Blog Post

Thomas Carlon

The sky’s the limit when it comes to the imagination of people; their creative ideas, interests, how they see the world. But, when does it become apparent that one company is blatantly copying the creative idea of another? Such is the case with China’s newest sportswear brand, Uncle Martian.

Under Armour is one America’s most well-known sportswear brands, it is worn by your everyday American, as well as New England Patriots quarterback Tom Brady.[1] Under Armour has built its reputation on quality products that hold up during even the most rigorous exercises. But, the true question is whether Under Armour has any recourse against Uncle Martian.

According to United States law, trademarks are governed primarily by the Lanham Act of 1946.[2] Under this statute, infringement will be found under the “likelihood of confusion test,” which is laid out in Polariod v. Polarad.[3] Where the defendant would be found liable if the new trademark infringes on the existing trademark, where a consumer is likely to confuse the companies and mistakenly purchase the wrong product. There are several factors to consider when applying the confusion test: strength of the plaintiff’s trademark; degree of similarity between the two marks at issue; similarity of the goods and services at issue,[4] along with a few other factors too. If, Uncle Martian were to begin sales within the states or attempt to register the logo with United States Patent and Trademark Office (“USPTO”), then Under Armour could file suit for infringement in the federal circuit. But, as it currently stands Uncle Martian has not yet begun sales in the states.

Under Armour began its operation in 2010, and since that time has opened over 75 stores.[5] Premium sportswear in China has become a fashion trend and is regarded highly within the country.[6] It is evident that a local corporation would be interested in participating in this market. Since Uncle Martian has only recently launched in China, it is unlikely that Under Armour could sue for trademark infringement within the United States jurisdiction, therefore the only recourse currently for Under Armour is within China’s jurisdiction.

According to Entrepreneur, China has similar copyright laws to that of Western countries like the United States.[7] “China has been a part of the World Trade Organization since 2001, which requires it to establish significant intellectual property law.”[8] For Under Armour this should sound like wonderful news, unfortunately for our well-known sportswear provider, they may encounter some difficulties. Within China, their intellectual property rights laws are difficult to enforce.[9] For Under Armour it would be in their best interest to seek a court injunction against Uncle Martian for infringement, as opposed to seeking statutory damages too. Because, within in China there is no discovery procedure, like there is in the United States.[10]

Did Uncle Martian copy Under Armour’s logo? The largest difference between the two is that Uncle Martian’s upward facing arc and the downward facing arc do not intersect. How likely will it be for someone to confuse the two logos and purchase the wrong product – pretty likely. As a consumer, the two logos are strikingly similar and I believe Uncle Martian is attempting to copy rival sportswear company Under Armour.

 

[1] Michael Forsythe, Chinese Appear Underwhelmed by Under Armour Knockoff, The New York Times (Apr. 29, 2016), http://www.nytimes.com/2016/04/30/world/asia/china-uncle-martian-under-armour.html.

[2] Lanham Act 15 U.S.C.A § 1051 (1946).

[3] Polaroid v. Polarad, 287 F.2d 492 (2nd Cir. 1961)

[4] Id.

[5] Victoria Ho, Chinese brand Uncle Martian is blatant rip-off of Under Armour, Mashable (Apr. 29, 2016), http://mashable.com/2016/04/29/uncle-martian-under-armour/#NA59lF1aXuq3.

[6] Id.

[7] Will Heilpern, A Chinese Sportswear Brand Called Uncle Martian Just Launched, and it Appears to Be Openly Ripping Off Under Armour, Entrepreneur (Apr. 29, 2016), https://www.entrepreneur.com/article/274920.

[8] Id.

[9] Id.

[10] Christina Nelson, Enforcing Intellectual Property Rights in China, China Business Review (Oct. 1, 2012), http://www.chinabusinessreview.com/enforcing-intellectual-property-rights-in-china/.

Samuel Miller

Earlier this September, litigation services and software company Opus 2 International announced the United States’ “first integrated pop-up electronic courtroom built for paperless trials” occurred in Miami.  Brenda Mahedy, head of global marketing for Opus 2 International, discussed the impact of these services on court cases, while addressing the history of these services in the courtroom context.

Although Opus 2 was unable to discuss the specifics of the case, Mahedy and the company disclosed that “the parties were two multinational companies with branches in the United States, the United Kingdom, and Europe engaged in international litigation. Both parties came to the trial with an extensive array of technology and witness services, including evidence and trial presentation technologies.”  Mahedy stated, “while various disparate hearing room services already exist in the U.S., such as trial presentation tools, third-party interpretation services, and video conferencing, it is rare that these services are fully integrated with one another, yielding a much more seamless and efficient process during trial.”
Currently, these services are also utilized in some capacity in state courts in Texas and Utah dealing with electronic filing.  Furthermore, District Courts in the District of Columbia, Michigan, California, and Kentucky also provide technology-based evidence presentation capabilities though the addition of audio and video hardware in their courtrooms.  While these changes may improve efficiency and streamline paperless trials, these technologies may be slow to develop across the justice system, due to the structure and nature of changing policies and procedures related to the operation of the courtroom. Drawing from other court systems such as the UK, which have already begun to implement these technologies, however, may provide some model by which the courts could begin to make these changes.

Brittany Charles

The Terminator will be real during our lifetime. Perhaps not the Terminator, but due to low cost sensors and artificial intelligence the concept of autonomous weapons that act without human intervention is becoming a reality[1]. Weaponry capable of targeting and killing completely free of human intervention, while not available in the US, are appearing in military arsenals throughout the world[2].

According to the N.Y. Times, such operations are controversial. This is because although initially a human operator selects a target, some of these systems are designed to operate (at times over hundreds of miles) out of the control of the operator, identify and then attack a target[3]. The technology can be utilized in various weaponry systems including: robots, missiles, stationary weaponry systems and drones[4].

So why is a pentagon official reporting that low cost weaponry capable of completing military actions without human intervention dangerous? These weaponry systems are completely autonomous. According to Paul Scharre, one of the authors for the 2012 Defense Department directive report, “Having a person in the loop is not enough…the human has to be actively engaged.”[5] Furthermore, these systems are capable of being hacked, spoofed or manipulated by adversaries. Kind of like the Terminator. Perhaps a weapon that can decide how to complete military objectives and is additionally capable of being influenced by others is a weapon we might want a little more control of?

[1] John Markoff, Report Cites Dangers of Autonomous Weapons, N.Y. Times (Feb. 28, 2016), http://www.nytimes.com/2016/02/29/technology/report-cites-dangers-of-autonomous-weapons.html?_r=0.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

Samantha Dente

The next great frontier in medical advancements is the use of 3D printing. Although the use of 3D printing in medicine is still in its beginning stages, there are already huge implications from its use.

Most recently in September, a cancer patient received a 3D printed titanium sternum and partial rib cage to replace the bones he had lost during cancer treatment.[1] Compared to traditional flat plate implants, which tend to loosen over time and thus require follow up invasive procedures for maintenance or replacement, the success of the surgery marks a breakthrough in the medical community.[2] In addition to the more durable material, another benefit of 3D printed implants is that the implant can be made to resemble the patient’s actual anatomy with the aid of CT scans.[3]

In August, another breakthrough occurred when the FDA approved a 3D printed prescription pill for consumer use to treat epilepsy.[4]  The 3D technology allows pills to be made more porous which allows them to dissolve faster and thus act quicker.[5] Before that, in 2013, a two-year-old girl born without a trachea received a 3D printed windpipe built with her own stem cells. [6]

One of the biggest areas of concern is how the use of 3D printing will change research and development (R&D) for medical device manufacturers and pharmaceutical companies.[7] One of the foreseeable functions 3D printing is the ability to print tissues and organs for drug testing, which would in turn eliminate the need for animal testing or synthetic models which are less accurate.[8] Currently, the average R&D cost for a new drug is approximately $4 billion and the failure rate of drugs in clinical trials is 90% due to differing animal and human responses to testing.[9] By lowering the risk of trial failure, this would lead to a reduction of cost and clinical trial failures.

In 2013, the U.S. funded the “Body on a Chip” project, and just this year the first organ chips are coming to market.[10] In an effort to curb the issues with R&D described above, the project encouraged universities to essentially 3D print organs through the following process: prints of sample tissue meant to mimic human organs are placed on a microchip and connected with a blood substitute to keep cells alive. [11] This allows doctors to more accurately test specific treatments and monitor their effectiveness.[12] The military has shown interest in this project in the hopes of one day developing treatments for nuclear and biological incidents and has funded about $39 million into projects at Harvard and MIT.[13]

Although there was concern over FDA roadblocks, it has surprisingly expressed openness to the use 3D printing in R&D.[14]

It has been about thirty years since 3D printing technology was first introduced, and the biotechnology community is finally harnessing its true power and potential.[15] It has been predicted that patients eventually may be able to print their own medicines at home, which would in turn lead to a transition in how medications are prescribed.[16] It may seem like science fiction, but it is a possibility that could become a reality sooner than we think.

 

[1] Kelly Hodgkins, Cancer Patient Undergoes World’s First 3D Printed Sternum Replacement Surgery, Digital Trends (Sep. 11, 2015), http://www.digitaltrends.com/cool-tech/sternum-ribs-3d-print-implant/.

[2] Id.

[3] Id.

[4] Dominic Basulto, Why It Matters That the FDA Just Approved The First 3D Printed Drug, The Washington Post (Aug. 11, 2015),  https://www.washingtonpost.com/news/innovations/wp/2015/08/11/why-it-matters-that-the-fda-just-approved-the-first-3d-printed-drug/.

[5] Id.

[6] Zuzanna Fiminska, 3D Printing Set To Revolutionize Pharma, Eye For Pharma (July 15, 2014), http://social.eyeforpharma.com/clinical/3d-printing-set-revolutionize-pharma.

[7] Id.

[8] Id.

[9] Id.

[10] Towards a Body-On-A-Chip, The Economist (Jun 13, 2015), http://www.economist.com/news/science-and-technology/21654013-first-organ-chips-are-coming-market-and-regulators-permitting-will-speed.

[11] Fiminski, supra note 6.

[12] Id.

[13] Towards a Body-On-A-Chip, supra note 10.

[14] Basulto, supra note 4.

[15] Bethany Gross, Evaluation of 3D Printing and Its Potential Impact on Biotechnology and Chemical Sciences, Analytical Chemistry (Jan. 16, 2014), http://pubs.acs.org/doi/pdf/10.1021/ac403397r.

[16] Basulto, supra note 4.

Cecilia Santostefano

Samsung’s reputation has found itself in a bit of a blazing controversy. Back in early September, Florida resident Nathan Dornacher found his Jeep Grand Cherokee in flames after leaving his Note 7 charging on the center console.[1] After thirty-five smartphone-exploding incidents were reported and confirmed, Samsung initially recalled its smartphone in ten countries.[2] As a result, customers could obtain a refund for their device or ask for a different device.[3]

It wasn’t until September 15 that the U.S. Consumer Product Safety Commission came out and told its customers to “immediately stop using and power down the [Note 7] device.”[4] This warning, however, seems to be ineffective, as data analysis shows “the usage rate of the phone among existing users has been almost the exact same since the day of the [initial] recall [by Samsung].”[5]

The recall is quite the costly setback for Samsung, as the Galaxy Note 7 was a means to compete with large competitors like Apple.[6] New Note 7 devices are, however, scheduled to hit stores no later than September 21.[7]

 

[1] Josh Cascio, Jeep totaled by exploding Note 7, FOX 13 News, (September 7, 2016, 10:51 PM), http://www.fox13news.com/news/local-news/203295058-story.

[2] Cascio, supra note 1.

[3] Jill Disis, U.S. formally recalls Samsung Galaxy Note 7, CNN, (September 15, 2016, 5:33 PM), http://money.cnn.com/2016/09/15/technology/samsung-galaxy-note-7-cpsc/.

[4] Disis, supra note 3.

[5] Alex Johnson, Samsung Galaxy Note 7 Owners Keep Using Their Fire-Prone Phones, NBC, (September 16, 2016, 8:07 AM), http://www.nbcnews.com/tech/mobile/samsung-galaxy-note-7-owners-keep-using-fire-prone-phones-n649251.

[6] Ankur Banerjee, Samsung Galaxy Note 7 Recalled Over Battery Fires, Huffington Post, (September 15, 2016, 4:05 PM), http://www.huffingtonpost.com/entry/us-consumer-product-safety-commission-reportedly-plans-recall-of-samsung-galaxy-note-7_us_57dafcffe4b08cb1409476ec?section=us_technology.

[7] Banerjee, supra note 6.

Aiden Scott

As a result of the booming craft beer market, both microbreweries as well as large multinational brewing companies are encountering atypical difficulties in trademarking their products.  Due to the market crowding that “has been exacerbated by immense growth in microbreweries in recent years” some brewers have turned to other markets. In order “to appeal to a broader market” micro, and macro-brewers both have begun to add non-alcoholic drinks to their portfolio, in addition to “numerous spiked versions of traditionally virgin drinks.” This cross-marketing has caused attorneys who work for alcoholic producers to “do a lot more leg work than they did a decade ago to make sure their products don’t infringe anyone else’s trademarks.” Because consumers could be easily mistake an adult beverage for one that “looks remarkably like a non-alcoholic beverage” intellectual property attorneys who work in the alcohol industry have “a new layer of possible confusion” to work around.

See Joseph Marks, Blurring Lines Between Beer and Soda Cause Trademark Confusion, Attorneys Say, 92 BNA’s Pat., Trademark, & Copyright J. 1353, 1354 (2016).

 

Samantha Cirillo

In June 2015, California passed a new law barring religious and personal-belief exemptions from the state’s existing mandatory immunization law.[1] Beginning at the start of the 2016 school year, unvaccinated children may only enroll in school with a medical waiver from a licensed physician. [2] While approximately 30 states have removed the personal-belief exemption, California has become one of only 3 states, along with West Virginia and Mississippi, to bar religious exemptions as well.[3] The new law, SB 277, will affect nearly 80,000 students that currently claim personal-belief exemptions. [4]

The law requires that as of July 1, 2016 newly enrolled children will need to be vaccinated absent a sufficient medical waiver.[5] If a child has filed a personal-belief exemption before January 1, 2016, they must comply with the law before reaching the 7th grade. [6] However, children currently in the 7th grade or higher will remain exempt.[7] Parents still have the ability to decline vaccines for their children, however, unvaccinated or partially vaccinated children must be homeschooled. [8]

The law was passed only months after a measles outbreak in California which started in Disneyland and spread to over 150 cases statewide. [9] Although there are many supporters who argue that SB 277 is a necessary protection for schoolchildren, the law has had its fair share of opposition. Parents argue that the law is violating their right to make decisions about their children’s health and safety. [10] The opposition towards vaccines has grown with the increasing number of parents asserting a link between vaccination and autism. [11]

Opponents of the law have held numerous protests and have used social media to raise awareness of the potential risks associated with vaccinations. Actor Jim Carrey, expressed his disapproval on twitter,  calling Governor Jerry Brown a “corporate facist” who is poisoning our children. [12] Carrey has often voiced his concern with the levels of mercury, aluminum and thimerosal in the mandatory vaccines. [13]

An additional argument that has gained a lot of attention in the recent months is whether SB 277 interferes with a child’s right to public education.[14] To address these concerns, a group of parents and a non-profit organization, Education 4 All, filed suit in the U.S. District Court claiming that SB 277 violates the state constitution. [15] The court has denied the petitioner’s’ request for a preliminary injunction which would allow the law to be suspended while the case is being decided. [16] The court stated that there is a long history of requiring children to be vaccinated before entering school and the law will only benefit and protect the community as a whole. [17]

Ultimately, parents may have the right to make health decisions for their own children. But, do they also have the right to put other students, as well as the community in danger as a result of their decisions?

­­

1  Patrick McGreevy and Rong-Gong Lin II, California Assembly approves one of the toughest mandatory vaccination laws in the nation, L?? A?????? T???? (June 25, 2015), http://www.latimes.com/local/political/la-me-pc-vaccine-mandate-bill-up-for-vote-thursday-in-california-assembly-20150624-story.html

2 Paul Sisson, Federal judge denies injunction against California vaccination law for schoolchildren, L?? A?????? T???? (Aug. 26, 2016), http://www.latimes.com/local/lanow/la-me-ln-california-vaccination-schools-20160826-snap-story.html

3 Melissa Healy, Pediatricians urge states to get tough on parents who don’t want to vaccinate their kids, L?? A?????? T???s (Aug. 29, 2016), http://www.latimes.com/science/sciencenow/la-sci-sn-pediatricians-vaccines-exemptions-20160828-snap-story.html

4 Phil Willon & Melanie Mason, California Gov. Jerry Brown signs new vaccination law, one of nation’s toughest, L?? A?????? T???? (June 30, 2015), http://www.latimes.com/local/political/la-me-ln-governor-signs-tough-new-vaccination-law-20150630-story.html

5 Id.

6  Id.

7 Id.

8 Paul Sisson, supra note 2.

9 Veronica Rocha, Jim Carrey calls Gov. Brown a ‘facist’ for signing new vaccination law, L?? A?????? T???? (July 1, 2015), http://www.latimes.com/local/lanow/la-me-ln-actor-jim-carrey-vaccines-20150701-story.html

10 Phi Willon & Melanie Mason, supra note 4.

11 Id.

12 Veronica Rocha, supra note 9.

13 Id.

14 Soumya Karlamangla, Opponents sue to stop California’s vaccination law, L?? A?????? T???? (July 5, 2016), http://www.latimes.com/local/lanow/la-me-ln-vaccination-lawsuit-20160705-snap-story.html

15 Id.

16 Id.

17 Paul Sisson, supra note 2.