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Don’t SULKA: Trademark Plaintiff Must Demonstrate Intent, Ability to Use Mark

The US Court of Appeals for the Second Circuit affirmed the dismissal of a complaint seeking a declaration of trademark abandonment, finding that the plaintiff (the co-owner of an online business that sells to customers in...more

CBD Products in the Time of COVID-19: Best Practices for Making Your (Trade)mark

In the midst of an unprecedented and unsettling global pandemic, one constant remains: certain entrepreneurial-minded folks will not miss the opportunity to file trademark applications for new “brands” that align with the...more

11th Circuit Tells Guitar Maker to Take a [Pantera] Walk on Delayed Copyright Claims

Affirming a summary judgment in favor of defendant, the US Court of Appeals for the Eleventh Circuit determined that a copyright infringement lawsuit pertaining to the graphic design on a guitar made famous by a late heavy...more

Supreme Court: Profit Disgorgement Available Remedy for Trademark Infringement, Willful or Not

In a unanimous decision, the Supreme Court of the United States confirmed that a plaintiff in a trademark infringement suit is not required to show that a defendant willfully infringed the plaintiff’s trademark as a...more

Federal Circuit Confirms Color Marks of Certain “Character” Can Be Inherently Distinctive for Product Packaging

Reviewing a decision from the United States Patent and Trademark Office (“USPTO”) Trademark Trial and Appeal Board, the Federal Circuit vacated and remanded the Board’s refusal to register a trademark consisting of a gradient...more

Color Marks Can Be Distinctive for Product Packaging

Relying on Supreme Court precedent, the Federal Circuit overturned the USPTO’s refusal to register a multi-color trademark for product packaging, holding that color marks can be inherently distinctive depending upon the...more

4/15/2020  /  Color Marks , Trademarks , USPTO

Ninth Circuit Gleefully Rejects Copyright Claims against California High School

Affirming a district court’s summary judgment in favor of various defendants, including the vocal music director and parent volunteers at Burbank High School (whose competitive show choirs reportedly inspired the television...more

SCOTUS Sinks the CRCA, Confirms States Are Immune from Copyright Suits

A unanimous decision from the Supreme Court of the United States in Allen v. Cooper affirmed a previous ruling by the US Court of Appeals for the Fourth Circuit and held that states cannot be sued for copyright infringement,...more

Ninth Circuit Shows Led Zeppelin a Whole Lotta Love in ‘Stairway’ Copyright Win

Ruling en banc, the US Court of Appeals for the Ninth Circuit reinstated a 2016 jury verdict, finding that the rock band Led Zeppelin and the opening notes of its hit song “Stairway to Heaven” did not infringe the 1967 song...more

Street Art Street Smarts: Second Circuit Applies VARA, Affirms Moral Rights

The US Court of Appeals for the Second Circuit affirmed that plaintiffs-appellees’ temporary artwork had achieved appropriate stature to be protected by the rarely invoked Visual Artists Rights Act of 1990 (VARA), and that an...more

Special Report - 2019 IP Law in Review - Trademarks

Trademark jurisprudence in 2019 may be best summarized in two words: questions and answers. Decisions handed down at the district court level have teed up key questions that are poised to be answered by the United States...more

Cookie Crumbles Against Injunction Granted to Terminated Trademark Licensee

Concluding that a terminated exclusive trademark licensee failed to establish the elements required to impose a preliminary injunction, the US Court of Appeals for the 10th Circuit reversed the district court’s grant of a...more

Ninth Circuit Preserves LinkedIn Competitor’s Data-Scraping Rights

The US Court of Appeals for the Ninth Circuit affirmed a preliminary injunction forbidding professional networking platform LinkedIn from denying data analytics company hiQ access to publicly available LinkedIn profiles. HiQ...more

That’s Bananas: Third Circuit Examines Copyright Protection Under Star Athletica

Applying the Supreme Court of the United States’ 2017 decision in Star Athletica v. Varsity Brands regarding the copyrightability of non-utilitarian sculptural design features (IP Update, Vol. 20, No. 4), the US Court of...more

A Tale of Two (or 33) Copyrights: Calculating Statutory Damages

Addressing § 504(c)(1) of the US Copyright Act, which permits an award of statutory damages in lieu of actual damages for copyright infringement, the US Court of Appeals for the Seventh Circuit considered a question of first...more

Immoral No More: SCOTUS Strikes Down Ban on Registration of Offensive Trademarks

In a 6–3 opinion, the Supreme Court of the United States affirmed a 2017 US Court of Appeals for the Federal Circuit decision holding the ban on registration of immoral or scandalous trademarks under the Lanham Act to be an...more

Copyright Infringement Claims Precluded by Plaintiff’s Own Patent Lawsuit

The US Court of Appeals for the Ninth Circuit affirmed in part and reversed in part the district court’s dismissal of claims of copyright infringement, violation of the Digital Millennium Copyright Act (DMCA) and breach of...more

No Jury Trial for Trademark Infringement Claims

In finding a fair use defense and no “likelihood of confusion” in a cosmetics trademark infringement dispute, the US Court of Appeals for the 11th Circuit also considered, as an issue of first impression, whether the Seventh...more

SCOTUS Strikes Down Ban on the Registration of Offensive Trademarks

A 6-3 opinion from the Supreme Court of the United States in Iancu v. Brunetti affirmed a Federal Circuit 2017 decision. Both rulings found the ban on the registration of immoral or scandalous trademarks under the Lanham Act...more

No Vicarious Liability Absent Financial Benefit, Even in Context of Contributory Infringement

The US Court of Appeals for the Ninth Circuit examined issues of vicarious and contributory infringement—along with willfulness—in connection with a copyright infringement case involving a real estate website that featured...more

BOOKING.COM Is Not Generic: Fourth Circuit Addresses Protection for “.com” Trademarks

Affirming the district court’s summary judgment ruling on the protectability of the trademark BOOKING.COM, the US Court of Appeals for the Fourth Circuit weighed in on the somewhat controversial issue of the genericness of a...more

TTAB Must Consider All Relevant DuPont Factors

Reviewing a decision from the Trademark Trial and Appeal Board (TTAB), the US Court of Appeals for the Federal Circuit vacated and remanded the TTAB’s affirmation of an examining attorney’s refusal to register the trademark...more

Second Circuit: No First Sale Doctrine for Reproduced Digital Files

Holding that reproduction of a digital file for purposes of resale does not fall under the “first sale” doctrine of the Copyright Act, the US Court of Appeals for the Second Circuit affirmed the district court’s grant of...more

Second Circuit Joins Majority in Applying Octane Fitness to Lanham Act

In a fight involving sales of mattresses and alleged trash talking pertaining to those mattresses, the US Court of Appeals for the Second Circuit joined the Third, Fourth, Fifth, Sixth, Ninth and Federal Circuits in holding...more

Ramble on Back to Court: Led Zeppelin Can’t Shake “Stairway” Infringement Claims

In a dispute alleging that legendary rock band Led Zeppelin copied “Stairway to Heaven” from a song by a different band, the US Court of Appeals for the Ninth Circuit vacated in part a judgment in favor of Led Zeppelin,...more

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