Category: United States

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The Catch-22 Of Litigating Your Trade Secrets Case Without Revealing The Secrets Themselves

“You mean there’s a catch?” “Sure there’s a catch,” Doc Daneeka replied. “Catch-22. Anyone who wants to get out of combat duty isn’t really crazy.” There was only one catch and that was Catch-22, which specified that a concern for one’s own safety in the face of dangers that were real and immediate was the … Continue Reading

NCAA Obtains Injunction Over “March Madness” and “Final Four” Trademarks

The U.S. District Court for the Southern District of Indiana sided with the National Collegiate Athletic Association (NCAA) and awarded a permanent injunction against game developer Kizzang Inc. (Kizzang) over a mobile and online game that infringed the NCAA’s trademarks “March Madness” and “Final Four.” Background The NCAA administers inter-collegiate sports across the United States … Continue Reading

Fair is foul, and foul is fair: How TV Eyes May Help Us See Through The Blurred Lines & Fog Around Fair Use

First Witch:     When shall we three meet again/In thunder, lightning, or in rain? Second Witch:  When the hurlyburly’s done,/When the battle’s lost and won. Third Witch:    That will be ere the set of sun. *** ALL:                 Fair is foul, and foul is fair:/Hover through the fog and filthy air. [MacBeth, Act 1, Scene 2] … Continue Reading

Trade Secrets as Part of Your IP Portfolio: The Case of Col. Sanders

Trade secrets, together with patents, trademarks, and copyrights, are one of the four main types of intellectual property.  Unlike the three other types of IP, trade secrets are never made public.  Trademarks and service marks are obtainable only through public use that creates an association between the mark and the origin of specific goods or … Continue Reading

FTC Announces First COPPA Action Involving Connected Toys

A Hong Kong-based electronic toy manufacturer and its U.S. subsidiary agreed to pay the Federal Trade Commission (FTC) $650,000 to settle allegations that they violated the Children’s Online Privacy Protection Act (COPPA) by collecting personal information from children without providing appropriate notice and consent, and by failing to take reasonable steps to secure the data … Continue Reading

Tomorrow Is Yesterday: Today’s Cases Boldly Going Where Our Blogs Have Gone Before

Sometimes blogging topics are hard to come by.  It is often difficult because, as a sage once noted in discussing the search for The Ultimate Computer, one wants to do one’s best, but something like creativity “doesn’t work on an assembly line basis. … You can’t simply say, today I will be brilliant,” insightful, informative … Continue Reading

Can Similar Trademarks Coexist Peacefully?

Suppose that you want to register a trademark that identifies a source of goods or services for your business.  You file a federal trademark application with the U.S. Patent and Trademark Office.  Subsequently, you receive an Office Action from the U.S. Patent and Trademark Office that initially refuses registration of your mark based on a … Continue Reading

Battling the Real “Fake News”: FTC Reaches Multi-Million Dollar Settlement with Internet Marketers for False Celebrity Endorsements

Unfortunately, the unauthorized use of a celebrity’s name and image has become a deceptive advertising practice frequently used by dishonest online marketers. This type of ad typically claims (falsely) that a public figure has used or endorsed what is billed as the latest miracle weight loss supplement or wrinkle-reducing cosmetic. Going after these bad actors … Continue Reading

“EACH DAY HAS A COLOR, A SMELL…”: Searching For New Trademark Worlds

The search for spices, and the gold that one expected to find nearby (or earn through sale of the spices), in many ways drove the Age of Exploration.  And spices still hold a special place in our economy and in our imagination; in fact, we believe that spices “all hold magic.” Part of that magic … Continue Reading

Can Trademarks Related to Cannabis be Protected?

Suppose that you want to federally register a trademark that identifies a source of goods or services related to your cannabis business.  What if the trademark covers merchandise indirectly related to cannabis or products directly related to the use of cannabis?  Should you attempt to register your trademark with the U.S. Patent and Trademark Office?  … Continue Reading

FTC Brings First Ever Enforcement Action Against Individual Social Media Influencers; Updates Warnings and Guidance for Influencers and Marketers

On the heels of issuing more than 90 letters to celebrities, bloggers and other influencers in April 2017, as well as receiving continued petitions by watchdog organizations such as Public Citizen, the Federal Trade Commission (FTC) brought its first direct action against individual influencers for failing to disclose their material connections on social media. At the … Continue Reading

Will It Be Known As “Michelin Star Athletica”?: Why The US Supreme Court May Have Given American Chefs A Reason To Cheer

Recent years have witnessed a surge in the United States in the appreciation for fine food and those who create it.  Indeed, the concept of the “celebrity chef” has taken such hold in the United States that there are entire television networks and countless magazines (on-line and in print) to cooking, recipes, chefs and the … Continue Reading

Win or lose, you pay PTO attorneys’ fees for challenging decisions in District Court

When the U.S. Patent and Trademark Office (“PTO”) rejects a patent application, the applicant has two options for judicial review. It can either appeal directly to the U.S. Court of Appeals for the Federal Circuit under 35 U.S.C. §141, or file a new (“de novo”) civil action against the Director of the PTO in the … Continue Reading

Extraterritorial Application of Unfair Trade Laws: Foreign Government Agencies May Restrict U.S. Companies from Exercising Their IP Rights in the United States

** Originally published by DRI in August 2017 edition of For The Defense ** Intellectual property laws are aimed at allowing intellectual property owners to hold rights in their property for a certain period of time to the exclusion of all others. Exclusivity is the essential purpose of intellectual property rights. Conversely, the essence of fair … Continue Reading

“…as best as your interests don’t conflict with mine”: Lawyers Fighting Over Intellectual Property

When one thinks about lawyers and Shakespeare, many recall the oft-quoted and misunderstood statement “the first thing we do, let’s kill all the lawyers.”  ‘Henry VI,” Part II, Act IV, Scene II, Line 73.  But my favorite, as a better reflection of the best of our lot, is: Sir, I shall not be slack; in … Continue Reading

Instagram Adds Paid Partnership Tool for Transparency

Instagram recently unveiled a new “branded content tool” that will allow influencers who are paid to endorse consumer products to tag partnering brands with an automated “paid partnership” disclosure. This new feature is intended to create more transparency in the Instagram community and to provide sponsors and influencers the ability to track the performance of … Continue Reading

Can Trademarks Violate Free Speech?

Suppose that you want to register a trademark that identifies a source of goods or services for your business.  What if the trademark may be scandalous or disparage a particular group of people?  Should you register your trademark with the U.S. Patent and Trademark Office?  Can you obtain a registration from the U.S. Patent and … Continue Reading

Matal v. Tam – Disparaging Trademarks are Registrable

It is well known that the trademark laws of the United States differ substantially from the trademark laws of countries around the world.  The United States Supreme Court recently clarified that ‘offensive’ trademarks are registrable, further differentiating the United States from the majority the world. Morality Refusals Many jurisdictions have prohibitions against registration of marks … Continue Reading

U.S. Supreme Court Invalidates Statutory Provision against Offensive Trademarks

Although U.S. common law trademark rights are gained through use of the mark in commerce (without registration), registration of a trademark with the U.S. Patent and Trademark Office (“USPTO”) provides the owner with additional rights and benefits.  These include nationwide enforcement of the mark against infringers; constructive notice of the registrant’s claim of ownership of … Continue Reading

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
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