the potential market for or value of the copyrighted work.

Notwithstanding the set of criteria laid down under the US law, the Berne Convention, and also, the WIPO Copyright Treaty (Article 10) decided to implement the three-step test to national lawmakers who want to establish limitations and exceptions to the rights of the copyright holders. The threestep test states that -it shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with the normal exploitation of the work and doest not unreasonably prejudice the legitimate interests of the author-. So here we have another criteria to apply for “fair use” since it is a limitation and an exception to the rights granted to the authors.

Conversely, the continental European law. Under the continental law regulations there is not a “fair use” clause, but instead an exhaustive list of limitations and exceptions. Therefore, the use of the copyrighted material that doesn’t meet any of the assumptions will be suitable to entitle the right holder to claim for a compensation or the payment of a royalty or a fee.

Josep Magraner Llobera

FIRST AID AFTER THE PATENT EXPIRY: the SPC.

Processed with VSCOcam with t1 presetIt has often been said that the protection term of a patent lasts twenty years. Precisely, this period of time must be counted from the filing date of the application before the relevant national Office. As will be highlighted below, the processing of the resolution of the marketing authorisation by the health authorities reduce the effective term of protection.

Having in regard the high costs and investment that must be put into the research and the estimated time remaining after the marketing authorisation, the patent holders are allowed to apply for a supplementary protection certificate (hereinafter referred as “SPC”). The SPC can be granted to holders of expired patents on pharmaceutical or medicinal products (Regulation (EC) No 469/2009 of the European Parliament and of the Council, concerning the supplementary protection certificate for medicinal products) and on plant protection products (Regulation (EC) No 1610 of the European Parliament and of the Council, concerning the creation of a supplementary protection certificate for plant protection products). Many applicants, largely from the pharmaceutical industry, see their expectations about the protection period of their inventions being somehow frustrated by the length of time it takes to the health authorities to grant the marketing authorisation (twelve months on average). Thus, by way of compensation, the regulations mentioned above help out to bridge the time gap by extending the effects of the patent for five more years after the expiry date.

According to the law, an SPC confers to the expired patent holder not only the same rights, but also the scope of protection reaches the pharmaceutical and plant protection products that the basic patent previously protected.

Besides, to apply for a SPC a fulfilment of several requirements is needed. In the first place, and also the most relevant, the products protected by the basic patent must have received, on beforehand, the marketing authorisation, as well as authorisation for any use of the product while the SPC is in effect. In addition, is not possible to obtain a SCP wether a prior SCP has been already granted.

Last but not least, the application for an SPC shall be lodged within six months of the date on which the authorisation to place the product on the market was granted. However, if the market authorisation has been granted before the basic patent, the application shall be lodged within six months of the date on which the patent is granted.

Josep Magraner Llobera

LINK, DEEP LINK & FRAME (+ING).

work-station-straight-on-viewAs soon as new web technologies enabled users to get public access to others web pages or proprietary media content, a bunch of legal issues, considered law infringements, came up and the affected initiated to seek legal advice and wondered how to bring the perpetrators to justice. Thus, the media content proprietors sued under the copyright law those who were creating and distributing information of others through these new mechanisms so-called linking, deep linking, framing and so on.

Hence it is necessary to clear up the following conducts considered as copyright law infringements and explain the reason behind.

Linking. An HTML code as is shown below:

https://ipaholics.wordpress.com/2015/03/13/hola-mundo/

The HTML code for the hyperlink showed above will redirect to my first article of my blog and will skip its home-page. My last article was about trademark registration, so the link in others web page or on an Internet browser would be displayed as it follows:

PROTECT YOUR TRADEMARK, USE FAST TRACK!

Then, clicking on the link above from others’s web page or Internet browser, the user will be redirected to the concrete content shown on the link (it facilitates somehow the research of detailed information).

Deep Linking. Last behaviour it also was deep linking, so clicking the link the user jumps directly to the internal page, to the related content, bypassing the home or introductory page. Otherwise, the user should seek the needed information into the target web page.

As many web site owners use them for business, advertising or banners may be displayed on the home page, so foregoing behaviours obstruct financial compensation from advertising companies and frustrate income.

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Hey you, stop framing!

Framing. The third behaviour is called this way because a web site makes contents of other web sites viewable, breaking the screen displayed in several non-overlapping “frames” that can change the first or original appearance of the framed web page and can lead the user to the latter page clicking on the link. They thereby open up the possibility to resort to HTML files to be automatically hyperlinked to target web pages.

Therefore, the incorporation of contents of a copyrighted web site by using frames can also constitute distribution or reproduction of copies which is critical by those who hold the existence of copyright law infringement. On the contrary, it is held that there is no copyright infringement by deep linking or framing a web page protected by copyright because the content protected by the latter is not stored on server of who is linking and framing but at its proprietor server.

In a different way, the conducts explained above are also susceptible to be classified as trademark infringement –when an other use of a trademark on a link is likely to confuse consumers as to the origin of the products and services (they could believe that the linked page is associated with or endorses the wrongdoer).

Also, the easiest solution to skip these legal issues is the most basic: ask for permission and get an agreement. 

Josep Magraner Llobera

PROTECT YOUR TRADEMARK, USE FAST TRACK!

146H

The first applicant takes it all.

Since November 2014, the Office for Harmonization in the Internal Market offers a quicker procedure for trademark applicants who require a faster publication of their applications. In spite of the fact that the term between the opposition period and the publication of the registered mark has not changed, the aim of this brand new option is to save time through a faster examination period.

Let us not delude ourselves, this system is clearly devised for straightforward examinations, so complex applications shall not be admissible for they will take longer time for the OHIM to examine them. In any case, the Office ensures achieving its purposes to provide an easier way to its applicants by laying down a full set of conditions to be accomplished before accepting any Fast Track applications. Among the most significant conditions, the prohibition of both priority and seniority claims (under certain exceptions), the mandatory selection of goods and services from a database already accepted by OHIM or the impossibility of adding trademark description or disclaimer.

Regarding payment fees, the applicant should pay upfront, so the Office’ staff will only start processing the application once the fees payment has been made.

In addition, the Office accepts all these trademarks types: word mark, figurative mark, three-dimensional or sound. However, should a figurative or three-dimensional mark be applied for and a colour claimed, the latter will only be chosen from those specified in the form, but no custom colour may be claimed (i.e PANTONE Color series).

Josep Magraner Llobera