Category: United States

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T Minus 1 Year Until GDPR: Are You Ready for Take Off?

BOTTOM LINE It remains to be seen what will happen after the GDPR becomes effective on May 25, 2018. The GDPR compliance roadmap can be helpful for any organization that collects or processes personal data, whether or not an organization in or outside of the EU believes it is subject to the GDPR. With just … Continue Reading

Picking: A Few IP Collectibles Since My Last Post

There is a popular television show in the United States called American Pickers, which follow the adventures of antique and collectible “pickers” Mike Wolfe and Frank Fritz.  Wolfe and Fritz travel around in a van with the logo Antique Archeology to buy, or “pick,” various items for resale, for clients, or for their own personal … Continue Reading

Can You Register a Copyright on an Artistic Element in an Industrial Design?

Suppose that you have expressed your idea into a tangible form such as two-dimensional artistic elements incorporated into an industrial design.  Although your copyright exists upon the moment of creation, do you have a valid copyright?  Should you register your copyright on the two-dimensional artistic elements with the U.S. Copyright Office?  Can you stop a … Continue Reading

FTC TELLS INFLUENCERS TO DISCLOSE CONNECTIONS ON SOCIAL MEDIA

The Federal Trade Commission (FTC) sent more than 90 letters to celebrities, athletes and other influencers – as well as to marketers – highlighting the need for influencers to “clearly and conspicuously” disclose their relationships to brands when they promote or endorse them on social media. The FTC letters mark the first time that the … Continue Reading

Oh, Where Cases Like That Will Go: HOW A CEASE AND DESIST LETTER STOPPED THE PLAY BUT STARTED THE SUIT

Lombardo et al v. Dr. Seuss Enterprises, L.P., case number 1:16-cv-09974, in the U.S. District Court for the Southern District of New York, is an interesting case for intellectual property practitioners, especially those involved in copyright matters and curious as to how the parody/fair use discussion started in my last post for ILN IP Insider … Continue Reading

How to Avoid Having Your Patent Interpreted as a Covered Business Method (CBM) Patent

Suppose that you have an invention disclosure that uses computers and the Internet to carry out transactions that could include financial transactions? When you draft your patent application, is there anything that you can do to avoid having your patent application and resulting issued patent from being interpreted as a covered business method patent?  The … Continue Reading

U.S. Supreme Court Sets the Bar Higher for Obtaining Damages for Design Patent Infringement

Bottom Line:  The Supreme Court’s decision sets the bar higher for design patent holders to recover for infringement and opens the door to apportionment of damages. Parties looking to file for design patents will likely consider claiming their patents more broadly, in order to avoid the specter of reduced damages in the event the design … Continue Reading

USPTO Adopts New Regulations for Trademark Specimens of Use

Unlike the practice in many countries, in most cases the U.S. requires a trademark owner to place the mark into actual use in commerce and provide specific types of proof of use before the registration certificate will issue.  Similar requirements apply to the mandatory declaration of use to maintain or renew a U.S. registration.  Effective … Continue Reading

Maybe Axanar Could Klingon To Its Fair Use Defense In A Parallel Copyright Universe

On January 3, 2017, in Paramount Pictures Corp. v. Axanar Productions, Inc. et al., a United States District Court held that Axanar could not rely on a fair use defense during the upcoming trial over whether Axanar infringed Paramount’s copyright in the popular Star Trek television and motion picture franchise.  Axanar has an existing twenty-one … Continue Reading

PLEADING PATENT INFRINGEMENT IN THE UNITED STATES?

How do you plead patent infringement in the United States?  Can you survive a motion to dismiss if the defendant challenges the sufficiency of your complaint?  What should you do? Let’s say your client has a United States patent that is believed to be infringed by another party.  You do not rely on the client … Continue Reading

CALIFORNIA MEN PLEAD GUILTY TO $1.66 MILLION TRADEMARK SCAM

As often as we warn our clients about unscrupulous companies that prey on trademark owners using notices and invoices that appear to come from government agencies, these worldwide scams continue to reap large quantities of fraudulent proceeds.  The U.S. Patent and Trademark Office (“USPTO”) works in a variety of ways to alert the public to … Continue Reading

New Copyright Office Regulations Require Websites to Re-Register for DMCA Safe Harbor Protection

BOTTOM LINE Website operators and other online service providers must re-register their DMCA designated agents using the Copyright Office’s new online filing system by December 31, 2017 to avoid losing DMCA safe harbor protection. The Copyright Office recently implemented new regulations governing how websites and other online service providers must register a designated agent for … Continue Reading

Supreme Court Reverses Apple v. Samsung Design Patent Damages Award

On December 6, the Supreme Court reversed Apple’s $399 million patent infringement verdict against Samsung.  The decision – the first from the Supreme Court to interpret design patent damages since 1886 – arguably raises more questions than it answers. In a series of widely-publicized cases around the globe, Apple and Samsung have been battling over … Continue Reading

TTAB ADAMANTLY REFUSES TO CHANGE MARIJUANA TRADEMARK POSITION

When we last left the Trademark Trial and Appeal Board (“TTAB,” an administrative arm of the U.S. Patent and Trademark Office), they had issued a precedential opinion that registrations could not be issued for marks that covered the sale and use of marijuana products or paraphernalia primarily intended or designed for use in ingesting or … Continue Reading

IS YOUR TRADEMARK MERELY DESCRIPTIVE?

In the United States, a trademark can be refused registration on the Principal Register because the trademark is deemed merely descriptive.  If the trademark is not allowed for registration on the Principal Register, it may be eligible for registration on the Supplemental Register.  So, how do you determine if your mark is descriptive and which … Continue Reading

Food Fight and Road TRIPS!!!!!: Treaties And Product Names Getting Messy

Two words, uttered in a certain tone and with a certain speed, are apt to suggest a bit of wastefulness, a touch of anarchy, and yet a sense of communal participation.  Those two words, from Faber College of lore to present discussions of law: Food Fight!!!!!.  And, we see the long smoldering discussions of geographical … Continue Reading

SMOKE SIGNALS FROM SPECIMEN OF USE SUPPORT REGISTRATION REFUSAL FOR “HERB” SALES DESCRIBED IN APPLICATION

In a precedential opinion, the Trademark Trial and Appeal Board (“TTAB,” an administrative arm of the U.S. Patent and Trademark Office) affirmed the trademark examiner’s refusal to register HERBAL ACCESS for retail store services featuring “herbs.”  Although the application did not mention marijuana as one of the “herbs” being sold, applicant Morgan Brown’s specimen of … Continue Reading

Second Circuit Narrows ‘Red Flag Knowledge’ Exception to DMCA’s Safe Harbor Protections for ISPs

In a long-standing case brought against the video platform Vimeo by several music publishers, the U.S. Court of Appeals for the Second Circuit recently set the bar high for copyright owners to succeed in their infringement claims against service providers based on allegations of “red flag knowledge.” The Second Circuit, shedding some light on what is … Continue Reading

“…if you listen very hard…”: Stairway To Heaven Verdict May Have Unblurred Lines In Music Infringement Cases

Among the last few lines of Led Zeppelin’s rock ballad Stairway to Heaven are the lyrics “And if you listen very hard/The tune will come to you at last./When all are one and one is all…”  Spirit guitarist Randy Wolfe brought suit against Led Zeppelin for copyright infringement, apparently thinking that one did not even … Continue Reading

Implications of Brexit on Trademarks in the EU

The United Kingdom’s vote on June 23, 2016 to withdraw from the European Union has left many issues in flux, including the rights of owners of European Union Trademark registrations (EUTMs), formerly Community Trade Marks (CTMs). While details of the separation have yet to take shape, below are some points to keep in mind:… Continue Reading

Can a 3-D Work of Artistic Craftsmanship be Protected by a Copyright?

Suppose that you create a unique three-dimensional display. You find out that your competitor has copied your three-dimensional display. Can you claim that the design of the display is a three-dimensional work of artistic craftsmanship to apply for a copyright registration to enforce against your competitor? The answer may be YES! Under 17 U.S.C. § … Continue Reading
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