HBO’s trademark strategy for HOUSE OF THE DRAGON

Is it necessary for a television series title to be registered as a trademark?

The question is rhetorical and the answer is clearly yes. The reason for this is related to the potential additional profit that can be generated if the series becomes popular. Trademark protection is crucial in such cases because it can prevent someone else to start using the title for commercial purposes not only for TV series but for many other merchandising products and services such as cosmetics, jewelry, clothes, toys, foods, drinks, entertainment, etc.

A good example of this strategy is the one used by HBO related to their last top series HOUSE OF THE DRAGON a prequel to Game of Thrones. The new series is liked by the fans with an IMDB rating of 8.6.

Although the series has launched recently, HBO started to file trademarks around the world for this title 2 years ago.

The TMView database shows 41 trademarks HOUSE OF THE DRAGON filed or registered in many countries around the world for classes such as 3, 14, 16, 18, 21, 25, 28, 32, 33, and 43 that covers amongst other cosmetics, jewelry, clothes, toys, drinks, etc.

Apart from this, in order to solidify its position, HBO filed different national trademarks in specific languages different from English. One example of this is a Bulgarian trademark for ДОМЪТ НА ДРАКОНА (House of the Dragon) for classes 9, 25, 41.

Such trademark portfolio allows HBO full control of the title exploitation for commercial purposes everywhere which by itself is a good base for lucrative licensing deals.

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TV Formats with copyright protection in Italy

The Italian Supreme Court has issued a decision that some TV formats can take advantages of copyright protection.

As it is well-known many countries around the world don’t acknowledge specific copyright protection for TV formats mainly because they don’t fit well in the definition for such protection.

In the Italian case, however, the court considers these formats as eligible for copyright protection if they can meet some requirements such as identification of the structural elements of the story, as well as its space and time collocation, the main characters and the main thread of the plot. In addition, the structure must be repeatable and possessing at least a modicum of creativity.

More information here.

Source: IP Kat.

Streaming devices – an EU Court decision

The European court ruled in case C‑527/15, Stichting Brein v Jack Frederik Wullems. This case concerns the following subject matter:

Stichting Brein is a Netherlands foundation for the protection of the interests of copyright holders.

Mr Wullems sells, on a number of internet sites, including his own site http://www.filmspeler.nl, various models of a multimedia player. That player, sold under the name ‘filmspeler’, is a device which acts as a medium between, on the one hand, a source of visual and/or sound data and, on the other hand, a television screen.

On that player, Mr Wullems installed an open source software, which makes it possible to play files through a user-friendly interface via structured menus, and integrated into it, without alteration, add-ons available on the internet, created by third parties, some of which specifically link to websites on which protected works are made available to internet users without the consent of the copyright holders.

Those add-ons contain links which, when they are activated by the remote control of the multimedia player, connect to streaming websites operated by third parties, some of which give access to digital content with the authorisation of the copyright holders, whilst others give access to such content without their consent. In particular, the add-ons’ function is to retrieve the desired content from streaming websites and make it start playing, with a simple click, on the multimedia player sold by Mr Wullems connected to a television screen.

As is clear from the order for reference, Mr Wullems advertised the ‘filmspeler’ multimedia player, stating that it made it possible, in particular, to watch on a television screen, freely and easily, audiovisual material available on the internet without the consent of the copyright holders.

On 22 May 2014 Stichting Brein asked Mr Wullems to stop selling the multimedia player. On 1 July 2014, it brought an action against Mr Wullems before the referring court seeking an order that, in essence, he stop selling multimedia players such as ‘filmspeler’ and offering hyperlinks that give users illegal access to protected works.

Before the referring court, Stichting Brein submitted that, by marketing the ‘filmspeler’ multimedia player, Mr Wullems made a ‘communication to the public’, in breach of Articles 1 and 12 of the Law on copyright and Articles 2, 6, 7a and 8 of the Law on neighbouring rights. Those provisions must, it submitted, be interpreted in the light of Article 3 of Directive 2001/29, which they transpose into the Netherlands law. The referring court considers, in that regard, that the case-law of the Court does not make it possible to answer with certainty the question of whether there is a communication to the public in circumstances such as those at issue in the main proceedings.

In addition, before the referring court, Mr Wullems submitted that streaming broadcasts of works protected by copyright from an illegal source was covered by the exception listed in Article 13a of the Law on copyright, which must be interpreted in the light of Article 5(1) of Directive 2001/29, which it transposes into Netherlands law. According to the referring court, the Court has not yet given a ruling on the meaning of the requirement of a ‘lawful use’ within the meaning of Article 5(1)(b) of Directive 2001/29.

In those circumstances, the Rechtbank Midden-Nederland (District Court, Midden-Nederland, Netherlands) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1) Must Article 3(1) of Directive 2001/29 be interpreted as meaning that there is “a communication to the public” within the meaning of that provision, when someone sells a product (multimedia player) in which he has installed add-ons containing hyperlinks to websites on which copyright-protected works, such as films, series and live broadcasts are made directly accessible, without the authorisation of the right holders?

(2) Does it make any difference

– whether the copyright-protected works as a whole have not previously been published on the internet or have only been published through subscriptions with the authorisation of the right holder?

– whether the add-ons containing hyperlinks to websites on which copyright-protected works are made directly accessible without the authorisation of the right holders are freely available and can also be installed in the multimedia player by the users themselves?

– whether the websites and thus the copyright-protected works made accessible thereon — without the authorisation of the right holders — can also be accessed by the public without the multimedia player?

(3) Should Article 5 of Directive 2001/29 be interpreted as meaning that there is no “lawful use” within the meaning of Article 5(1)(b) of that directive if a temporary reproduction is made by an end user during the streaming of a copyright-protected work from a third-party website where that copyright-protected work is offered without the authorisation of the right holder(s)?

(4) If the answer to the third question is in the negative, is the making of a temporary reproduction by an end user during the streaming of a copyright-protected work from a website where that copyright-protected work is offered without the authorisation of the right holder(s) then contrary to the “three-step test” referred to in Article 5(5) of Directive 2001/29?’

The Court’s decision:

1.      The concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as covering the sale of a multimedia player, such as that at issue in the main proceedings, on which there are pre-installed add-ons, available on the internet, containing hyperlinks to websites — that are freely accessible to the public — on which copyright-protected works have been made available to the public without the consent of the right holders.

2.      Article 5(1) and (5) of Directive 2001/29 must be interpreted as meaning that acts of temporary reproduction, on a multimedia player, such as that at issue in the main proceedings, of a copyright-protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder does not satisfy the conditions set out in those provisions.

 

Breaking news – retransmission of TV content- an EU Court decision

The European court ruled in case C‑275/15 ITV Broadcasting Limited, ITV2 Limited, ITV Digital Channels Limited, Channel Four Television Corp., 4 Ventures Limited, Channel 5 Broadcasting Limited, ITV Studios Limited versus TVCatchup Limited, TVCatchup (UK) Limited, Media Resources Limited.

This case concerns the following:

The appellants in the main proceedings are commercial television broadcasters who own copyright under national law in their television broadcasts and in the films and other items which are included in their broadcasts. They are funded by advertising carried in their broadcasts.

TVC offered an internet television broadcasting service, permitting its users to receive, via the internet, ‘live’ streams of free-to-air television broadcasts, including television broadcasts transmitted by the appellants in the main proceedings. Following TVC’s being put into administration, its business and services are now carried on by TVC UK, under a licence granted by Media Resources Limited.

The appellants in the main proceedings instituted proceedings against TVC before the High Court of Justice (England & Wales),  for breach of their copyright. That court referred a request for a preliminary ruling concerning the interpretation of the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29 to the Court of Justice.

Following the judgment of 7 March 2013, ITV Broadcasting and Others (C‑607/11, EU:C:2013:147), the High Court of Justice (England & Wales), found that TVC had infringed the copyright of the appellants in the main proceedings by communication to the public. As regards three television channels, namely ITV, Channel 4 and Channel 5, that court found, however, that TVC could rely on a defence under section 73(2)(b) and (3) of the CDPA.

The appellants in the main proceedings brought an appeal before the referring court. TVC UK and Media Resources Limited were added as respondents to the proceedings before the referring court.

The referring court explains that section 73 of the CDPA provides a defence to an action for infringement of copyright in a broadcast or in any work included in a broadcast, applicable ‘where a wireless broadcast made from a place in the United Kingdom is received and immediately re-transmitted by cable’. It states that the defence at issue before it does not concern section 73(2)(a) and (3) of the CDPA, under which, inter alia, the copyright in the broadcast is not infringed ‘if the re-transmission by cable is in pursuance of a relevant requirement’, but solely section 73(2)(b) and (3) of the CDPA, under which copyright is not infringed ‘if and to the extent that the broadcast is made for reception in the area in which it is re-transmitted by cable and forms part of a qualifying service’.

Taking the view that section 73 of the CDPA should be interpreted in the light of Article 9 of Directive 2001/29, the Court of Appeal (England &Wales) (Civil Division) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘On the interpretation of Article 9 of [Directive 2001/29], specifically of the phrase “this Directive shall be without prejudice [to provisions concerning] in particular … access to cable of broadcasting services”:

(1)  Does the quoted phrase permit the continued application of a provision of national law with the scope of “cable” as defined by national law, or is the scope of this part of Article 9 determined by a meaning of “cable” that is defined by EU law?

(2)  If “cable” in Article 9 is defined by EU law, what is that meaning? In particular:

(a) Does it have a technologically specific meaning, restricted to traditional cable networks operated by conventional cable service providers?

(b) Alternatively, does it have a technologically neutral meaning which includes functionally similar services transmitted via the internet?

(c)  In either case, does it include transmission of microwave energy between fixed terrestrial points?

(3)  Does the quoted phrase apply (1) to provisions which require cable networks to retransmit certain broadcasts or (2) to provisions which permit the retransmission by cable of broadcasts (a) where the retransmissions are simultaneous and limited to areas in which the broadcasts were made for reception and/or (b) where the retransmissions are of broadcasts on channels which are subject to certain public service obligations?

(4) If the scope of “cable” within Article 9 is defined by national law, is the provision of national law subject to the EU principles of proportionality and fair balance between the rights of copyright owners, cable owners and the public interest?

(5)  Is Article 9 limited to the provisions of national law in force at the date on which the Directive was agreed, the date it entered into force or its last date for implementation, or does it also apply to subsequent provisions of national law which concern access to cable of broadcasting services?’

The Court’s decision:

Article 9 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, and specifically the concept of ‘access to cable of broadcasting services’, must be interpreted as not covering, and not permitting, national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations.

You can watch the next World Cup free? – Може да гледаме следващото световно първенство по футбол свободно?

Европейският съд излезе с едно изключително интересно решение по делото между FIFA,UEFA и Европейската Комисия.
Според законодателството на ЕС ( Council Directive 89/552), когато едни състезания, като Световното или Европейското първенство по футбол представляват сериозен обществен интерес, то съответната държава членка може да наложи ограничения на телевизионните оператори, така че тези състезания да бъдат излъчвани безплатно. Целта е максимално голям брой хора да могат да ги гледат.
Това означава, че тези състезания трябва да бъдат излъчвани, така че всеки да може да ги гледа, а не това да става само по определени платени канали.
Преди време Белгия взима решение, че Световното първенство по футбол трябва да се излъчва свободно в страната без необходимост от плащане на каквито и да е било такси.
Великобритания решава същото, като добавя и Европейското първенство.
Европейската комисия потвърждава това решение на двете държави, като отговарящо на европейското законодателство.
FIFA и UEFA завеждат дело срещу ЕК.
Според решението на Европейския съд подобна позиция на Белгия и Великобритания е напълно законна. Тя не уврежда комерсиалните права на FIFA и UEFA да печелят от организирането на тези състезания.
Изискванията на двете държави тези първенства да бъдат излъчвани свободно отговарят на правото на обществеността да получи важна за нея информация без каквито и да е било ограничения.
Повече за това решение може да откриете тук.
информация на IP Kat.

English version

The European Court came out with a very interesting decision in the case between FIFA, UEFA and the European Commission.
According to EU legislation (Council Directive 89/552) when some events such as World or European Football Championship pose a serious public interest then the Member State may impose restrictions on broadcasters, so these competitions to be broadcast free of charge.
This means that these tournaments should be broadcast so that everyone can watch them instead to have to pay for certain TV channels which broadcast it.
Some time ago, Belgium decided that the World Cup to be broadcast freely in the country without payment of any fee or charge.
Britain decided the same adding and the European Championship.
The European Commission confirms the decision of both countries that is in accordance with European legislation.
FIFA and UEFA bring suit against the EC.
According to the decision of the European Court a similar position in Belgium and the UK is perfectly legal. It does not harm the commercial rights of FIFA and UEFA to benefit from organizing these events.
Requirements of both countries, these championships to be broadcast freely meet the public’s right to obtain important information about her without any restrictions either.
More about this decision can be found here.
information to the IP Kat.