NEWS


Aereo ruling divides US appeal judges


A US appeals court has rejected copyright owners’ attempts to ban Internet TV streaming site Aereo—but one judge said the service clearly breached US copyright law.


In a 2-1 decision on April 1, the US Court of Appeals for the Second Circuit upheld a ruling denying a preliminary injunction against Aereo, which allows subscribers in New York City to watch and record live TV.


Companies including Fox and Disney sued Aereo last year for infringing a number of rights. Te US District Court for the Southern District of New York denied an injunction, saying the plaintiffs were unlikely to win the case. Te plaintiffs appealed.


Judges Droney and Gleeson at the US Court


of Appeals relied on a case from 2008 called Cablevision, in which Cablevision, a cable television system, was sued aſter it split live TV streams into two, storing a second stream and making it available for later use.


In the Cablevision case, the US Court of Appeals found that the second stream did not infringe public performance copyright, saying that only the subscriber requesting a copy of a broadcast could view it—and no-one else.


On April 1, Judges Droney and Gleeson said that, as in the Cablevision case, when an Aereo customer watches or records a programme, Aereo’s system creates a unique copy of it and assigns it only to that user.


Te judges added: “When an Aereo user chooses to watch the recorded programme, whether (nearly) live or days aſter the programme has aired, the transmission sent by Aereo and


received by that user is generated from that unique copy. No other Aereo user can ever receive a transmission from that copy.”


Tey concluded: “Plaintiffs have not demonstrated that they are likely to prevail on the merits on this claim in their copyright infringement action. Nor have they demonstrated serious questions as to the merits and a balance of hardships that tips decidedly in their favour.”


But Judge Chin, who originally ruled against Cablevision but was subsequently reversed by the US Court of Appeals, wrote a dissenting opinion in the Aereo case, arguing that the site was “in clear violation of the Copyright Act”.


In particular, Chin disagreed with the


comparisons between Cablevision and Aereo, noting that Aereo’s lack of a licence meant it was infringing public copyright.


He said: “Its decision on Cablevision, in my view, conflicts with the text of the Copyright Act, its


legislative history, and our case law.”


Te Aereo case is expected either go back to the New York district court for a full trial or to be re-heard en banc, which would require the full US Court of Appeal (10 judges) to assess it.


“Although rare—en banc only happens once or twice a year—it does happen. I wouldn’t rule this out,” said Bruce Ewing, partner at Dorsey & Whitney LLP. “In Aereo, we have one judge who is unhappy and, although the other two relied on Cablevison, there was no ringing endorsement of the case.”


Asked whether he thought the case would be heard en banc, Ewing said: “I don’t know. Te question is whether the Cablevision case was rightly decided and, if it was, was this case [Aereo] different.”


He added: “Eventually, the Supreme Court


will have to address this or Congress will need to amend the Copyright Act. Te same issues


ITMA spring conference 2013: branding lessons from Burberry


Burberry’s resurgence aſter decades of brand dilution offers valuable lessons for businesses, according to Alexia Willetts, who was speaking at this year’s Institute of Trade Mark Attorneys spring conference.


Willetts, a trademark attorney at UK firm at Brandilicious Ltd, said the Burberry fashion house became a victim of its own success in the 1970s, struggling with brand distortion and counterfeiting for more than 30 years.


Established in 1856 as ‘Burberrys’, the company adopted revolutionary marketing strategies,


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making use of product placement in TV programmes and films in the 1950s, according to Willetts, who is not affiliated with Burberry, but carried out research into the company.


But Burberry became associated with football violence, a phenomenon that spread throughout the 1970s in the UK. By the 1980s, the brand had stretched too far, Willetts said, with the company launching products including alcohol, which are not traditionally associated with the brand.


Trademarks Brands and the Internet Volume 2, Issue 2


“Tere were lots of varying prices and products, uncontrolled licensors and parallel imports and grey market goods,” she said.


Burberry’s use by football hooligans and other criminal elements continued in the 1980s before Burberry suffered “massive” counterfeiting in 1990s, Willetts said. “Te brand had become chaotic.”


Despite rebranding, introducing new product lines and moving away from the traditional check look, the Burberry brand continued to suffer in the early 2000s.


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