On March 22, 2017, the United States Supreme Court, in an opinion written by Justice Clarence Thomas in Star Athletic, LLC v. Varsity Brands, Inc., held that “a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two-or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work — either on its own or fixed in some tangible medium of expression — if it were imagined separately from the useful article into which it is incorporated.”[1] The Court set forth a new two-part separability test, resolving a split between circuit courts and upholding the previous Sixth Circuit decision that the stripes, chevrons and other visual elements of Varsity Brands’ cheerleading uniform are eligible for copyright protection.[2]  The Court noted that the Copyright Act does not protect “useful articles”[3] but that “the design of a useful article” may be “considered a pictorial, graphic, or sculptural feature” to the extent that “it can be identified separately from, and are capable of existing independently of the utilitarian aspects of the article.”[4] The Court specifically limited the scope of copyright protection, if any, to the designs, excluding the shape, cut and dimensions of the uniforms.[5] The decision also clearly emphasized that it was not deciding whether Varsity’s surface decorations are in fact copyrightable (i.e., satisfy the “modicum of creativity” standard set forth in Feist Publications, Inc. v. Rural Telephone Service, Co., 499 U.S. 341, 358-359 (1991)), and that this determination is remanded for the district court to decide.[6]
Continue Reading Who’s Got the Spirit?! Supreme Court Decides Star Athletic, LLC v. Varsity Brands, Inc.; New Two-Part Test Seeks to Clear Up the “Mess” But Questions Still Remain About the Subjective Nature of the Separabilty Analysis

From Apple Watches to Fitbits, the market for wearable technology has steadily increased over the years.  In 2015, just under 50 million wearable devices were shipped.[1]  Additionally, the wearables market is expected to increase 35% by 2019.  As the wearable technology trend increases, many companies are beginning to view wearables as a way to efficiently increase both employee health and productivity.[2]
Continue Reading Punching the Clock in the 21st Century: Could Your Bonuses and Promotions Be Determined By Wearable Tech?”

An appeal court in Frankfurt has asked the European Court of Justice to clarify the application of the competition rules to online sales. The Frankfurt court made its request in the context of a dispute between a leader in beauty products with an extensive portfolio of beauty brands and its German distributor. The supplier of beauty products operates a selective distribution system in Germany to manage how its products are sold and has taken its distributor to court for selling products over online platforms, such as Amazon.com and eBay. The Frankfurt court is seeking guidance from the European Court of Justice on whether a supplier can prohibit its distributor from selling its goods on online marketplaces, regardless of whether the distributor has met the criteria of the selective distribution system. This question is highly topical in the EU and particularly in Germany, where the German competition authority and the courts have recently taken divergent positions. The German competition authority has issued rulings prohibiting suppliers of branded goods from restricting internet sales by retailers and, in particular, over third party platforms such as eBay and Amazon.com. These rulings have been in contradiction with the stance taken by the German courts, such as the Higher Regional Court of Frankfurt, which recently decided that a branded manufacturer acted lawfully when banning its authorized retailers within its selective distribution system from selling its products on online marketplaces. According to the Higher Regional Court, a manufacturer has a legitimate interest in ensuring that its branded products are perceived as high-quality products sold with the requisite level of sales advice and a manufacturer is, therefore, free in principle to decide under which conditions its products are sold, provided that these conditions are necessary to meet its quality standards. It is expected that the European Court of Justice will issue its ruling on this issue within the next 15 months or so.

Continue Reading European Court of Justice to Rule on Legality of Online Sales Bans