NEWS Comcast NBC: the implications for IP


Comcast, the USA’s biggest cable TV operator, has completed its buyout of media company NBC Universal for $16.7 billion, in a deal that raises interesting IP questions.


Comcast already owned 51 percent of NBC but has now assumed full ownership of the company, paying off US conglomerate General Electric. Te deal was expected, with the companies agreeing to complete it before 2018.


While IP is not believed to be a key motivating factor behind the deal, as a result of the buyout cable distributor Comcast becomes a fully- fledged content creator,


either directly or


indirectly acquiring the rights behind NBC’s lucrative TV channels and movie shows.


“What is interesting is that the companies are in different IP positions—NBC is a content creator that is normally concerned with IP infringement whereas Comcast has, historically, been more of a distributor,” says Dale Cendali, partner at Kirkland & Ellis LLP, New York. “It’s a bit of an apples and oranges situation.”


Bruce Ewing, partner at Dorsey & Whitney in New York, adds: “Comcast has fully crossed over into the role of content creator. It’s a huge thing. Comcast has become one of the biggest global media companies through a process of vertical integration.”


How the acquisition affects the ownership of IP rights depends on how the deal was structured. Details of the deal are unknown but Cendali says that under a typical merger the company buying out the other would acquire all its IP rights.


But Ewing says NBC had already been operating as a successful specialist unit and he would be surprised if there are any major changes to copyright ownership.


“On the IP side, there would probably not have been too much due diligence, as NBC already operates successfully, so it’s


likely NBC will retain all its lawyers


and copyright. It’s difficult to know how the operations will work but I’m not sure that they would merge everything—NBC will probably stay separate because this business has been so successful.”


Either directly or indirectly—depending on


the deal—Comcast now has a vested interest in protecting copyright. One of


its prized deals,


which NBC won, is the $4.38 billion contract to air the next two Olympic Games in the US.


Cendali says: “To some degree, Comcast will have a heightened focus on piracy and be more concerned about copyright than before. But it doesn’t have to


Apple fights back after iPhone trademark defeat company Gradiente


Apple has filed cancellation proceedings against Brazilian


Eletronica’s


‘iphone’ trademark aſter its own application for exclusive use of the ‘iPhone’ mark was refused by Brazil’s industrial property office (INPI).


Apple has been selling the iPhone in Brazil since 2007, but on February 13 the INPI rejected its application for exclusive rights to the iPhone mark when selling smartphones because Gradiente had applied to register the mark ‘G Gradiente iphone’ in 2000—six years before Apple. Gradiente’s application was approved in 2008.


While Apple was refused registration for the mark in relation to smartphones, four of its applications to register the iPhone trademark for other goods, including soſtware and accessories, were granted.


Marcelo Cimento, INPI’s press advisor, said that as the INPI doesn’t have the authority to withdraw products from the market, the decision does not prevent Apple from selling its iPhone in


www.worldipreview.com


Brazil. But it does mean that Gradiente could sue Apple for trademark infringement for doing so.


In response to the INPI’s refusal, Apple filed trademark cancellation


Gradiente at the INPI on Wednesday. Under Brazilian


trademark law, proceedings against trademark


owners must make use of their trademark within five years of the registration date. As Gradiente did not start selling its G Gradiente iPhone until January 2013—just one month before this five-year period expired—Apple claims the mark should be cancelled on the basis of non-use and that Gradiente had registered the mark in bad faith.


Gradiente now has 60 days to prove use of the mark to INPI and Apple can choose to take the case to court or negotiate an out of court settlement.


Neither Apple nor IGB responded to requests for comment. But Rana Gosain, a partner at


re c r e a t e the wheel— NBC already


has copyright experts in this field.”


One of the more interesting sides to the deal covers ‘six strikes’


the pending anti-piracy


scheme, which is set to kick off in the US this year. Comcast is one of six US Internet providers


that has agreed to monitor and act against copyright infringement. One of the rights holders’ groups that is working with the providers is NBC Universal, through its subsidiary Universal Studios.


Tis means, in effect, that Comcast is now protecting its own copyright rather than that of others. It will be interesting to see how Comcast will treat infringement of its own rights compared with those of other companies.


“Tere could be an increased level of copyright enforcement but it’s hard to say,” says Ewing. “What’s important is that Comcast is now a global media company that will have to protect its IP across the world.” 


Daniel Advogados in Rio de Janeiro, said that Gradiente is in a strong position to dispute Apple’s accusations.


“From what I understand, Gradiente has been struggling economically since 2000, so this may excuse why it didn’t launch an iphone sooner. Tis also gives Gradiente a strong argument in retaliation to Apple’s accusations of bad-faith registration,” he said.


“I don’t know how [the INPI] will look at it but if you consider the registration from a first-to- file perspective, Gradiente is in a very strong position,” he added.


Gosain said he would not be surprised if Gradiente filed an injunction to stop Apple selling its iPhone in Brazil, but added that the case is likely to end in a settlement.


“And if they do settle, it will be for big money, because this is a big mark,” he said. 


Trademarks Brands and the Internet Volume 2, Issue 1 7


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