IP Expresso

The Heart of the Matter: Copyright, AI Training, and LLMs is a comprehensive analysis authored by Daniel Gervais, Haralambos Marmanis, Noam Shemtov, and Catherine Zaller Rowland. This work delves into the intricate relationship between copyright law and the development of large language models (LLMs) in artificial intelligence.

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This article offers valuable insights for legal scholars, policymakers, and industry professionals grappling with the copyright challenges posed by LLMs. It contributes to the ongoing dialogue on adapting copyright law to technological advancements while maintaining its fundamental purpose of incentivizing creativity and innovation.

For a more detailed exploration, the full article is available on SSRN: SSRN

Blockchain technology is increasingly influencing the music industry by offering solutions to longstanding challenges related to rights management, royalty distribution, and artist compensation.

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As blockchain technology continues to evolve, its integration into the music industry holds promise for creating a more transparent, equitable, and efficient ecosystem. Ongoing developments in decentralized platforms, tokenization of music assets, and smart contract-based royalty management are poised to reshape the industry, offering new opportunities for artists and consumers alike.

The Music Industry on Blockchain Technology is a master's thesis by Andreas Fougner Engebretsen and Hallvard Kristoffer Boland Haugen, submitted to the Norwegian University of Science and Technology in June 2018. The thesis investigates how blockchain technology can address core issues in the music industry, particularly focusing on transparency and efficiency in revenue streams. The authors propose a decentralized application (dApp) that functions as a global copyrights database, enabling musicians to register and license their works. This system utilizes Ethereum smart contracts to manage license purchases, aiming to streamline royalty payouts and reduce the complexity of current licensing agreements. The thesis includes the development of the business logic using smart contracts on the Ethereum blockchain and an associated web application created with a JavaScript framework. This work contributes to the discourse on leveraging blockchain technology to solve value chain problems within the music industry.

Artificial Intelligence and Intellectual Property, edited by Jyh-An Lee, Reto M. Hilty, and Kung-Chung Liu, is a comprehensive examination of the intersection between AI technology and intellectual property (IP) law. Published by Oxford University Press in 2021, this volume addresses the multifaceted challenges and implications that AI introduces to the IP landscape.

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This scholarly work serves as a valuable resource for legal professionals, policymakers, and academics seeking to understand and navigate the evolving relationship between AI and IP law. It offers insights into current debates and proposes frameworks for addressing the legal challenges posed by AI technologies.

The Responsibility of Online Intermediaries for Illegal User Content in the EU and the US by Folkert Wilman offers a comprehensive analysis of the legal frameworks governing the liability of online intermediaries in both the European Union and the United States. Wilman, a member of the Legal Service of the European Commission, examines key legislative instruments such as the EU's e-Commerce Directive and the U.S.'s Communications Decency Act (CDA) and Digital Millennium Copyright Act (DMCA). The book delves into the balance between combating illegal online content and safeguarding fundamental rights, including freedom of expression. It also addresses recent regulatory developments, such as the EU's Digital Services Act and the U.S.'s ongoing debates over Section 230 of the CDA. Wilman advocates for a "double-sided duty of care," urging online intermediaries to proactively address illegal content while ensuring the protection of users' rights. This work serves as a valuable resource for legal professionals, policymakers, and scholars interested in the evolving responsibilities of online platforms in the digital age.

In their scholarly article, "The Future of Trademarks in a Global Multilingual Economy: Evidence and Lessons from the European Union," Professors Barton Beebe and Jeanne C. Fromer examine the challenges posed by trademark depletion and crowding within the European Union (EU). Their empirical study analyzes 1.9 million trademark applications filed with the European Union Intellectual Property Office (EUIPO) from 1996 to 2018. The findings reveal that a significant proportion of common words across major European languages—English, German, French, Italian, and Spanish—are already registered as trademarks, leading to increased difficulty for businesses seeking new, distinctive marks. This situation is further complicated by the "reverse Babel problem," where the registration of a word in one language can preclude its use in others due to translational equivalence. The authors also highlight a trend toward trademark crowding, where closely similar marks coexist, potentially causing consumer confusion and raising barriers to market entry. To address these issues, Beebe and Fromer propose legal reforms aimed at managing trademark depletion and crowding, thereby preserving the effectiveness of the trademark system in a globalized, multilingual marketplace.

This episode delves into the use of Alternative Dispute Resolution (ADR) in resolving trademark disputes, a valuable approach for brand owners seeking efficient and cost-effective solutions outside the courtroom. ADR methods, including mediation, arbitration, and negotiated settlements, offer distinct advantages for trademark disputes, such as confidentiality, faster resolution, and specialized expertise.

Key organizations, such as the World Intellectual Property Organization (WIPO), provide specialized ADR services for IP disputes, including trademark-related issues. The WIPO Arbitration and Mediation Center offers a structured process for mediation and arbitration, handling cases from domain name disputes under the Uniform Domain Name Dispute Resolution Policy (UDRP) to broader trademark conflicts. In particular, UDRP arbitration has become a go-to mechanism for resolving domain name disputes linked to trademark infringement, offering an expedited, online process that circumvents lengthy litigation.

The episode also explores the increasing adoption of ADR within the European Union, where trademark disputes may leverage EUIPO’s mediation services, particularly useful in cross-border trademark issues where jurisdictional complexities arise. Through examples and case studies, this episode examines how ADR solutions preserve relationships and maintain brand integrity, providing a flexible alternative to traditional litigation.

This episode explores the diverse approaches to harmonizing trademark law and integrating administrative procedures across jurisdictions. Trademark law harmonization seeks to create uniform standards for trademark registration, protection, and enforcement, facilitating smoother cross-border trade and reducing conflicts in multinational markets. However, the extent and method of harmonization vary significantly between regions.

In the European Union, harmonization is advanced through instruments like the EU Trade Mark Regulation (EUTMR) and the Trade Marks Directive, which establish unified standards and procedures across member states. The EU Intellectual Property Office (EUIPO) enables a streamlined process for registration through a single application, offering rights across the entire EU. This integration extends to administrative appeal procedures and interagency cooperation among national trademark offices, ensuring consistent enforcement.

By contrast, international agreements like the Madrid Protocol and the Paris Convention have enabled broader but more limited harmonization, facilitating international trademark protection but without imposing uniform standards across jurisdictions. Each member country retains autonomy over its trademark laws, with the World Intellectual Property Organization (WIPO) providing a centralized system for international trademark applications but limited oversight in enforcement harmonization.

The episode examines how these varying degrees of harmonization impact brand owners, trademark practitioners, and regulators. It also discusses recent efforts toward administrative integration, such as shared examination databases and classification systems, which improve consistency while respecting local laws. Through these mechanisms, harmonization efforts seek a balance between efficient cross-border protection and the sovereignty of national legal systems.

This episode explores the evolving legal frameworks for protecting non-traditional trademarks, such as colors, shapes, sounds, smells, and holograms, under both Common Law systems and the European Union. Non-traditional trademarks challenge conventional standards for registrability and distinctiveness, creating unique legal landscapes in Common Law jurisdictions like the US and UK, as well as across the EU.

In Common Law jurisdictions, non-traditional marks can be registered, but applicants must meet stringent criteria. For example, color marks in the US require evidence that consumers directly associate the color with a specific source, as seen in Qualitex Co. v. Jacobson Products Co.. Shape marks and product packaging must also meet distinctiveness requirements and cannot be functional—a principle enforced in cases like TrafFix Devices, Inc. v. Marketing Displays, Inc. This functionality doctrine prevents any exclusive rights that could inhibit competition.

The EU takes a harmonized approach to non-traditional trademarks, regulated by the EU Trade Mark Regulation (EUTMR). The European Intellectual Property Office (EUIPO) allows non-traditional trademarks if they meet the requirements of being clearly defined, non-functional, and distinctive. Notably, the Libertel v. Benelux-Merkenbureau case established the criteria for color trademarks in the EU, requiring a clear and durable indication of the color claimed. For shapes, the KitKat case demonstrated how the EUIPO evaluates functional characteristics and distinctiveness in product design, underscoring the difficulty of achieving protection without strong consumer association evidence.

This episode concludes with a comparative analysis of the protection available in Common Law and the EU, highlighting recent developments, challenges, and emerging trends in non-traditional trademark registrations across these jurisdictions. Whether for brand expansion or protecting innovative designs, understanding the requirements and limitations for non-traditional trademarks is essential for businesses navigating today’s global IP landscape.

In this episode, we examine the evolution of trademark dilution law, comparing its origins and development in the United States and European Union. Trademark dilution protects well-known brands from uses that may weaken their distinctiveness or tarnish their reputation, even in the absence of direct competition or consumer confusion.

In the United States, the Federal Trademark Dilution Act (FTDA) of 1995 introduced dilution as a formal protection mechanism, later refined by the Trademark Dilution Revision Act (TDRA) of 2006. Under the TDRA, a trademark owner must prove that their mark is "famous" and show that the third-party use either blurs or tarnishes the brand’s distinctiveness. Landmark cases like Moseley v. V Secret Catalogue, Inc. and Tiffany v. eBay have shaped the interpretation of dilution, establishing that a likelihood of dilution, rather than actual dilution, is sufficient for protection under US law.

In the European Union, dilution protection is embedded within the EU Trade Mark Regulation (EUTMR) and the Trade Marks Directive. Unlike in the US, the EU framework allows broader protection for well-known marks, protecting against both "blurring" and "tarnishment" across all EU member states. A pivotal case, L’Oréal v. Bellure, established that third-party uses evoking the mental image of a well-known mark could amount to unfair advantage, thereby reinforcing EU standards on dilution.

The episode discusses the unique paths that the US and EU have taken toward trademark dilution, examining how each legal framework balances brand protection with free expression and market competition. Through prominent case law and statutory developments, this episode highlights the challenges in enforcing dilution law and the impact of cultural and economic differences on its application across these jurisdictions.