PROTECT YOUR BRIGHT IDEAS

Trademarks, Copyrights & Business Law

Author: DCBakerEsq (page 1 of 45)

LEGISLATION UPDATE. New California Law Protects National Park Trademarks

As we reported last year, the National Park Service suffered an odd embarrassment when it was forced to acknowledge that it may have unwittingly frittered away some valuable trademarks associated with the Yosemite National Park.

The popular park had to change the names of several iconic sites due to trademark concerns after awarding a $2 billion federal contract to a new concessionaire.  For example, the Ahwahnee Hotel, built in 1927, became the Majestic Yosemite Hotel in  March of this year when Aramark took it over from DNC Parks & Resorts.  Curry Village, which has borne that name since it opened in 1899, was renamed Half Dome Village, Badger Pass Ski Area, which became California’s first ski resort in the 1930s, was renamed the Yosemite Ski & Snowboard Area and Yosemite Lodge at the Falls was renamed Yosemite Valley Lodge.  The Wawona Hotel will become Big Trees Lodge.

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Luckily, the Park drew the line at the previous concessionaire’s trademark claim to “Yosemite National Park.”

The names were changed to eliminate potential trademark issues with DNC, which lost a $2 billion bid last year to renew its contract. The new contract was granted instead to a subsidiary of Aramark.

In an attempt to avoid similar trademark disasters in the future, Californian has taken the unusual step of legislating around the problem.  As  Michael A Grow of Arent Fox LLP reported in a post entitled California Heritage Protection Act,

On September 21 2016 California adopted a new law that prohibits California State Parks from granting trademark or service mark rights in park names or names associated with historical, cultural or recreational resources to any businesses operating within the parks. As of January 1 2017, any contract that violates this provision will be deemed unenforceable under California law.

This law grew out of a recent contract dispute involving federally owned Yosemite National Park, which is located in the Sierra Nevada Mountains east of San Francisco, California. For many years, privately owned DNC Parks and Resorts of Yosemite Inc provided lodging, restaurant and other services to park visitors under a contract with the National Park Service (NPS). In 2015, however, the NPS sought new bids and awarded a 15-year contract allowing Yosemite Hospitality Inc, a subsidiary of Aramark Corporation, to replace DNC as the provider of the services. DNC then filed Civil Action 15-1034C in the US Court of Claims, accusing the US government of breach of contract and contending that it was entitled to compensation for various trademarks and other intellectual property it had been forced to buy as a precondition to operating as a concessionaire in Yosemite.

According to DNC, it had been compelled by the US government to purchase certain trademarks and service marks formerly owned by Curry Company in 1993. Curry had operated concessions in Yosemite under these marks for more than a century. Among these were the federally registered marks THE AHWAHNEE, CURRY VILLAGE and WAHWONA, all of which were used for hotel or lodging services, and BADGER PASS used for a ski resort. DNC claimed that it had been required to pay $61.5 million (equivalent to $115 million today) for the marks and that NPS was now contractually obligated to require Aramark to purchase them from DNC.

The amount requested by DNC for the intellectual property was $51.2 million. Although most trademarks used continuously over a significant period of time appreciate in value, the NPS refused to comply with this demand, accused DNC of refusing to negotiate and claimed that the value of the marks was closer to $1.6 million. As a further measure, the US Department of the Interior filed petitions to cancel DNC’s registrations on false suggestion of connection and abandonment grounds.

In the midst of the dispute, DNC sent Aramark a letter stating that if it used DNC’s federally registered trademarks without paying for them, it would be liable for trademark infringement. However, DNC offered to let NPS maintain the names during the pendency of the lawsuit. Perhaps to bolster its abandonment claims, the NPS has taken down signs bearing the DNC marks and new names are now being used. For example, the Ahwahnee Hotel is now operating under the name Majestic Yellowstone Hotel.

The NPS actually owns the land and buildings operated under the marks. However, the NPS has never claimed that it owns the DNC’s registered marks, which have been used openly and without objection for decades. Similarly, NPS never licensed DNC or any prior owner to use the marks nor has it ever offered or sold any goods or services under the mark. Thus, the marks identify and distinguish the goods and services of DNC, not the government.

For the rest of the story, check out No more trademark giveaways

Rubik’s Cube serves up a new conundrum

While I enjoy puzzles as much as the next guy, I was never very good at solving the unique puzzle of the Rubik’s Cube.   With its six brightly colored sides and deceptively simple design, anyone who ahs ever picked up one of these frustrating monstrosities has realized the demented brilliance of the inventor in creating something so easily solved by some and never understood by others (myself included).  On my bets days, I’ve been able to complete a few sides only to be baffled by why the other sides didn’t fall into conformity.  How can a player complete the yellow side while leaving all the others a jumbled mess?

Admittedly, it’s beyond my ken.

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However, there recently was a new wrinkle in the legend of the Rubik’s Cube as it trademark protection was called into question.  Earlier this month, the European Court of Justice decided whether or not to uphold the three-dimensional trademark regarding the well-known Rubik’s Cube.  Writing for Mackrell Turner Garrett, Maung Aye explains what happened in a post captioned “Rubik’s Cube’s shape will no longer be protected by registered trademark.”

The Rubik’s Cube was invented by the Hungarian Erno Rubik in 1974. It has been very popular throughout the years all over the world. According to the Rubik’s Cube’s website since the international launch in 1980 about 400 million cubes have been sold worldwide.

The challenging lawsuit was brought forward by the German company Simba Toys who claimed that the right way to protect the Rubik’s Cube features was a patent rather than a trademark. A trademark grants the owner exclusive rights to registered designs, while patents only protect inventions for a certain period of time.

The trademark registered to protect the Rubik’s Cube referred to its shape. Simba Toys pointed out that not the shape but the mechanism was crucial to the Rubik’s Cube, which leads to the conclusion of a patent being the more suitable way of protection. Simba already challenged the trademark in 2006 but the European Intellectual Property Office as well as the General Court dismissed the lawsuit. Only now, 10 years after initially filing the claim, the European Court of Justice, located in Luxembourg, agreed with Simba Toys’ reasoning and ruled that the Rubik’s Cube’s shape is not eligible for trademark protection but should rather be protected by patent.

The ECJ judges ruled: “In examining whether registration ought to be refused on the ground that shape involved a technical solution, EUIPO and the General Court should also have taken into account non-visible functional elements represented by that shape, such as its rotating capability.” The outcome of the judgement thereby made it impossible to use a registered trademark for a technical functionality as a way of granting a monopoly for that specific product in favour of the trademark’s owner. This has already been a principle in IP law but was strongly underlined by the European Court of Justice’s decision.

For the rest of the story, check out Trademarks can be puzzling

 

Is US Trademark Litigation Drying Up?

With California and New York federal courts seeing the fewest trademark filings in a decade, some IP attorneys have expressed concern that competition for the best clients and cases is likely to heat up in 2017.

As Trevor Little sees it in his article for World Trademark Review entitled “US trademark litigation filings on course for 16-year low,” American corporate teams most likely have adopted a much more conservative approach to protecting their IP than in years past.

The latest available data from Lex Machina estimates that 3,529 trademark litigation suits will be filed in the United States in 2016. If so, the level of filings will be the lowest since 2001. For law firms, competition for the trademark litigation dollar seems set to intensify.

This week on our sister title, IAM, Richard Lloyd reported that the latest estimates from Lex Machina suggest that US patent lawsuits are set to drop dramatically in 2016. He noted that, if that prediction is accurate then it would mean that patent litigation will be at a level not seen since 2011. Similarly, copyright cases are expected to drop to 2013 levels, after six years of consecutive rises. The picture for trademarks is more marked.

In May, Lex Machina’s Trademark Report 2015 found that trademark litigation appeared to be on the slide, with 795 cases filed in the first quarter of this year– the lowest since the start of 2009 and down almost 10% on the same quarter last year. That figure has subsequently risen a little (832 are now reported for Q1), but it still represents a significant drop.

This downward trend is expected to be reflected in the total number of filings across the year. In the year to date, 3,130 trademark litigation cases have been filed – compared to 3,276 in the comparative period in 2015 and 4,051 in 2014. Based on filing trends and data, Lex Machina further estimates that, by year end, 3,529 trademark cases will have been filed.  If that prediction is filed, it will represent a 16-year low.

For the rest of the story, check out Where have all the lawsuits gone?

My Little Lawsuit

Hasbro, maker of all things My Little Pony-related (and many other well-known toys),  is no the stranger to intellectual property disputes or to the American judicial system.  Earlier this year, the company got into a spat with a toy designer over copyright claims and then just last month was named in a lawsuit by Turkey-based Peak Games for allegedly infringing one of its popular mobile phone apps.

Frequent IPWatchdog contributor Steve Brachman explains the dispute in an article entitled “Hasbro faces copyright infringement claim over My Little Pony gaming app,”

American toy and board game developer Hasbro Inc. (NASDAQ:HB) , owners of the My Little Pony franchise and many other recognizable properties, has been making a push to get into the rapidly growing and lucrative mobile gaming market. In 2013, Hasbro invested $112 million into mobile game developer Backflip Studios. This August, news reports indicated that Hasbro was working with a San Francisco-based mobile game developer to create a massively multiplayer game based on Hasbro’s Transformers entertainment property, which will be released sometime in 2017.

Unfortunately for Hasbro, not all of its activities in the mobile gaming business have been completely original, leaving the game developer open to legal challenges. In late October, it was reported that Hasbro was named as a defendant in a copyright infringement action filed by Turkey-based gaming developer Peak Games in the San Francisco courthouse of the U.S. District Court for the Northern District of California (N.D. Cal.).

At the center of Peak Games’ complaint is Hasbro’s My Little Pony: Puzzle Party mobile game app, which Peak Games alleges is essentially a clone of that firm’s Toy Blast game. According to screenshots culled from the complaint by VentureBeat, both games provide players with a cross-like game board composed of blocks of various colors. The complaint alleges that Hasbro’s copying of Toy Blast is thorough, right to a step-by-step reprinting of the game’s tutorial.

Peak Games has good reason to protect its intellectual property related to Toy Blast as the game has enjoyed a good deal of popularity among mobile device users. As of November 8th, Toy Blast was ranked fifth among free gaming apps available on the Google Play store. Overall, games developed by Peak Games have been downloaded 275 million times and the company enjoys 29 million monthly active users according to VentureBeat.

For the rest of the story, check out Pony Litigation

So, Who Said America Wasn’t Great?

Donald Trump may be President-elect of the United States, but when he ran on the slogan “Make America Great Again” it was also based on the assumption that America had once been great and then become something less than great.  I’m not certain that all Americans would agree with this broad assessment.

Nevertheless, consultant Joseph Allen posited in a recent piece on IPWatchDog that it might be American innovation that was lagging and could use an infusion of greatness in an article entitled “Make American Innovation Great Again.”

Like many others, I expected to go to bed last Tuesday night to jubilant proclamations by the media that their anointed candidate was the newly elected President of the United States of America. But something unexpected happened on the way to the coronation: blue collar men and women from the heartland arose and overthrew the political class. Government by transnational elites was said to be the inevitable wave of the future but it shattered against a wall of voters in the United Kingdom and the United States where commoners standing up to those presuming to determine their futures for them has a long tradition. They said “No thanks” (actually their sentiments would more accurately be captured in a two word phrase inappropriate for printing here).

One of the collateral casualties of last week’s revolution is the effort to bring our life science industry under UN control and to overturn the Bayh-Dole Act, putting bureaucrats in charge of setting “reasonable prices” for products arising from government funded R&D. You can also write off the associated idea of “delinking” research from markets by having the government take over drug development. Like chickens with their heads cut off, those advocating these positions will flail around for a while but their time is past– for now. However, they will not go away. Rather they will bide their time hoping that the public will accept management of the economy by global elites if the new Administration and Congress fail to deliver on their promises.

The Trump Administration (how odd it feels to write that) and the Republican led Congress have a mandate to get this economy moving again and if they want to maintain power they better produce results fast. To jumpstart the economy we need more than infrastructure projects (seems like we heard about those elusive “shovel ready jobs” somewhere before) — we need to reignite the fire of American innovation. One of the brakes on our prosperity has been the deliberate undermining of the patent system. This was not imposed by some malevolent foreign power but by internal forces which didn’t want to be bothered by pesky patent owners objecting to having their property being taken by their betters. While American innovation manages to lead the world despite a malfunctioning patent system, imagine what we would do if the intellectual property rights of our inventors were protected as the Founding Fathers intended.

It’s a fundamental principal of economics that the secure ownership of personal property is essential for prosperity. Walk through any public park and see how seldomly people bother to pick up trash thrown so thoughtlessly about by a few. But if someone throws trash on your lawn, it will quickly be made clear that this nonsense better stop, including calling the police if necessary. But what happens when the police won’t protect the rights of homeowners? Neighborhoods deteriorate, crime flourishes and investors move their money to other markets. That’s what’s happening to patent owners as “effective infringement” becomes an accepted business practice. However, we’ve been down this road before and have a good roadmap of the way out.

When President Reagan was unexpectedly swept to power, he faced a similar situation. The Bayh-Dole Act had just been passed and some bureaucrats were quietly working to smother the law in the crib because it threatened their power. The essence of Bayh-Dole is decentralizing the management of inventions made with federal R&D out of Washington and into the hands of those doing the research. That idea ran squarely against the competing idea of the time– that we should adopt a version of Japan, Inc. where government planners working with dominant companies plotted the economic future. We heard how much more sophisticated that was than relying on markets and competition. One attractive feature of this model to those on the inside track is that it allows the wielders of political power to reward companies that support them with contracts and other lucrative favors. They also get to punish their enemies.

For the rest of the story, check out Great America

 

Trademark Infringement and Attorney’s Fees – What’s the Deal?

As a trademark attorney, clients often ask about how they can get “the other side” to pay for the cost of litigating the enforcements of their trademarks in a trademark infringement lawsuit.  Of course, most of hem have little or no knowledge about how and when attorney’s fees can be awarded in U.S. litigation let alone litigation involving trademarks and it is a bit tortured to have to explain how and why the bar is set so high.

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In an article entitled, “The 9th Circuit Injects Some “Octane” into the Lanham Act Attorneys’ Fee Provision” the good attorneys over at Dorsey & Whitney LP recently reported on a 9th Circuit Court of Appeals case that may have ramped up the possibility of attorney’s fee awards in such cases,

In the immortal words of the most recent Nobel Laureate in literature, “the times they are a changin.’” Section 35(a) of the Lanham Act provides that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” Until just last week, the Ninth Circuit had historically interpreted that provision to mean that a plaintiff must prove that the defendant engaged in “malicious, fraudulent, deliberate or willful” infringement. Further, the Court reviewed fee awards de novo, instead of for an abuse of discretion. That test for an award of fees and the de novo standard of review are now officially blowin’ in the wind, compliments of the Ninth Circuit’s en banc decision in Sunearth, Inc. v. Sun Earth Solar Power, Co. Thus, successful litigants in Lanham Act cases in the Ninth Circuit should now find it a bit easier to recover an award of attorneys’ fees.

This all came about as a result of the U.S. Supreme Court’s 2014 decision in Octane Fitness, LLC v. Icon Health and Fitness, Inc. In that case, the Court interpreted the identical “exceptional cases” language from the Patent Act’s attorneys’ fee provision, 35 U.S.C. § 285. The Court rejected the notion that “exceptional” required a showing of bad faith or other culpable conduct before fees could be awarded in patent cases. Instead, the Court held that “exceptional” simply meant “uncommon,” “rare,” or “not ordinary.” Accordingly, an exceptional case is “simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” The Court also rejected the heightened “clear and convincing” burden of proof, in favor of a preponderance of the evidence standard.

On the same day the Supreme Court handed down its decision in Octane Fitness, it also decided that a district court’s award of fees under the Patent Act should be reviewed for abuse of discretion. Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748–49 (2014).

For the rest of the story, check out Attorney’s Fees in the 9th Circuit

Starbucks and the Social Responsibility Conundrum

By Tristan Baker (Junior, University of Texas at Austin)

What happens when a highly successful, widely known, and socially responsible coffee company closely adheres to one set of CSR standards only to be criticized for not committing to a competing set of even loftier standards? Starbucks found out the hard way.

Starbucks and Competing NGO Standards

Starbucks is a firm born out of the late 20th century that created a distinct role for itself in the global coffee market through the production and sale of high quality, specialty coffee and coffee drinks. Even from its early years, Starbucks has projected itself as a firm that has a commitment to a high quality product, workplace, and worldly impact. While competitors largely ignored CSR initiatives until years later, Starbucks had established a CSR department in the early 1990’s and tasked it with carefully establishing responsible corporate standards in line with sustainability and other increasingly popular public policies.

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Starbucks’ rapid growth and dominance in the coffee-service industry meant that it was a major player in setting precedents for the coffee industry and ranging from harvest to the sale of finished product. Starbucks primarily procured its beans from small and medium-size farms and purchased about 1% of the world’s coffee supply at a price substantially higher than the going market rate. ($1.20 per lb compared to market average of $.48 per lb). Of course, its high profile made Starbucks an easy target for NGO and watchdog efforts as in the case of Conservation International (CI).

CI is a non-profit organization focused on the conservation and preservation of biologically diverse regions of Earth. In [YEAR?], it identified coffee as an important commodity affecting biodiversity and launched a Conservation Coffee Program in Mexico on a relatively small scale. Eventually, CI approached Starbucks and the two established core principles for social responsibility in the coffee trade.  Starbucks even committed roughly $1,000,000 in funding and additional resources to develop sourcing guides for Mexican coffee farmers.  The partnership was successful in providing Starbucks with high-quality coffee while increasing income for many small scale farmers and encouraging shade-grown coffee practices which are less detrimental to the environment. Starbuck’s work with CI highlighted their commitment to CSR initiatives and their ability to be both socially responsible and profitable.

However, new, much more complicated pressure was placed on Starbucks with the dawn of so-called Fair Trade Coffee movement in [YEAR?]. While Starbucks showed willingness to utilize fair trade coffee, problems arose in maintaining the company’s high quality standards and TransFair, the NGO lobbying for the new standards, was unwilling compromise by promoting better quality among fair trade growers. Not surprisingly, loyal Starbucks consumers loved the fair trade practices, but were disappointed by the coffee.

How Starbucks Met the Challenge

Starbuck’s dilemma is emblematic of the inevitable tension between the profit incentive and external pressure for social responsibility. It also highlights the challenges of dealing with aggressive NGO’s and activist groups seeking to exert influence of corporations. It is well-accepted that Howard Schultz founded Starbucks with the admirable goal of being both a successful business as well as an ethically sound place to work. Guided not just by altruism, Schultz realized that consumers favor businesses perceived to be “good corporate citizens,” but he was savvy enough to understand there has to be a balance. Few, if any, companies can survive based purely on social responsibility.

While it is clear that that Starbucks recognizes the value of minimizing adverse environmental impact through activist partnerships. To date, they have avoided blind adherence to third party standards that may threaten core values and branding. The challenge with Conservation International was to work towards correcting negative externalities of coffee production by reducing information asymmetries among coffee growers in South America. Ultimately, Starbucks met this challenge through cooperation with CI. And by so doing, Starbucks garnered valuable PR and an enhanced role as an influential industry leader, particularly in the minds of its consumer base.  Of course, CI also benefitted from its collaboration with Starbucks by gaining credibility, funding, and exposure.  Together, Starbucks and CI can now point to their successful collaboration as a model for other companies and NGO’s.

In contrast, the relationship between Starbucks and TransFair is demonstrative of the problems that arise when an NGO is unwilling to consider hard corporate realities such as market restraints and the difficult choices that must be made to adhere to corporate policies and mission statements.  While Starbucks is willing to listen to activist groups and environmentalists about potential harms caused by suppliers, there are concrete limits to their willingness to dramatically shift course purely for the sake of social good. Undoubtedly, CSR is important to Starbucks, but TransFair and the fair trade coffee movement refused to compromise or allow for a viable Plan B. While CI was willing to collaborate and find the solution that best satisfies the needs of the market and enacts the most social good, TransFair was uncooperative and dogmatic, refusing to accept that the vaunted new standards could prove injurious to the Starbucks brand and, eventually, the bottom line.

Next Steps

Unfortunately for TransFair and the FTC Movement, there seems to be little opportunity for expansion unless there is a fundamental change from within. Antagonism and public derision rarely lead to successful partnerships. It would be a strategic error for Starbucks to jeopardize coffee quality standards (and resulting sales) for the sake of FTC appeasement and this dooms the stated FTC goal of improving social conditions among coffee farmers. If anything, Starbucks may acknowledge FTC in a largely perfunctory manner by purchasing limited quantities of FTC beans in order to avoid negative publicity.

Starbucks has deftly and meaningfully shown its commitment to social responsibility while maintaining its stature and financial success within the coffee industry. Its partnership with Conservation International set the standards for relationships between a for-profit firm and an NGO while trying to solve an important market challenge. Without a doubt, Starbucks will maintain and even expand its partnership with CI with the byproduct of an enhanced corporate brand, especially because the relationship is one of mutual respect and open communication. It has been a slow process to effective change, but the expansion of the key initiative, known as the Shade Grown Coffee Initiative beyond Chiapas, Mexico will not only increase its positive environmental impact, but will also foster access to high quality, environmentally sustainable coffee beans with obvious benefits to suppliers, consumers, and Starbucks. This success allows CI to expand their environmental impact in work with other companies and industries.

And, best of all, it allows Starbucks to keep serving delicious coffee to its customers.

“Stan Lee’s Comikaze” Becomes “Stan Lee’s L.A. Comic Con”

By David Baker, Esq.

Along with popular media megastar Stan Lee, this past weekend, more than 75,000 fans descended on the Convention Center in downtown Los Angeles to celebrate their mutual love of comic book s and all the things that have been spawned by comic books. Whether you religiously watch television shows like The Walking Dead or you prefer blockbuster superhero movies like Doctor Strange or even if you just wanted to pick up another copy of the latest Batman graphic novel, there was something that would interest you at the comic book convention.

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But this year’s event was different because it was no longer called Stan Lee’s Comikaze (the name it has used since its inception six years ago) and was instead branded Stan Lee’s Los Angeles Comic Con (even though it has no official affiliation with the better known San Diego Comic-Con®). Other than signage and branding on the convention’s publications and swag (t-shirts, stickers, and such), the convention was much like in years past with hundreds of cosplayers portraying their favorite fictional characters, even more photographers jostling to grab photographs of the cosplayers, and almost a thousand unique exhibitors selling their wares.

Nevertheless, the rebranding raises some interesting questions, particularly given ongoing litigation between the owners of the San Diego Comic-Con® event held in mid-July of every year and certain other conventions, including the Salt Lake City Comic Con. Still, there are numerous other extremely similar comic book convention, some rivaling the San Diego event in size and scope (anyone been to the New York Comic Con?), and most of them use some version of the “comic con” name.

San Diego Comic Convention, owner of the “Comic-Con” trademark registered with the U.S. Patent and Trademark Office (the “PTO”), has been very tight lipped about any licensing or other arrangements with the various conventions that have popped up around the country in recent and it is unclear if the organizers of the Stan Lee branded event sought permission before the rebranding was implemented. It is also unclear what the San Diego Comic-Con® group thinks of the rebranding.

But if trademark registrations are any indication of possible future problems, a quick look at the PTO’s website reveals that San Diego Comic Convention has filed an application for registration of “LA COMIC-CON” [USPTO TM Ser. No. 86774356] and fans are left wonder if this portends a showdown between two of the longest standing superheroes of the comic book universe.

Why It Matters.  Generally speaking, the use of an identical mark on the same good or service would clearly constitute infringement. And, If a party owns the rights to a particular trademark, that party can sue subsequent users of the trademark for trademark infringement.  The standard is “likelihood of confusion.”  To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods.  Essentially, this means that the law will not allow the use of two separate “LA COMIC-CON” trademarks to be used to describe competing events unless the owners of the two marks have agreed to do so.

 

If you cut me do I not bleed…..lubricant?

Unless you’ve been living under a rock the past few decades, you know that robotics, especially robots made to resemble human beings and to interact with real people, has become a point of real fascination. Whether you’re a fan of classic sci-fi films like Arnold Schwarzenegger’s Terminator series, the hit HBO series Westworld with Anthony Hopkins and Ed Harris (or it’s corny 1970’s era version) or even more near future shows like the BBC’s Humans, you’ve probably encountered some of the issues (moral, ethical, and, of course, technological) that come with the introduction of androids and other robots into human society.  But, have you ever stopped to consider the issues that arise by creating robotic “beings” that carry with them human emotions and, God forbid, the ability to feel pain?

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Writing for IPWatchdog, Megan Ray Nichols (editor extraordinaire for the blog Schooled by Science) recently posted a thoughtful and thought-provoking article entitled, “Ethical, legal questions arise as scientists work to teach robots to feel pain.”

The question of whether robots will ever think like humans — or even surpass us in intelligence — has been asked ever since humankind started dabbling with robotics. In the many years since then, other questions have been raised, such as: Will robots ever experience human emotions, attractions or love? Can they have a sense of humor? Can they feel empathy? “Star Trek” fans will recognize these questions as a constant source of inquiry relating to Lieutenant Commander Data, the Android Starfleet officer portrayed by Brent Spiner in Star Trek: The Next Generation. Ultimately, the pursuit of emotional understanding led to an “emotion chip” being implanted into Data’s positronic net.

But what about pain? Will robots ever be able to feel pain? While emotions might have been difficult for Mr. Data to control without affecting his efficiency, there are benefits that come from teaching robots about pain. Some scientists are working diligently to answer whether robots can be taught to feel pain, and their work raises other questions as well. How will robots respond to pain? Is this an ethical endeavor? What are the potential problems?

How Could Robots Feel Pain?

A team of researchers from Stanford and University of Rome-La Sapienza were able to program an arm-like robot they designed to avoid collisions with humans and other obstacles coming from different directions at different velocities. In Germany, another group is experimenting with an artificial nervous system for robots, which could teach machines how to feel pain, as well as how to react to it. And at Leibnize University of Hannover, researchers believe that robots could use the sensations of pain as a form of protection in hazardous situations.

Robots with fingertip sensors currently exist. They can detect changes in contact pressure and temperature. Depending on the level of pressure or temperature experienced, the arm’s responses will differ. This is really no different from the way humans and animals utilize this sensory feature. Pain is a response of the neurological system to help us evade danger and avoid injury. A stimulus given to a robot that induces a similar evasive behavior could be thought of as teaching the robot to “feel pain.”

Thinking and Feeling Go Hand in Hand

If robots could become more humanlike in the way they respond to stimuli, they could potentially become even more efficient and safe as they go about their operations. There are patents for advanced robotics that include concepts for machines with true human intelligence that learn through experience — including through tactile feeling. Such machines would be capable of storing information and retrieving it or modifying it in response to certain situations or tasks, much like a human brain. In essence, these machines would be able to learn from the past to predict the future.

One way robots could learn is through experiencing feelings of pain and pleasure, just as humans do throughout their lives. For example, a robotic car could be programmed to experience pain when hit with a rock, or when someone slams one of its doors or when someone yells loudly. This was the invention disclosed in U.S. Patent Application No. 20080256008, titled Human Artificial Intelligence Machine. The patent application explains that this “feeling” of pain is created through the use of a loop recurring in a pathway. The robot is programmed to have a simple loop in memory, which allows knowledge to be built upon recursively. There are many other practical applications for pain in robotics, and scientists are currently exploring some of those potential benefits.

The Benefits of Robotic Pain

One way we use robots is the navigation of dangerous situations, in which robots perform tasks that would put a human worker at high risk of injury or death. A highly radioactive environment is one such example. If robots were able to experience pain, and interpret this type of sensory data as a threat to their physical existence, they would be better able to protect themselves from harm and complete tasks more efficiently. To return to “Star Trek,” Lieutenant Commander Data was able to identify atmospheric and environmental threats to his well-being, even if he was forced to describe them with a machine’s characteristic detachment.

Interestingly, there’s also the possibility that pain sensors for robots could in turn protect humans. Robots and humans already work together in a variety of settings, and as human-robot interaction becomes more common in the modern workplace, accident prevention will become more and more important. A robot would ideally be able to detect unforeseen disturbances, and consider and rate the potential damage caused by their interaction with said disturbance. They could then react to counter-disturbances in different ways depending on how it’s classified. What we’re talking about here is anticipation and adaptation — qualities prized in humans, but which artificial life-forms have so far struggled to duplicate.

For the rest of the story, check out Painful Robots

 

A battle over trademark rights it will be

By David Baker, Esq.

It is hard to say whether or not this would constitute an actual “disturbance” in The Force, but Lucasfilm Ltd., a subsidiary of The Walt Disney Co., has filed suit against a school teaching students how to use lightsabers, claiming that the school has infringed on several ‘Star Wars’ trademarks.

More specifically, Lucasfilm has named Michael Brown, who owns several martial arts schools, including Lightsaber Academy and New York Jedi, and who teaches Star Wars fans how to use lightsabers for “illuminated stage combat.” Apparently, Brown and others at the schools use concepts from the Star Wars films, television series, and toy lines as props and thematic elements in their instruction.

According to allegations in the complaint, Defendants regularly use the Lucasfilm Trademarks without authorization in connection with their businesses.” Further, the complaint alleges that Brown’s schools use a logo that is “nearly identical, and confusingly similar, to Lucasfilm’s trademark Jedi Order logo…It is round in shape, with six wing-like shapes curving upward (three per side), and an eight-pointed star featuring elongated top and bottom points stretched into a vertical line.”

Earlier this year, Lightsaber Academy, Inc. filed an application for registration of its logo in International Class 041 for “Martial arts instruction.” [USPTO Trademark Ser. No. 86927002]

lightsaber-academy

But, as you can see, the Lightsaber Academy logo does bear similarities to the Lucasfilm logo.

jedi-order

Not surprisingly, Lucasfilm already owns an active federal trademark registration for “JEDI TRAINING ACADEMY” in International Class 025 for clothing and International Class 41 for “Entertainment services, namely, live theatrical performances and interactive live performances” which first was registered in 2008. [USPTO Trademark Reg. No. 3368034] It also holds an array of registrations for the various logos and designs that populate the Star Wars (fictional) universe.  These registrations number more than a thousand in the U.S. alone.

As noted in the Complaint, Brown has sought a license from Lucasfilm, but the studio, protective of its intellectual property, has repeatedly denied these requests. “Lucasfilm has consistently denied Defendants’ requests. Lucasfilm has never licensed or authorized Defendants to make any commercial use of the Lucasfilm Trademarks or any other of Lucasfilm’s intellectual properties.”

This led Lucasfilm to send Brown multiple “cease and desist” demands in an effort to stop the ongoing infringement, but his only response was the aforementioned filing with the Trademark Office. Now, the film studio is seeking a permanent injunction against Brown and his company and has asserted claims for trademark infringement, cybersquatting, and unfair competition with claims for monetary damages exceeding $10 million.

Why It Matters. “Cease and desist” letters are commonly used by attorneys and corporate legal departments to assert claims against third parties in an effort to get them to stop some activity that the sender has determined to be detrimental to its business operations.  The basis for such demands oftentimes involve trademark or copyright infringement, but can include any number of things, including misappropriation of trade secrets, patent infringement, unfair competition, or even deceptive advertising.  They are intended to intimidate the receiving party and to leverage compliance.

However, generally speaking, the letters themselves have no legal effect even though they usually include an assertion of specific wrongdoing, citations to allegedly supporting case law or applicable statutes, and a litany of things the sender wants the recipient to do, such as stop the offending activity and turn over all profits derived from it. If there is an actual legal consequence to such letters it would be the fact that the recipient cannot deny knowing that claims were being asserted against it and this may impact such things as punitive damages.  Nevertheless, the Lucasfilm fracas clearly illustrates the point that “Demand letters taken seriously they should be.”

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