This year has seen many a business deal, not to mention bail out, but has also been the year for quite a few tantalising tit-bits from the intellectual property world. The following are some highlights from throughout the year, which is already drawing to a close.

The last reported intellectual property news here was that Youtube had won the suit brought by Viacom and others against it for copyright infringement. Content owned by Viacom, the copyright in which belongs to Viacom, was being uploaded by users to the video-sharing site without the appropriate authorisation by the rights-holder.

The US court ruled that Youtube is protected by the safe harbour rules in the Digital Millennium Copyright Act, which safeguards service providers from the deeds of their users as long as the service provider takes down content after receiving infringement notices from legitimate right-owners.

An appeal from this decision was expected, and in fact, a few weeks ago the appeal by Viacom was duly filed. The industry giant is rallying support from its peers, leaving us eager for the final decision expected next year.

A while ago I had written about the suit started by the “Naked Cowboy” in New York against Mars Inc, producers of M&Ms, for violating his trade mark and image rights. Mars had put up a billboard in Times Square depicting the blue M&M dressed like the “Naked Cowboy”, with guitar and all. It has been reported that this dispute has been settled out of court, however the Cowboy now sued the “naked cowgirl” for trade mark infringement in a most heated battle of the sexes.

Australian band, Men at Work, were this July found guilty of copying the distinctive flute riff from the campfire song “Kookaburra Sits in the Old Gum Tree” in their iconic hit “Down Under”. The Australian federal court decided that the band owed the owners of the copyright five per cent of the royalties for the unauthorised use of the flute riff from the campfire song, however these could only be claimed back to 2002.

Staying on the subject of copyright infringement, the ongoing battles by the music industry against peer to peer sites have recently yielded fruit in the US, where a New York district court ordered the peer-to-peer site LimeWire to be permanently shut down by disabling the “searching, downloading, uploading, file trading and/or file distribution functionality”.

This was the second pronouncement by the court who had first found the company’s founder liable for copyright infringement on a “massive scale”. The court’s quantification of damages is due next year. Despite this loss, it is reported that LimeWire is still attempting to negotiate licence deals with major records to legally provide music sales.

In the meantime Europe was rocked by the Pirate Bay case. The first court had ruled that the four defendants were guilty of aiding internet users infringe copyright belonging to third parties via their site, which provided links to download copyrighted material. The appeals court confirmed the guilty verdict, however the sentence was reduced – the court adopted an individual approach and decided according to what each defendant was personally responsible for. The amount of damages was also increased by $2million, to a total of $6.5million. A further appeal is expected.

Moving on to trade marks, there has been a plethora of cases involving auction site eBay, with mixed results. Sued for trade mark infringement and false advertising in the US, eBay was victorious and cleared of such charges. The trade mark use was held to amount to fair use, since eBay had to identify the goods by naming the designer, and the advertising was not literally false, as required under US legislation.

However, it was not as successful in France, where it was ordered to pay damages for damaging the reputation of designer trade marks. Interestingly, apart from the damages, eBay were ordered to pay a €1,000 penalty every time search-related keywords which harm brand reputation are used in future.

The latest trade mark news from the US is that Facebook is one payment away from owning the US trade mark “Face” for the class of telecommunications services. US law requires use of the mark itself (therefore “face” not “facebook”) in commerce, therefore we look forward to what sort of “Face”-only products Facebook will be launching. Without use of the mark in commerce, the trade mark risks being struck off.

Living in the era of Web2.0 we witness increasing cross over between intellectual property law and the digital world. Why, only a few weeks ago, British courts in a photography copyright case held that newspapers, as a medium, are ephemeral while the Internet is permanent. Having taken stock of the variety of IP cases this past year, the legal battles and arguments which will arise in 2011 are eagerly awaited.

www.fenechlaw.com

The author specialises in intellectual property law at Fenech & Fenech Advocates.