• Lindsay Lohan sues Rockstar Games for using her image in a video game

Latest news from the US is that Lindsay Lohan is suing games developer Rockstar Games in New York over using her likeness for a character called ‘Lacey Jones’ claiming that the character in the video game depicts Ms Lohan’s image, voice and styles from her clothing line. This sends a clear message to games developers and publishers to ensure they do proper clearance checks. A comparison can be drawn with a UK action taken by Lady Gaga against Mind Candy who was intending to release a song by their Moshi Monsters’ game character ‘Lady Goo Goo’. In that case, Lady Gaga had to rely on her registered trade mark rights because the UK does not recognise image rights.  It will be interesting to see whether Rockstar can raise a parody defence in the US litigation, reminding us that the UK is still waiting for its own parody defences to come into force. The UK legislation was meant to come into effect in June 2014, but has been delayed contributing to continued uncertainty within the creative industry. 

  •  Apple’s shifting patent strategy 

Many have been very interested in the recent move by Apple to acquire Beats Music (a subscription based music streaming service) and Beats Electronics (the headphone manufacturers) for $3.2 billion. Many have speculated that this was a move to bolster Apple’s music business and making it more competitive against its rivals such as Spotify.  However, little lip service has been given to the sudden deviation in Apple’s patent filings, published the day after Apple announces the acquisition of Beats, illustrating new developments in the hardware side of the business. Specifically, they have sought to protect new technology in headphones such as power efficient noise cancelling headphones, ‘presence sensors’ in headphones and a multimode sensor to allow for two users to share one pair of headphones but listen to different music. This sudden departure from some of Apple’s normal patent filing practices relating to the mobile phone industry (as seen in international litigation over the years with Samsung, HTC and Nokia), shows us that Apple is putting its money where its mouth is by protecting its revived business venture into the music industry.  

  • Console manufacturers plan to enter China market 

Since the recent lift of a 14 year ban on consoles being sold in China, the major console manufacturers have been making announcements to enter the market.  Sony have joined forces with China's Shanghai Oriental Pearl Group (a company listed as one of the 50 pivotal large-scale enterprises by the Shanghai government); Microsoft have announced plans to release the Xbox One in collaboration with BesTV New Media Co; and Nintendo is making plans to release a brand new, cheaper console for emerging markets. Although everyone is getting excited about this new market opening up, there is also elevating concerns about how a market which has previously only known freemium or PC based games (with only access to video game consoles on the black market) is going to react to the introduction of legitimate games consoles. Even though there have been significant advances in China trade mark law allowing for bad faith registrations to be pulled off the register  and copyright claims on behalf of the rights holder being increasingly successful  (see stats on China here–www.ciela.cn), it is thought that the best cure is prevention. Systems such as Sony’s Playstation Now service will put them in good stead in preventing IP infringement in future. 

In the previous edition of our Technology Newsletter we suggested that this Supreme Court case would get to grips with the issue of software patents in the USA.  Sadly this was somewhat optimistic.  The Court agreed that the patents in question (an electronic escrow service for financial transactions) were not valid.  But they effectively refused to offer any guidance on what software can be patented.  On the bright side, it is now clear that broadly claiming the rights to common ideas like hedging risk or using a third party to reduce settlement risk is not going to get you a valid patent.  Beyond that, the waters remain as uncharted as ever.