Monthly Archives: January 2017

There’s Still Time! Register for #INTAHONGKONG Today

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2017_aheadofthecurve_main_300Blog.jpgWe are one week away from the Anticounterfeiting Conference in Hong Kong! If you have not had a chance to register yet, now is the time! As Conference Co-Chairs, Sharmini Lohadhasan and I have assembled a tremendous array of experts that will be speaking on panels throughout the two day conference. 




Representatives from international brands, government officials, online platforms and others will be sharing tricks of the trade and best practices to stay ahead of the curve when fighting the counterfeiters. As Sharmini noted in an interview that was published in the INTA Bulletin, “the goal was to make sure this was not a typical conference about anticounterfeiting, but one where people get a practical view of the real life issues on the ground, at both an operational level and a policy one.” The speakers will focus on practical solutions and time tested approaches, as well and sharing information on new ideas and technologies to aid in the fight against counterfeiting. 




As if that’s not reason enough to attend, we will also get the first look at the INTA/BASCAP report on the Economic Impacts of Counterfeiting and Piracy, which will be officially released at the conference. But wait, there’s more! Immediately following the conference, there will be a one day workshop on Free Trade Zones. As we know, balancing the positive economic impact of free trade zones to promote employment and attract investment with the proliferation of illicit and counterfeit products in free trade zones is an ongoing struggle. INTA has created a series of one-day workshops to provide a forum for brand owners, free trade zone authorities, government officials, and other key stakeholders to share their concerns, best practices, and to work together toward solutions to combat the ongoing threat of counterfeiting in free trade zones. These workshops will be held several times throughout the year in different regions and the first one will be in Hong Kong immediately following the Anticounterfeiting Conference. Yet another great reason to make the trip to Hong Kong.




And what am I most excited about (other than the excellent programming)? The food, of course! Hong Kong is home to some of the finest restaurants in the world and I’m looking forward to trying out as many as I can while I am there—so come join Sharmini and I and all of our speakers as we work together in the ongoing battle against counterfeiting!







Published: 1/31/2017 11:28 AM
BlogTag: Counterfeit; Counterfeiting; Anticounterfeiting; Anticounterfeiting Committee; Hong Kong; China

Source: TM NEWS

INTA Interviews Brands and Fashion Conference Co-Chairs

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Conference Co-Chairs Jessica Cardon (Camuto Group, United States) and Marie-Laure Bonnaffous (Fendi Adele SRL, Italy) discuss the upcoming conference in this video interview. Learn more about session topics, who will be attending and the changing landscape of the fashion industry. Join us on March 22-23, 2017 in New York City for what promises to be an exciting event!

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For more INTA videos, please visit our YouTube page.







Published: 2/3/2017 7:05 AM
BlogTag: Fashion, Apparel & Accessories

Source: TM NEWS

INTA Interviews Anticounterfeiting Conference Co-Chair, Heather McDonald

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In the following video interview, Conference Co-Chair, Heather McDonald (Baker & Hostetler LLP, United States) discusses what attendees can expect at the upcoming Anticounterfeiting Conference: Staying Ahead of the Curve. During this two day event, registrants will learn tools and tips to fight counterfeiters and discuss best practices for developing a brand protection strategy. Join INTA on February 6-7 in Hong Kong for what promises to be an exciting event.   

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For more INTA videos, please visit our YouTube page.

 




Published: 1/30/2017 11:47 AM
BlogTag: Counterfeit; Counterfeiting; Anticounterfeiting; Anticounterfeiting Committee; Hong Kong; Programs

Source: TM NEWS

Police officers, Brady/Giglio, dishonesty, exoneration and just cause

A recent award by Arbitrator Micheal Falvo addresses all of these topics. Arbitrator Falvo sustained a grievance filed on behalf of a Champaign, Ill. police officer terminated after the State’s Attorney declared that she did not believe she could use him as a witness because of his disciplinary history, including  an allegation of dishonesty overturned in an earlier arbitration.

Officer Matt Rush began his employment with the City of Champaign in February 2010. Over the course of his employment he was the subject of several disciplinary actions. In March 2014 he was suspended for one day for failing to turn in a citation he had issued in connection with a traffic stop. He admitted he forgot to turn the ticket in and did not challenge the suspension. A second incident occurred in April 2014. Officer Rush was alleged to have engaged in unprofessional conduct in connection with his handling of a disturbance. He admitted using profanity and acknowledged he did not act professionally during this encounter. During the encounter Officer Rush twice kicked in the legs an individual who was refusing to get into the police vehicle. The Department agreed that the first kick was a reasonable use of force but maintained that the second was inappropriate. Rush was suspended for three days as a result of his conduct during this incident. A third incident occurred in May 2014 when Rush was accused of punching an individual he was attempting to subdue. He was also accused of dishonesty, i.e., falsely denying that he had thrown a punch. His employment was terminated as a result of these events.  Because of the claimed dishonesty the Chief sent the following letter to the State’s Attorney:

As required by law, I write to inform you of a recent disciplinary matter involving an officer of the Champaign Police Department. On August 8, 2014, Officer Matt Rush was charged with a violation of department policy wherein the offending behavior involved untruthful or deceptive representations. As you are aware, under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) and its progeny, the Champaign Police Department is required to disclose such information regarding the untruthfulness of law enforcement officers to prosecutors.

Please feel free to contact my office in the event that you have any questions regarding this matter.

Rush grieved the termination and in April 2015 Arbitrator Fredric Dichter issued an award finding the one and three day suspensions appropriate (but finding the claim regarding the second kick unsupported), but overturning the termination. Arbitrator Dichter concluded that “the only evidence [of a punch] is a blurry video taken from some distance away …” and found no evidence of malice or loss of temper but rather an effort to subdue an uncooperative person. The Arbitrator found this conduct, by itself, did not justify termination. Turning to “the other serious charge, dishonesty,” he concluded that while some viewing the dash cam video (including himself) may view the video one way, grievant “may very honestly be seeing it another.” Arbitrator Dichter noted:

Lying requires intent. Grievant is apparently wrong in his perception of what he did, but the Arbitrator finds it is based on his errant perception of events and not on an intent to deceive.

Concluding that discipline was warranted for grievant’s handling of the incident, but not for dishonesty, Arbitrator Dichter reduced the termination to a thirty day suspension

In accord with the award, Rush was reinstated to the Police Department. The Chief also sent another letter to the State’s Attorney enclosing a copy of the Arbitrator’s award.

In December of 2015 local media reported on several pending settlements of claims involving local police officers use of force, primarily involving Officer Rush. Examples are here, here, and here. In response to citizen demands that Officer Rush be prosecuted for claimed use of excessive force, the State’s Attorney conducted an investigation. On February 23, 2016 she informed the Chief of the results of her investigation and also issued a press release. While declining  to prosecute, she noted:

Although the State’s Attorney’s Office is declining to file criminal charges against Officer Matt Rush, in light of our review of Officer Rush’s actions and behavior during these incidents and in the light of the entirety of Officer Rush’s history of internal discipline for failure to adequately document use of force and untruthfulness, we are unable to use Officer Matt Rush as a witness for the prosecution in criminal cases. Officer Rush’s repeated discipline for failure to adequately document use of force and untruthfulness as outlined here and in other disciplinary actions reviewed in the course of this examination create a substantial issue with regards to his credibility as a state witness, subject him to cross-examination on these issues, and require the State’s Attorney’s Office to work around him in order to bring criminal cases to trial. Moreover, a review of these incidents cause us great concern about his judgement and decision making in crisis situations, particularly with regard to his response the mentally ill. In light of these concerns, having given this matter serious consideration and taking into account his full disciplinary history, we have concluded that if Officer Rush were to return to active duty, we will not call Officer Rush as a witness for the prosecution in criminal proceedings.

Upon receipt of the letter, the Chief conducted a fact finding with Rush and his Union, but ultimately terminated his employment because he believed his inability to testify made him “unable to perform the essential functions of [his] position.” This action was grieved and submitted to Arbitrator Falvo for resolution. After a comprehensive review of arbitration awards and case law, Arbitrator Falvo sustained the grievance and ordered grievant again be reinstated. The Arbitrator emphasized that except for the charge of dishonesty overturned by Arbitrator Dichter grievant had not been accused of or disciplined for untruthfulness. Noting the potential for “behind the scenes collusion,” Arbitrator Falvo concluded:

If a prosecutor is empowered with the unbridled and unreviewable discretion to deem an officer “disqualified” to testify — with the consequence that she loses her job because obviously there is no place in a police department for a law enforcement officer with that incapacity – contractual or statutory just cause protections are a nullity. An arbitrator would need to be more naïve than parties should expect not to realize that one must be alert to the danger that a losing party in a disciplinary arbitration will try to undo a disappointing result by finding an alternative path to reinstate what the arbitrator reversed. By no means is this to imply that a decision by a prosecutor that an officer will not be called testify that results in her dismissal cannot in the appropriate case meet the just cause standard. Rather, it means that an arbitrator’s non-delegable responsibility to determine whether just cause does or does not exist requires that he bring informed judgment to the case with the recognition that deference to the judgments of public officials cannot be blindly and uncritically ratified.

Regarding the positions articulated by the State’s Attorney, Arbitrator Falvo found that in light of Arbitrator Dichter’s conclusion that Rush had not engaged in intentional misrepresentation, her reliance on perceived Brady/Giglio obligations was misplaced.  He also found that the other reasons cited by her did not support a claim of just cause for the Officer’s termination. Arbitrator Falvo similarly rejected the Department’s reliance on the “well established doctrine of persona non grata” (typically used when a third party customer bars a bargaining unit employee from their premises).

Accordingly he ordered Rush’ reinstatement with back pay and the expungement of any reference to the disciplinary action in his personal records.

A third arbitration, arising from a different incident, also claimed by the Department to justify Officer Rush’s termination was scheduled for hearing but has since been settled. Pursuant to the settlement Rush waives reinstatement while the City agrees not to appeal Falvo’s decision.

Source: ADR

An overview of mediation and the insurance industry

Disputes are endemic in the insurance industry, and though better controlled now than in previous decades, room for improvement remains. Policy wording is increasingly consistent and less open to interpretation, but liability and converage disputes are encoded in the industry’s DNA.

Where disputes are so commonplace, it would be natural to assume that companies would look to ADR as a more efficient and effective means of resolving issues. While the insurance sector is a big user of arbitration for large commercial disputes, take up of mediation services remains relatively low, particularly in areas like personal injury, property and employment, where it might prove most useful. What’s more, the UK is certainly behind other jurisdictions, notably the US, in using mediation as a quicker and more cost-effective means of resolving issues.


Source: JAMS ADR

ICANN Working Group Moving Forward on Review of All Trademark Protections

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Since mid-2016, an ICANN Policy Development Process (“PDP”) Working Group (“WG”) has been moving forward to conduct a comprehensive review of all Rights Protection Mechanisms (“RPMs”) in all generic top-level domains (“gTLDs”). The WG launched after ICANN’s policymaking Generic Names Supporting Organization (“GNSO”) Council approved initiation of the PDP on February 18, 2016, and then adopted its Charter on March 15, 2016. 




While in formation, the members of the WG selected three individuals to act as co-chairs and share in the administration of its work—the author, who represents the Internet Commerce Association in the Business Constituency (“BC”); immediate INTA Past President J. Scott Evans, who likewise participates in the BC on behalf of Adobe; and Kathy Kleiman, an attorney who is active in the Non-Commercial Users Constituency (“NCUC”). To date, the three co-chairs have reached consensus agreement on WG plans and have rotated the chairing of its weekly calls. The WG is one of ICANN’s largest, with about 150 members from around the globe and an additional 80-plus observers, who receive all WG emails.




Charter Assignment




A WG’s Charter is essentially its Constitution, setting forth its assigned task and also placing limitations on its jurisdiction.




The key sections of this WG’s Charter read as follows:




This PDP Working Group is being chartered to conduct a review of all RPMs in all gTLDs in two phases: Phase One will focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. By the completion of its work, the Working Group will be expected to have also considered the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. 

At a minimum, in each Phase of this PDP, the Working Group is expected to first assess the effectiveness of the relevant RPM(s), for which the Working Group should seek the input of experienced online dispute resolution providers and other subject matter experts, as may be appropriate. The Working Group should also consider the interplay between and complementary roles of each RPM in seeking to more fully understand their overall functioning and effectiveness…

In the course of its work, the Working Group should monitor the progress of and, where appropriate, coordinate with, other ICANN groups that are working on topics that may overlap with or otherwise provide useful input to this PDP. In particular, this PDP Working Group shall maintain a close working relationship with the Competition, Consumer Trust and Consumer Choice (CCT) Review Team and the PDP Working Group on New gTLDs Subsequent Procedures.










As can be seen, the Charter requires the WG to consider the individual and collective effectiveness of all the “RPMs” created for the new gTLD program, and to recommend any desirable policy changes. Its work is to proceed in two phases, with the first focusing on the new gTLD program RPMs and the second on the first-ever comprehensive review of the Uniform Domain-Name Dispute-Resolution Policy (“UDRP”). And this WG must maintain a cooperative relationship with the CCT review mandated by the Affirmation of Commitments as well as the parallel WG on new gTLD Subsequent Procedures that is reviewing all non-RPM aspects of the Applicant Guidebook (“AG”) in preparation for possible subsequent rounds of the new gTLD program.




The Charter also contains an attachment listing dozens of potential issues and questions relating to those issues. The WG is now actively reviewing and consolidating those questions to assure a coherent and productive focus for its work.




Work Plan and Progress




In consultation with WG members, the co-chairs initially set out the following sequential work plan:




  • Post-Delegation Dispute Resolution Procedures (“PDDRP”), which allow rights holders to challenge a registry operator alleged to be directly infringing or actively encouraging second-level infringement
  • Trademark Clearinghouse (“TMCH”), a database of registered trademarks meeting threshold validity criteria
  • Sunrise registration rights, one of the two RPMs based upon TMCH registration and providing a trademark owner with the ability to register at a new gTLD prior to the opening of general availability
  • Trademark claims notice, generated to registrants seeking to register a domain matching a TMCH term and warning that such registration may be infringing
  • Uniform rapid suspension (“URS”), the new rapid and low-cost supplement to the UDRP designed to suspend domains where infringement is readily apparent
















So far, the WG has been generally adhering to its projected schedule, which contemplates completion of phase one and issuance for public comment of a preliminary report and recommendations just prior to the end of 2017. The UDRP review is expected to commence early in 2018, and no estimate has yet been made of how long it might take.




The WG completed its review of the PDDRP at an open session held during ICANN 57 in Hyderabad, India. Evaluation of the PDDRP was a challenge insofar as it is the one new RPM that has never been utilized. Nonetheless, the WG determined that the PDDRP should be retained and has tentatively agreed to create a means by which trademark owners with similar claims against a registry operator can bring a joint action and thereby share the costs of a proceeding.




Meanwhile, the WG has prepared a series of questions for both the provider and users of the TMCH and has begun its review of that trademark database, on which both sunrise registrations and claims notices depend.




Recently, the co-chairs also issued a joint memo stating their view “that the WG should undertake some notice and understanding of the blocking mechanisms, and any other additional RPMs that are being offered by registries or the TMCH as additions to the mandatory ICANN RPMs. We believe that market offerings provide additional information about the benefits and limitations of the RPMs, and that viewing the market holistically may spur better informed policy discussion within the WG.”




Those additional RPMs include:




  • The Ongoing Notifications service offered by the TMCH, through which it indefinitely provides notice to rights holders of any potential intellectual property infringement, beyond the original 90-day period. Notifications are available for exact mark matches and/or certain additional variations that are registered in a new gTLD. 
  • The voluntary extension by some registries of the claims service beyond the minimum of 90 days’ duration.
  • Protected Marks List blocking services offered by several portfolio new gTLD operators and which is suggested as an alternative to more costly sunrise registrations.










All of those additional mechanisms are based upon TMCH registrations and therefore, in the view of the co-chairs, are within the WG’s jurisdiction. They also interact with and influence the use of the ICANN-created RPMs.




Moving Forward




As can be seen, this WG has a large and very important task, and is still in the early stages of its efforts. There is still plenty of time to participate and make a contribution, and INTA members who are not already involved and who wish to become either an active WG member or a more passive observer should communicate their interest to the GNSO Secretariat. 




To learn more about INTA’s internet work, please visit the topic portal




Category: Internet
Published: 1/24/2017 7:02 AM
BlogTag: Internet; Internet Committee; gTLDs

Source: TM NEWS

News story: Regional policy vacancies at the IPO

This is an exciting time to join the Intellectual Property Office (IPO) as we embark on a new way of working!

In light of the evolving business support landscape, devolution agenda within England and the government focus on the role of local growth and “place”, the IPO is piloting a new scheme to embed a representative within a partner’s site. The objective is to develop and encourage local action and to build economic impact of IP. It will support and build on the work already ongoing within the regions and aim to stimulate effective IP commercialisation.

We will pilot two posts; one will be based within the Greater Birmingham & Solihull LEP the other within the Greater Manchester Growth Hub. Both posts will work across their respective regions to:

  • build and develop IP capability
  • ensure that IP is integrated into business and innovation support programmes at a local level

The post holder will join the IPO’s Business Support Policy team and work within the region to develop policy that ensures innovative businesses have the confidence to maximise the value of their IP assets and make a full contribution to the UK’s economic growth.

Full details of the roles and how to apply are available on the Civil Service Jobs website.

The closing date for applications is 3 February 2017.

For more information please email adminvacancies@ipo.gov.uk.

Source: UK IPO News

When a Monologue Becomes a Dialogue: Student Engagement at The Mother’s International School, New Delhi

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On December 22, 2016, INTA’s Unreal Campaign made a presentation at The Mother’s International School (“MIS”) in New Delhi. The MIS school was founded in the year 1956 and has been independently ranked as one of the top-ten public schools in India, and the best school in New Delhi. This was the first time that the Unreal presentation was delivered in India. Myself (Rachna Bakhru) and Ragini Kumar from RNA, IP Attorneys conducted the presentation for an audience of approximately 80 students, most of whom were 15- to 17-years-old. 




Ragini and I were given a 40-minute time slot with the grade 10 and 11 students at 8 am in the morning. A bit apprehensive, we realized that it could be a challenge to cultivate a discussion at 8 am on a cold winter day among high school students who had just finished their exams and were looking forward to their holiday break! Very soon, though, all our doubts were put to rest when we received a warm welcome from the students, who were filled with enthusiasm and keen interest right from the beginning of our presentation. 




We started off with the introduction of the Unreal Campaign and its objectives as well as an overview of INTA. In order to gauge students’ knowledge and engage them, we asked them what they understood counterfeiting to be. To our surprise, the students had a fair idea of what counterfeiting entails and the role of brands in our day-to-day life. 




India_2_011916.jpgWe then continued with basics of counterfeiting issues and the trademark law. Much to our delight, the students were very interested in the topic and asked us many pertinent questions about trademarks in general. The campaign’s videos of other students sharing their experiences with counterfeit goods helped our audience relate to the topic in a more personally relevant way. The challenging questions asked by the students advanced the presentation from an elementary level to a higher level of discussion. The students debated on the ethics of the significant difference in prices between original and counterfeiting goods, quality, and profits, etc. One student asked us “Why should I buy expensive goods when I can get the same for much less?” Another student brought up the point of student peer pressure to use only branded goods. Their insightful questions demonstrated that the presentation had stimulated their minds and had led them to be curious and inquisitive on the topic. 




We showed the students real-life examples of counterfeit goods seized by our firm during raids and asked the students to try to identify counterfeit products. The “real and fake” game we played with the students was enjoyed by all. We awarded small prizes for each correct answer and put a “thinking hat” on each student who found differentiating factors between the real and fake goods that were even beyond the pointers on the slides that indicated the more noticeable factors. 




The presenters invited students to join and follow Unreal Campaign on Facebook, Twitter, and YouTube.




The presenters received positive feedback from the teachers and students after the session. The Principal, Ms. Sanghamitra Ghosh, appreciated the intention behind the presentation and invited us to conduct more of such sessions with the students in the future to expand their horizons beyond the curriculum. 




It was a productive morning during which students expressed their interest in and asked many questions regarding counterfeiting activities and trademark law, protection, and enforcement of pertinent laws. The presentation became a truly interactive session with valuable input from teachers, students, and Unreal Campaign presenters. 




What a great beginning to the Unreal campaign in India!




If you are interested in becoming involved with the Unreal Campaign, please contact Laura Heery at lheery@inta.org. Thank you to our 2016 Unreal Campaign sponsors, Tilleke & Gibbins, that made this event possible. We look forward to working with our 2017 sponsors; CompuMark, IP4KIDS, Gucci, New Era Cap Co. and Tilleke & Gibbins.







Published: 1/20/2017 6:36 AM
BlogTag: Counterfeit; Counterfeiting; Anticounterfeiting; Unreal; Unreal Campaign; India

Source: TM NEWS