Copyright laws - among others in Germany - and the great difficulties to know and assess what is allowed - and what is not. Stars like Elvis, Michael Jackson, Madonna and Lady Gaga are musical icons and partly already legends of music history.  They are everywhere in our daily lives – on the radio, in commercials and we find their fashion in lifestyle and VIP magazines. Copyright laws – among others - make such a financial commercialization possible. Copyrights grant  the creator of a “work”, for example, the composer of a song, several exclusive rights like the right to publish the song, be credited for the work,  to adapt the work to other forms and, most importantly, the right to copy the song and to determine who may perform the work and financially benefit from it. Similar rights are also granted other persons involved in the “creation” of the work, like the producer or performing artist who participate in the work. QUESTION(S): What happens if a copyright is infringed? How far can one go without violating copyrights? Do you already violate copyrights if you imitate your idol’s style – and, can you sing their songs out loud if the song remains as a catchy tune in one´s ear? Why are these questions and their answers so important? The violation and infringement of copyrights results in costly warning notices, cease and desist letters including undertaking commitments and/or (large) claims for damages. AS A RULE OF THUMB: The private use of copyright protected works in general does not constitute a violation of copyright laws. It is also allowed to reproduce few (!) copies for private usage without having to worry about legal consequences. Therefore, singing “What a beautiful day” under the shower in the morning does not infringe an existing copyright yet. Also, the presentation of one´s singing skills in front of close friends in the living room at home does not violate copyright law. However, everything going further than this is likely to be relevant to copyrights. A performance in public - and especially for the public - always requires the consent of the creator of the work and the participating actors. This is already the case, when the performance in the living room at home is put on YouTube. Consequently, it is advisable to either perform only one´s own music in public or to enquire very carefully and thoroughly which consents are necessary. But - for all fashionistas and fans of extravagant outfits of the stars: We have good news: You do not have to worry. Your Elvis-outfit does not have to disappear into your closet. The stars may be big trendsetters . However,  their outfits and their appearances on the red carpet do not constitute “works of art” according to (German) copyright law. The one or other exception may need to be made, e.g. Lady Gaga in her raw meat dress. But honestly – who wants to look like THAT?

The International Chamber of Commerce (ICC) together with its intitiative "Business Action to Stop Counterfeiting and Piracy" (BASCAP) has launched a unified consumer awareness campaign against counterfeiting. The campaign was officially launched by BASCAP and its global partners from around the world - incl. Germany's Anti-Counterfeiting Organization APM  who want to improve consumer awareness regarding the harms of counterfeiting and piracy. The aim and objective is to help consumers understand that counterfeit products are a real threat to health and safety, jobs and the economy. On its new website BASCAP and its partners from China, France, Germany, Italy, Japan, Kenya, Korea, Sweden, Russia, Spain, Ukraine and United States explain why "FAKES COST MORE" - and why consumers should "BUY REAL". Businesses and organizations around the world, such as the World Intellectual Organization (WIPO), the World Custom's Organization (WCO), the International Trademark Association (INTA) and many more are working together to make consumers aware that it is everyone's responsibility to STOP BUYING FAKES. Join the pledge: FAKES COST MORE - I BUY REAL as FAKES CAUSE CRIME - as one of the campain posters rightfully points out:

ANSWER: Intellectual Property (IP) Rights - including trademarks, designs, utility models & patents. The World Intellectual Property Organization (WIPO) just recently published its World IP Indicator 2011 Report. Fact is, that Intellectual Property (IP) Rights have experienced a growth rate that is breathtaking. - Patent filings grew by 7.2% - Trademark filings grew even more so by 11,8% in 2010 - compared to a 5.1% increase in global gross domestic product (GDP). The growth comes from the larger IP offices around the world - the number one being 1. China with an increase of 24.3%, followed by 2. the European Patent Office (EPO) with an increase of 12.2%, 3. Singapore at 11.9%, followed by 4. the Russian Federation at 10.2%. Special Highlight: TRADEMARKS - Germans file largest number worldwide The year 2010 brought about the largest growth at an increase of 11.8% in trademark applications and an increase of 21.4% in trademark registrations worldwide. An estimated 3.66 million applications were filed globally, whereas, WIPO reports that Germans filed the most. For more details see: Highlights WIPO IP Indicator Report For statistical overviews, charts etc. broken down by IP Rights, countries etc. see: Statistics The whole report with great and detailed information can be found at: Full WIPO IP Indicator Report 2011

For one night and for night only, Munich’s trendy restaurant „Salt“ was rebranded „LexDellmeier“ to celebrate our 2012 New Year’s Get-together. Together with about 70 guests we enjoyed “Salt” 's creative modern cuisine presented in a flying buffet by the restaurant owner Daniel Tenschert and his team. The restaurant’s interior design matched perfectly the firm’s affinity to intellectual property, exposing International furniture design classics, such as the ‘Medusa’ lamp by Mikko Paakkanen. Friends of our firm, business partners and collaborators seized the joyous atmosphere to network, chat and taste from “Salt” ’s selection of wines. Alexandra Dellmeier-Beschorner hosted the firm’s second New Year’s Get-together since the firm was founded and she promised that the event will become a bi-annual tradition. LexDellmeier expresses many thanks to all our guests for joining us and for contribution to a wonderful evening.               For more information about the venue, visit the website of  Salt

                                                                                      1. National Trademark Filings in Germany  The German Patent and Trademark Office (GPTO) in its Annual Report published the recent filing numbers of national trademarks applied for in Germany. Here is an overview of the number of trademark applications filed in 2007 - 2010: - 2010: 69,072 - 2009: 69,069 - 2008: 73,903 - 2007: 76,165 2. Top Trademark Filers With 147 trademarks, MIP METRO Group Intellectual Property GmbH & Co. KG headed the ranking of trademark applicants and owners listed by numbers of registrations in 2010. It was followed by Bayer AG (109 registrations) and Boehringer Ingelheim International GmbH (108 registrations). For more detailed information please see the GPTO's Annual Report 3. Germany: Quick Registration Process Important to know is that a German trademark is registered quickly. The GPTO has expedited and improved its examination process within the past two years. Registration on an average takes 6 - 8 weeks. However, by paying an extra 200 EURO official fees, the trademark applicant can request an "Expedited Request for Examination" at the GPTO. Thereby, the responsible GPTO Trademark Examiner reviews the application on an expedited basis. The German trademark application may be registered a lot quicker - usually within 2-3 weeks then. It is extremely important to have a registered trademark in place, because infringement action(s) can in general only be based on registered trademark (or e.g. design) rights. 4. Specialized Intellectual Property (IP) Courts in Germany Germany has specialized Intellectual Property Courts. This means that the judge(s) handling for example the trademark infringement cases are specialized in the fields of trademark, design, copyright, competition law etc. The responsible and called upon chambers (usually staffed with 3 judges at the Regional Courts) are experts in the field of IP and have a vast experience. 5. Preliminary Injuntions - a sharp weapon One of the sharpest weapons against trademark infringers and/or counterfeiters in Germany is the Preliminary Injuntion (PI). The trademark owner via a German attorney files a request for a PI with the responsible German court called upon. The court usually decides very quickly. In case the infringement is clear, usually no oral hearing takes place and the potential infringer in the majority of PI cases is not heard. The German court renders a decision which is granted usually with 2 - 3 days after the request has been filed. ANOTHER GERMAN SPECIALTY: Courts at German Trade Fairs Not known by many is the fact that at certain international and well-known trade fairs taking place in Germany (such as the International Toy Fair in Nuremberg - the largest toy fair in the world - and the annual CeBIT - one of the largest trade fairs with respect to computer technology in Hannover) set up an IP court right on the premises of the trade fair. The judges reside in an interim court office just for the duration of the trade fair. In case the infringement is given, the court may even render a decision in clear-cut cases within hours - and thereby help IP owners protect their rights - quickly, effectively - and in a cost-effective manner.

On 16 November 2011 LexDellmeier held a one-day seminar on the topic how the strategic creation, maintenance and defense of IP-rights can positively influence the company value. The first part of the seminar featuring as speakers Alexandra Dellmeier-Beschorner and Barbara Niemann Fadani of LexDellmeier dealt with the creation of strong IP-rights and global application and registration strategies as well as the new, mainly internet-based infringement problems (e.g. adwords, wild cards etc.)  and the  latest German and European case law in this regard. After a pleasant lunch, during which the attendees had the further occasion to discuss various "hot" topics with the speakers, the second part of the day started with an expert insight into the economic evaluation of trademarks.  Speaker Johannes Spannagl of  BrandNetworks explained in detail how his company has developed its own method of evaluating trademarks that is now recognized within Germany as one of three major evaluation methods. The last part of the seminar took a close look at the maintenance and the defense of IP-rights covering topics such as monitoring IP rights, defense strategies, coexistence agreements and preliminary injunctions. The day for the attendees from start-up companies and SME's ended with drinks and further "IP talk" at the cozy “Kaminbar” at the seminar venue.

LexDellmeier bietet Unternehmern und Unternehmen die Gelegenheit bei diesem Seminar tiefere Einsicht zu gewinnen, wie eine gekonnte Strategie bei der Schaffung, der Eintragung und dem Schutz von IP-Rechten den Unternehmenswert steigern kann. Weitere Informationen und das genaue Programm können Sie dem zum Download bereitgestellten Flyer entnehmen. Download Seminarflyer (pdf) Download Anmeldeformular (pdf)

Yves Saint Laurent may still sell his red-soled shoes.

As we had reported before on LexDellmeier’s „Not just another IP-Blog“, the famous luxury shoe brand Christian Louboutin had sued the just as famous luxury fashion brand Yves Saint Laurent for damages because of an infringement of Christian Louboutin’s trademark right of the Red Sole. With a preliminary injunction they wanted to stop Yves Saint Laurent from selling the shoes that featured a red sole.

The New York court has now decided in this preliminary injunction procedure in favor of Yves Saint Laurent finding that they can still sell their shoes.

Federal judge Victor Marrero stated: „Because in the fashion industry colour serves ornamental and aesthetic functions vital to robust competition, the court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection, even if it has gained enough public recognition in the market to have acquired secondary meaning.“ German Press reported that in spite of describing the glamorous effect of Louboutin’s Red Soles with nearly poetic words he did not see a right for the brand to exclude other shoe designers from using this element because there were “different reasons why they would do so”.

Until now it is difficult to evaluate what consequences this decision might have on the trademark rights of Christian Louboutin regarding the Red Sole. It has to be seen what will be decided in the main proceeding and on what grounds the decision will be based.

From a European perspective we find it particularly interesting if this decision really means a turning point in trademark law or if the findings of it will have mainly an inter partes importance considering that it regards to competitors with an equal reputation.

Even though the press coverage throughout the world gave the impression that Louboutin’s trademark right was gone and from now on everybody could use red soles, it still has to be seen if this verdict will open the doors to the use of red soles for every shoe designer. Especially producers of cheap no name copies who evidently try to exploit the fame of the luxury brand by copying their look might not get the same result in court proceeding as Yves Saint Laurent did, who on the contrary has no interest in looking like Louboutin and surely needs no limelight of others.

According to our opinion, there is also a great difference between simply pimping up a pair of no-name shoes by adding a red sole, as it happens so often on street markets or online auctions, and creating a sophisticated collection of uni-colored shoes in different colors (not only red), where the sole matches the color of the upper leather, as it was the case with Yves Saint Laurent. In the first case, an infringement seems very likely in second one, the red sole is maybe a mere decorative element with no reference to another trademark.

However, currently and according to our information, Christian Louboutin does have trademark protection for the "red sole" in place in various juristictions around the world. The first verdict from the US does not mean that other countries will automatically have the same opinion.

We are curious how this case keeps developing - and will keep you posted: To be continued…….

Our recommendation: Join the Munich conference to be held in English on 26 - 27 September 2011. For more information and reduced attendence fees for LexDellmeier Blog readers (special thanks you to the host of this outstanding conference, United Domains) - see links at the end of this article. On 20 June 2011 ICANN (Internet Corporation for Assigned Names and Numbers) has deliberated to launch the so called New Generic Top Level Domains (TLDs). New Generic Top Level Domains means that any word in any language can be used as a TLD. For trademark owners this new concept brings new possibilities, but also new risks. Instead of using your trademark a.e. ”LexDellmeier” under a TLD like .com or .de, the trademark itself becomes the TLD a.e. “something.lexdellmeier”. Sounds great? Yes, because in theory it gives the owner of a TLD infinite possibilities to expand and tailor the own web presence according to the needs, e.g. franchise owners, sales offices etc.. No, because it is not that easy to obtain a TLD and there are numerous legal questions that are unanswered and can potentially lead to conflicts of which the outcome is unpredictable. So how can one obtain a New Generic TLD? Getting a New Generic TLD is not as easy as registering a domain name under an already existing TLD such as a.e. “.com”. ICANN has established a very detailed procedure according to which a potential applicant has to apply to form and operate a New Generic TLD. That means, unlike any other domain registration, where an applicant can simply register what is still available, a New TLD will only be assigned to an applicant if ICANN assessed him to be suitable. How this assessment will take place is described in the 352 pages Applicant’s Handbook. The main elements of an Initial Evaluation are the quality of the string and the technical, operational and financial capacity of the applicant to operate a registry. According to the timeline published by ICANN the application period will begin on 12 January 2012 and will close on 12 April 2012. In the following the applications will be published on ICANN’s website and this is the moment when trademark owners, who see an infringement of their rights can object to the respective applications. The evaluation process is expected to last from 8 to 18 months. There are several stages that an application might be required to pass through prior to a final determination being rendered. The "basic" fee will be US$185,000. Applicants will be required to pay a US$5,000 deposit fee per requested application slot when registering. The US$5,000 will be credited against the evaluation fee. Needless to say that the existence of these New TLD leads to numerous legal and factual questions such as: What will happen if a.e. BMW registers “.auto” or “.car”? How will competitors like Audi react? What will happen to identical brandnames that are registered for different companies in different classes such as “Triumph”? What strategies will the companies adopt with regard to the New TLDs? Those and many more will be discussed in an upcoming conference in Munich  held in English on 26 and 27 September 2011. LexDellmeier will attend this high profile conference which will give background information on legal and technical aspects and opportunites to network. All trademark owners who are interested in obtaining a New Top Level Domain should attend. Click here to register your attendance.

Besides the traditional fields of trademarks, designs, copyrights, the attorneys at LexDellmeier also advise on media & web issues relating to intellectual property. Due to the expertise in the fields of IP, internet, media & web, LexDellmeier's founder, Alexandra Dellmeier-Beschorner, has just recently been appointed as an Expert in Group III of the European Economic and Social Committee (EESC). The EESC was created in 1957 and serves as an advisory and consultative board for the European Commission and the European Parliament. On 19 July 2011 the EESC's first meeting with respect to "The open internet and net neutrality in Europe" together with representatives from the European Commission and Parliament took place in Brussels. 1. What is net neutrality? The principle of net neutrality has not been defined in the EU yet. However, "net neutrality" in essence means that companies providing internet services should treat all sources of similar internet data (e.g. emails, VoIP, internetTV etc.) equally and not discriminate between different types of traffic for commercial motives. 2. The (potential) problem? Fact is, that countries, companies and network operators are restricting access to the public internet, or changing how it operates, for political, commercial or technological reasons. The burning question and hot topic in the EU - as well as in the US - is: Should "net neutrality" be defined, regulated and thereby be ensured for all users? A detailed study by the EU has been conducted and published in May 2011 with the title: "Network Neutrality: Challenges and Responses in the EU and in the U.S." 3. The EU Commission's current position According to the study, the EU Commission and Parliament is of the opinion that there is no evident threat that countries or operators are taking advantage of the internet and its possibilities to limit access in any way. In short: the position is that of a "wait and see"-one - which in essence is reflected as an opinion at the end of the above mentioned EU Study. If something happens or goes wrong, then the EU will react, define the terms "open internet" and "net neutrality" and what is allowed and what not. Currently, the position is that competition on the market and the existing telecommunications laws are sufficient in order to secure consumers' and users' interests. 4. The EESC's position In its first joint meeting on 19 July 2011 the EESC with its responsible Rapporteur from Portugal, Mr. Pegado Liz, with his technical expert, Mr. Pádraig Kenny, have drafted a Working Paper with the title "The open internet and net neturality in Europe" for consultation. Approx. 18 representatives and members from all of EESC's three groups (Group I, II and III), the EU Commission and EU Parliament attended the meeting to discuss the first draft. The EESC in its working paper (not published yet) is essentially taking a more proactive approach with respect to "net neutrality". Irregularities, e.g. the Dutch case regarding KPN and its public disclosure on possibly trying to circumvent the concepts of "net neutrality", have raised concerns among a large number of the EESC's members of not addressing the topic and not defining it. The first draft of the Working Paper - in essence favoring a more pro-active approach to tackling "net neutrality" as well as defining it and setting up principles has been discussed in detail. The second meeting on the Working Paper and its implemented revisions on the basis of the joint discussions of 19 July 2011 is on the EESC's agenda on 31 August 2011 in Brussels. LexDellmeier will participate in the further discussions, give expert input and will update its blog readers accordingly.