Dawn Ellmore Employment's Blog

IP and Legal Industry Updates

Dawn Ellmore Employment’s Blog


Dawn Ellmore Employment’s Blog keeps readers abreast of current Intellectual Property (IP) and legal developments in one place as a sort of mini digest.

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Gene Simmons Tried to Trademark Devils Horns Rock Hand Gesture but Withdrew USPTO Application

Israeli-American hard rock bass guitarist and singer for the hard rock band Kiss Gene Simmons has been in the IP news recently after he attempted to trademark a hand gesture he claimed he invented.

In the trade mark application to the United States Patent and Trademark Office (USPTO) Simmons applied for the trade mark in the context of “entertainment, namely, live performances by a musical artist; personal appearances by a musical artist”.  The trade mark that was sought was described as follows: “a hand gesture with the index and small fingers extended upward and the thumb extended perpendicular.”  This means that the claimed trade mark hand gesture was the ‘devils horns’ rock symbol but with an added thumb sticking out at the side.  It was the gesture itself that was claimed, rather than image or depiction of the gesture.  Simmons noted in the USPTO trade mark application the first date that he used/invented the hand gesture which was 14 November 1974.

Less than two weeks after filing the trade mark application with the USPTO Simmons withdrew the application.  There were several suggested obstacles with the application if it were to have proceeded, noted below:

  • hand gestures in and of themselves cannot function as trade marks.
  • the hand gesture was identical to the American Sign Language sign for “I love you”
  • John Lennon on the cover of Yellow Submarine in 1966 uses the same hand gesture backwards.
  • Simmon’s application has drawn a fair amount of criticism.


Asian-American Rock Band The Slants Won Supreme Court Ruling in Trade Mark Dispute over Band Name

Asian-American rock band The Slants recently won a US Supreme Court Ruling in a trade mark dispute over the band’s name that some regard as an ethnic slur.

The band initially tried to register the band’s name as a trade mark at the U.S. Patent and Trademark Office (USPTO) but the application was denied because of the Lanham Act, that prohibits any trademark that could “disparage … or bring … into contemp[t] or disrepute” any “persons, living or dead,” as the court states..

Band members of The Slants said they wanted to reclaim the name that is often seen as a slur and that they had experienced as such in the past.  By reclaiming the name as their band’s identity they hoped to bring empowerment to the phrase.  In this recent ruling the Supreme Court deemed that members of the Asian-American rock band The Slants have the right to call themselves by a disparaging name.

Some say this decision is a victory for free speech and the decision from this case could inform arguments over many other future cases.  This Supreme Court ruling could have a broad impact on how the First Amendment is applied in other trade mark cases in the US.


Unified Patent Court System on Hold after German Ratification Suspension

The German ratifying legislation had been passed by the country’s parliament and was ready for signature by the German president.  The Unified Patent Court (UPC) system in Europe has been put on hold after the Germany’s Constitutional Court formally requested the German president refrain from signing the legislation into law while it considers a legal challenge that has been lodged.  Exact details of the grounds for the complaint and who has raised it are not yet known.

The UPC Preparatory Committee had previously stated that the original target date of December 2017 for the UPC to become operational was no longer achievable.  It is thought that a ruling on whether Germany should ratify the UPC system could take up to a year to be reached which would push the UPC operational timetable back to the end of 2018 or early 2019.  This delay in ratification by Germany could also impact the UK’s timeliness in ratifying the UPC.

The introduction of the Unitary Patent (a single patent covering multiple countries) and the establishment of a new patent court, the Unified Patent Court (UPC) will affect holders of existing European Patents as well as those seeking new protection for inventions.  Businesses will be able to apply to the European Patent Office for unitary patents which, if granted, would give patent protection for inventions across 25 countries.  For the new UPC system to become operational, at least 13 EU countries (including Germany, France and the UK), must pass national legislation to ratify the UPC Agreement that was finalised in 2013.


Amazon Patents System of Storing Stock Underwater

Amazon filed for a patent entitled Aquatic storage facilities” in September 2016 that was recently granted.  The aim of this patented system is to increase warehouse space by increasing storage space by depth.

The proposed system would create underground warehouses by wrapping containers of stock items in waterproof packaging with depth control devices (to raise and lower the items) and storing them in giant water pools submerged under current Amazon warehouse floors.

The patent also mentions the possibility of using airplanes or drones to drop packages (fitted with GPS tags) into natural rivers or lakes where they would be stored at the bottom of the water until they were needed and they could then be retrieved using a sonar signal.

You can read more about the patent here:

First Design Appeal Decision from the UK IPO

The Intellectual Property Act 2014 introduced a new appeal regime for designs.  The system of appeals to an Appointed Person acts as an alternative to the route of appealing to the High Court.

This case was significant because it was the first design case decision handed down by the UK Intellectual Property Office (UK IPO) under the Appointed Persons regime in a registered design law case.

The Union Jack designs that were at centre of this appeal were found to be invalid under the new Appointed Persons regime on account of the fact that the two registered designs were said to lack individual character because of the existing prior art (similar designs have been sold in the London souvenir market for many years).  The UK IPO therefore dismissed the appeal.


Need a Second Opinion whilst out Shopping? Adobe’s Latest Patent may have the Answer!

Shopping has often been referred to as a national pastime.  Most people love shopping for new purchasers, in fact research from the Great British Wardrobe Report found that people in the UK spend an average of £1042 per year on their wardrobes.  Whilst there has been a trend over recent years for consumers to spend more money online, in store purchasers still account for a high percent of retail value.

Potential consumers who enter a shop on their own can often find they wish a second opinion before committing to a purchase, especially on clothes and shoes.  Adobe has come up with an interesting new piece of patented technology which could help with this as it aims to give consumers a virtual second opinion (advice from someone of the shopper’s pre-determined group on whether to buy the particular item or look for other items in the store) via their smartphones.

The technology works by using a monitoring device that monitors users’ movement and activities within shops.  This data is collected and stored building a shopping record for each consumer allowing all consumers to be categorized into similar groups.  After determining the group the system sends the notifications to rest of the similar group members about your choice while you are present in the shop.

The system allows the shop visitors to provide feedback to each other, helping people make the right choice before buying a product.  The new technology means that lone shoppers will always have user buyer advice from people similar to themselves instantly available on their smartphones as a virtual second opinion for them.  The aim of Adobe’s patented technological solution is to increase customer satisfaction and increase conversions for products.  We have to wait and see how Adobe might implement this new technology.



Essential Smartphone Faces Trade Mark Infringement Allegations Prior to Launch

The American computer programmer, engineer, entrepreneur and venture capitalist Andy Rubin recently announced his upcoming Essential smartphone.  Unfortunately before the product launch the company behind the Essential smartphone has been named in a trade mark infringement claim over the name Essential.

In August 2016, US based Spigen (a company that designs and manufactures cases and accessories for mobile devices) registered a Class 9 trade mark for the term “Essential.” Class 9 trade marks cover computer and technology products (including smartphones and accessories).

In the trade mark infringement complaint Spigen’s attorneys allege that the use of the term “Essential” in the Essential smartphone is a violation of Spigen’s trade mark which cause consumers confusion over the product’s origin.  They have therefore requested that Rubin’s company cease and desist from using any marks using the term “Essential”.

Disputes such as these are often settled outside of court with settlement agreements.  However if such terms cannot be agreed it could forced a rebrand of the new Essential smartphone.


Emotion-sensing Technology Patented by Facebook

American corporation and online social media and social networking service Facebook have patented emotion-sensing technology that uses a user’s laptop webcam or smartphone camera when it is not turned on to detect the user’s emotions.  Using a sophisticated algorithm the technology is able to determine  whether users are happy, sad, depressed or excited (based on their facial movements and expressions) and display Facebook content that is more relevant to user’s current mood.  The adjustment in targeted advertising and content would happen in real time as a response to the data received about a user’s current state of mind.  It would also prevent irrelevant or upsetting content (any content that the user averts their eyes from) being shown to the user again.

You can read more on the patent here:

The patent for this technology was actually granted in 2015 but Facebook has not currently developed it.  Not all patents are precursors to consumer products and technology but they are usually a good indication of future technological focus for companies.  Fears over users’ loss of privacy could be one reason why the technology has not been currently launched.


UK on track to Create World’s Third Largest Biotech Cluster

According to the latest BioIndustry Association (BIA) report the UK is set to create world’s third largest biotech cluster for biosciences (behind the two leading US biotech clusters of Boston and San Francisco) due to UK investment in the sector.

The BIA report suggests that the UK is closing the gap on leading US life science clusters as a result of £1.13bn investment being raised by UK-based biotech companies in 2016.  The UK continues to lead in Europe for biotech development on account of the UK’s 2016 biotech funding combined with a strong pipeline for future drug development.   The data within the report reveals that the combined capital of the UK and Switzerland is equivalent to 55% of the European total meaning that more than half of all European biotech financing will be outside of the EU following Brexit.


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