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# TheTMCA.com

Legal Developments in the World of Trademarks, Copyrights, Advertising and Beyond

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## Posts

- [Leaning Toward Commonality: States Enact New Comprehensive Consumer Data Privacy Laws](https://www.thetmca.com/leaning-toward-commonality-states-enact-new-comprehensive-consumer-data-privacy-laws/) - The year 2023 will likely go down in history as a major inflection point in the enactment of comprehensive consumer data privacy laws in the United States. At the beginning of the year, only five states (California, Virginia, Colorado, Utah, and Connecticut) had enacted comprehensive consumer data privacy laws. And, of these, only the California
- [Supreme Court’s Jack Daniel’s Decision Clarifies That Traditional Trademark Use “Does Not Receive Special First Amendment Protection,” Even When it Has Expressive Message](https://www.thetmca.com/supreme-courts-jack-daniels-decision-clarifies-that-traditional-trademark-use-does-not-receive-special-first-amendment-protection-even-when-it-has-expressive-messa/) - Humor matters, but it’s not the most important thing when considering a trademark infringement or dilution claim. In a decision with references to The Hangover Part II, Aqua’s song “Barbie Girl” (good luck not getting that stuck in your head if you grew up in the 90’s…), Tommy Hilfiger, and Harley-Davidson, the Supreme Court clarified
- [FIFA’s Strict Trademark Enforcement: Could the Trademark Fair Use Exception Apply to the World’s Game?](https://www.thetmca.com/fifas-strict-trademark-enforcement-could-the-trademark-fair-use-exception-apply-to-the-worlds-game/) - The 2026 World Cup is in full swing across the U.S., Canada, and Mexico. FIFA closely guards the intellectual property surrounding the World Cup, including word marks associated with the tournament and even the trade dress of the official trophy. But FIFA’s strict enforcement of its IP rights could restrict the ability of businesses to
- [Innovation at the USPTO! New Agentic AI and Image Search AI Features Seek to Improve the Trademark Application and Examination Process for Applicants and Examiners](https://www.thetmca.com/innovation-at-the-uspto-new-agentic-ai-and-image-search-ai-features-seek-to-improve-the-trademark-application-and-examination-process-for-applicants-and-examiners/) - The noise around AI adoption in the legal industry has reached deafening levels. Seemingly every other week one of the major players such as Anthropic, Harvey, or Legora announces a new model, plugin, platform, or tool to improve legal workflows, or a law firm announces firmwide adoption of the same. In some cases, law firms
- [New Bird on the Block: Operation Bluebird and X Corp.’s Fight over Twitter Trademarks](https://www.thetmca.com/new-bird-on-the-block-operation-bluebird-and-x-corp-s-fight-over-twitter-trademarks/) - Operation Bluebird, Inc. (“Bluebird”) and X Corp. are locked in a dispute over the future of the Twitter brand, stemming from the platform’s rebrand from “Twitter” to “X” in 2023. The TMCA covered the rebrand. In December 2025, Bluebird filed a petition with the Trademark Trial and Appeal Board (the “Board”), seeking to cancel X
- [Dorsey Takes London: Highlights from the INTA Annual Meeting](https://www.thetmca.com/dorsey-takes-london-highlights-from-the-inta-annual-meeting/) - The Dorsey Trademark, Copyright + Advertising team and the IP Litigation team attended the 2026 International Trademark Association Annual Meeting in London. The Dorsey team was represented by seventeen attorneys from Dorsey’s Minneapolis, Denver, Seattle, Dallas, New York, London, Hong Kong, and Beijing offices. We thoroughly enjoyed our time in London and want to share
- [Can AI Author Copyrightable Work? The Supreme Court Just Declined to Say Yes](https://www.thetmca.com/can-ai-author-copyrightable-work-the-supreme-court-just-declined-to-say-yes/) - As artists and creators integrate artificial intelligence (AI) tools into their work, courts are re-evaluating traditional notions of authorship under the Copyright Act of 1976. This past March, the issue of whether an AI system may qualify as an “author” under the Copyright Act reached the United States Supreme Court. In denying certiorari in Thaler v.
- [Intellectual Property in Video Games, Part I: Trademarks and Characters](https://www.thetmca.com/intellectual-property-in-video-games-part-i-trademarks-and-characters/) - Wherever innovation occurs, intellectual property follows. Intellectual property (or “IP”) refers to trademarks, copyrights, patents, and trade secrets: the legal framework that safeguards the ownership of brands, artistic works, and inventions. The term has become so synonymous with progress and novelty that in the increasingly mainstream video game industry, “IP” has also become shorthand for
- [China’s Revised Anti-Unfair Competition Law (AUCL 2025): Expanding the Definition of “Acts of Confusion” in the Digital Era](https://www.thetmca.com/chinas-revised-anti-unfair-competition-law-aucl-2025-expanding-the-definition-of-acts-of-confusion-in-the-digital-era/) - In China, the Revised Anti-Unfair Competition Law (AUCL 2025) came into effect on October 15, 2025. Although there are various amendments, this update focuses on Article 7, which corresponds to Article 6 of the 2019 version, and introduces significant changes aimed at addressing digital misuse of trade identifiers and an enhanced legal framework for resolving
- [Can I Borrow Your E-Book?: A Brief Discussion of Controlled Digital Lending](https://www.thetmca.com/can-i-borrow-your-e-book-a-brief-discussion-of-controlled-digital-lending/) - Perhaps lost in all of the commentary and handwringing over AI and what to do with the works it creates is how we care for copies of human-authored works. The concept of controlled digital lending (or CDL) raises significant questions for publishers, authors, and readers, particularly when it comes to the scope of the exclusive
- [Second Circuit Calls Foul On Unauthorized Use of Michael Jordan Video](https://www.thetmca.com/second-circuit-calls-foul-on-unauthorized-use-of-michael-jordan-video/) - Michael Jordan is best known for his offensive skills, but his defense was an underrated aspect of his play; he was 1998 Defensive Player of the Year, after all. So it’s fitting that he features prominently in a recent decision from the Second Circuit Court of Appeals in which three (or maybe two) defenses to
- [Data Protection Reform: Changes in the UK Data (Use and Access) Act 2025 and the EU Digital Omnibus Regulation Proposal](https://www.thetmca.com/data-protection-reform-changes-in-the-uk-data-use-and-access-act-2025-and-the-eu-digital-omnibus-regulation-proposal/) - Eight years on from the introduction of the GDPR, both the United Kingdom and the European Union appear to be taking on board the calls from the business community for reform and for a fairer balance between individual data protections and the need for less burdensome restrictions on businesses. In the UK, this has come
- [KLUTCH vs. KLUTCH – A Cleveland Trademark Battle](https://www.thetmca.com/klutch-vs-klutch-a-cleveland-trademark-battle/) - Klutch Sports Group is a well-known sports management company that was founded in his home city by Cleveland native Rich Paul and that represents – most famously – LeBron James (also born and raised in Ohio). Klutch Sports owns a family of trademarks for the KLUTCH name, as well as rights in various KLUTCH logos,
- [The UK Government Consults on Proposed Reforms to Design Laws](https://www.thetmca.com/the-uk-government-consults-on-proposed-reforms-to-design-laws/) - A consultation process proposing extensive reforms to the framework for design protection in the United Kingdom has come to a close on 27 November 2025. One of the stated objectives of the proposed reforms is to tackle a legal system for the protection of designs that some commentators argued is “a complex patchwork that many
- [End Run Around Claimant Yields Big Win for Sports Mark](https://www.thetmca.com/end-run-around-claimant-yields-big-win-for-sports-mark/) - A recent United States Court of Appeals for the Federal Circuit (“Federal Circuit”) decision highlighted the importance of litigation strategy. In 2023, the Trademark Trial and Appeal Board (“Board”) granted Uninterrupted IP LLC’s (“UNIP”) request to cancel a trademark registration held by Game Plan Inc. (“Game Plan”) and found that UNIP had priority over Game
- [Has Miss Betty Boop Boop-Oop-a-Dooped Into The Public Domain? Sort of.](https://www.thetmca.com/has-miss-betty-boop-boop-oop-a-dooped-into-the-public-domain-sort-of/) - Fans of the iconic Betty Boop character have taken to social media to share their dream celebrity casting for Miss Boop now that Dizzy Dishes, the six-minute cartoon that first featured the Betty Boop character, has entered the public domain. However, fans may be disappointed to learn this entrance into the public domain doesn’t make
- [Stay in Your Lane: Fifth Circuit Sends Dispute over Self-Driving Cars to Israel](https://www.thetmca.com/stay-in-your-lane-fifth-circuit-sends-dispute-over-self-driving-cars-to-israel/) - In OSR Enters. AG v. REE Auto., Ltd., the Fifth Circuit recently ruled that, under the doctrine of forum non conveniens, a trade secret dispute originally filed in federal district court in Texas will have to be decided by an Israeli court. The Court’s decision is a good reminder that while there is a strong
- [A Reminder From The Rolling Stones: Brands Are Not Free to Do What You Want Any Old Time on Social Media](https://www.thetmca.com/a-reminder-from-the-rolling-stones-brands-are-not-free-to-do-what-you-want-any-old-time-on-social-media/) - Last week, ABKCO Music & Records, Inc. filed suit against BEHR Paint Company over an Instagram post on the brand’s account that included The Rolling Stones song Paint It, Black. The post was from 2022, but ABKCO claims to have only discovered it recently. The post has now been deleted. According to the complaint, BEHR
- [Ninth Circuit Revives Trademark Dispute After Monster Energy Refused to Throw in the Towel](https://www.thetmca.com/ninth-circuit-revives-trademark-dispute-after-monster-energy-refused-to-throw-in-the-towel/) - The Ninth Circuit recently revived Monster Energy Company’s (“Monster Energy”) trademark and trade dress dispute against a company that markets camping equipment under the mark 4MONSTER. Monster Energy owns the well-known MONSTER word mark, related “M Claw” logos, and the green-and-black trade dress used with these trademarks (the “MONSTER Marks”). The MONSTER Marks are widely
- [Take a Bite Out of This: Smuckers is Claiming Exclusive Rights to its Version of the Peanut Butter and Jelly Sandwich](https://www.thetmca.com/take-a-bite-out-of-this-smuckers-is-claiming-exclusive-rights-to-its-version-of-the-peanut-butter-and-jelly-sandwich/) - We all have childhood memories of it: the sweet tang of fruit jelly mixed with the salty crunch of rich peanut butter, sandwiched between two pieces of soft sliced bread. Maybe you preferred it with the crusts on, cut along the diagonal, or with no crusts at all, cut into four square servings. Or maybe
- [Creator Earns Commission on TikTok: New Guidance on Effective Influencer Disclosures](https://www.thetmca.com/creator-earns-commission-on-tiktok-new-guidance-on-effective-influencer-disclosures/) - Earlier this year, we blogged about effective influencer disclosures on Instagram. Our attention is now on TikTok with the help of a recent decision from the National Advertising Division. On October 13, 2025, the NAD released its decision in a challenge brough by Niagen Bioscience against Reus Research regarding its Cata-Kor NAD+ Core and Cata-Kor
- [Customs and Border Protection Training: a Quick Wrap-Up](https://www.thetmca.com/customs-and-border-protection-training-a-quick-wrap-up/) - Members of the Dorsey Trademark, Copyright + Advertising team recently attended a presentation by U.S. Customs and Border Protection (“CBP”). CBP is the federal law enforcement branch responsible for keeping counterfeit and infringing products from crossing into the United States, including products that violate trademark and copyright protections. Here are a few of the highlights
- [China Raises Evidentiary Threshold for Filing Non-Use Trademark Cancellations](https://www.thetmca.com/china-raises-evidentiary-threshold-for-filing-non-use-trademark-cancellations/) - In May 2025, the China National Intellectual Property Administration (CNIPA) released updated Guidelines on applications for three-year non-use cancellation actions against registered trademarks (Updated Guidelines). A key change is that the evidentiary threshold for petitioners to commence a three-year non-use cancellation action is now significantly higher than before. In the past, to meet the initial
- [Trade Secret Protection for Music? Wu-Tang’s <i>Once Upon a Time in Shaolin</i> Could Open New Doors for Monetizing Art](https://www.thetmca.com/trade-secret-protection-for-music-wu-tangs-once-upon-a-time-in-shaolin-could-open-new-doors-for-monetizing-art/) - In a recent ruling, U.S. District Judge Pamela K. Chen opened a new realm of possibilities for trade secret protection. Judge Chen’s order acknowledges that, at least in very rare circumstances, an album of music, even one that has been sold, can in fact be a trade secret under federal and New York law. The
- [VETEMENTS ou Non? The Foreign Equivalents Doctrine](https://www.thetmca.com/vetements-ou-non-the-foreign-equivalents-doctrine/) - A recent petition for a writ of certiorari filed with the United States Supreme Court brings into question the application of the doctrine of foreign equivalents. Under the doctrine of foreign equivalents, a trademark consisting of a foreign word with a merely descriptive English translation can be denied registration on the basis of descriptiveness. Similarly,
- [Sales of “Own-Brand” Goods Meet The Use Requirements for “Retail Services”](https://www.thetmca.com/sales-of-own-brand-goods-meet-the-use-requirements-for-retail-services/) - The Fourth Board of Appeal of the European Union Intellectual Property Office (“EUIPO”) in the case of Rituals International Trademarks B.V. v Zheni Aleksieva confirmed that retail trade relating to ‘own-brand’ goods may constitute genuine use of a trade mark registered for retail services in class 35. The decision in a case concerning the RITUALS
- [Trader Joe’s Bags A Victory At The Ninth Circuit](https://www.thetmca.com/trader-joes-bags-a-victory-at-the-ninth-circuit/) - Last year we reported on the Trader Joe’s labor union’s success in dismissing a trademark infringement action that Trader Joe’s had filed against the union, Trader Joe’s United, in the Central District of California. At the time, we noted that Trader Joe’s had appealed the dismissal to the Ninth Circuit. That turned out to be
- [Will the Real OpenAI Please Stand Up?](https://www.thetmca.com/will-the-real-openai-please-stand-up/) - As you may have noticed, it is nearly impossible to use the internet today without encountering artificial intelligence (or, in common parlance, AI) in one form or another. This has largely resulted from the proliferation of AI tools, generative AI platforms, and the discourse surrounding them. Perhaps the most famous of these generative AI platforms
- [Don’t Get Duped: The Rise of “Dupe” Litigation in the United States](https://www.thetmca.com/dont-get-duped-the-rise-of-dupe-litigation-in-the-united-states/) - If you’ve scrolled on social media, set foot in a popular retailer, or have a teenager in your life, it’s likely you’ve heard the term “dupe” (short for “duplicate”) to describe affordable alternatives to high-end products such as handbags, makeup, and even furniture. Indeed, one need only conduct a cursory search on Amazon or the
- [When it Comes to the View, Will the Cubs Play Ball?](https://www.thetmca.com/when-it-comes-to-the-view-will-the-cubs-play-ball/) - Watching a Cubs game from a nearby rooftop sounds like an ideal afternoon. At Wrigley Field, it became a business. For years, rooftop owners near the stadium sold tickets, served food and drinks, and offered fans a unique vantage point to watch the Cubs play. If the neighborhood business started like a friendly game of
- [Federal Circuit Finds <i>Sua Sponte</i> is Not a Good Vintage](https://www.thetmca.com/federal-circuit-finds-sua-sponte-is-not-a-good-vintage/) - Legal decisions, like fine wine, should be balanced. The Federal Circuit recently corked a non-precedential TTAB decision that ECHO D’ANGÉLUS was not confusingly similar to ECHO DE LYNCH BAGES, where both were used for wine, because the TTAB relied on a concept that no party to the case had argued. In deciding the opposition, the
- [Spotlight or Lawsuit? Strategic Brand Use in Film and Media](https://www.thetmca.com/spotlight-or-lawsuit-strategic-brand-use-in-film-and-media/) - A. Blue Devil in the Details: When Logos Steal the Scene When The White Lotus returned to HBO for its third season, it came with the usual dose of dramatic tension, along with one unexpected intellectual property wrinkle. [WARNING - Potential Plot Spoiler Ahead!] In a particularly intense scene, a character wearing a Duke University
- [Labubu and La-No-No: Navigating Trade Dress in Plush Toys](https://www.thetmca.com/labubu-and-la-no-no-navigating-trade-dress-in-plush-toys/) - Most companies would love to have their product become a viral sensation, but in the age of viral media and “internet dupes,” companies are forced to fire on all cylinders to successfully secure and defend the intellectual property rights when one of their products takes off unexpectedly. Just look at the newest internet-sensation plush toy:
- [ER and The Pitt-falls of a Frozen Rights Provision](https://www.thetmca.com/er-and-the-pitt-falls-of-a-frozen-rights-provision/) - Michael Crichton, author, director, and visionary created works that resonate today like Jurassic Park, Twister, Westworld, and ER. Now, his estate is suing the production team and leading actor of the newly released medical drama known as The Pitt for being a knock-off of ER. The lawsuit alleges a breach of contract action against Warner
- [Sharing the Stage: How <i>Tempo Music Investments LLC v. Miley Cyrus et al</i> Reinforces Copyright Co-owner Rights](https://www.thetmca.com/sharing-the-stage-how-tempo-music-investments-llc-v-miley-cyrus-et-al-reinforces-copyright-co-owner-rights/) - A recent ruling from the United States District Court for the District of Central California in the lawsuit against Miley Cyrus and others for the song “Flowers” highlighted the power that a single copyright co-owner holds in protecting their interest. The Court denied a motion to dismiss brought by Cyrus and her co-defendant song writers
- [23andMe Sparks Lawmaker Race to Protect Genetic Data in Bankruptcy](https://www.thetmca.com/23andme-sparks-lawmaker-race-to-protect-genetic-data-in-bankruptcy/) - When direct-to-consumer genetic testing company 23andMe Holding Co. and its affiliates (together, “23andMe”) filed for chapter 11 bankruptcy on March 24, 2025, they possessed data from over 15 million customers. Specifically, 23andMe possesses genetic data obtained from analysis of DNA in saliva samples customers provide for analysis and interpretation of their ancestry traits and genetic
- [INTA in Sunny San Diego: A Quick Wrap-Up](https://www.thetmca.com/inta-in-sunny-san-diego-a-quick-wrap-up/) - The Dorsey Trademark, Copyright + Advertising team is back from the 2025 International Trademark Association Meeting. It was one for the books. We mixed and mingled with old and new colleagues and as well as our friends from around the world. In between all the meetings and social events, we did manage to attend a
- [New Guidance on Fake Reviews in the UK—What Consumer Businesses Need to Know Under the DMCC Act 2024](https://www.thetmca.com/new-guidance-on-fake-reviews-in-the-uk-what-consumer-businesses-need-to-know-under-the-dmcc-act-2024/) - The UK Government has issued important guidance on fake reviews, clarifying new obligations for businesses under the Digital Markets, Competition and Consumers Act 2024 (the “DMCC Act”). The Competition and Markets Authority (CMA) now has enforcement powers to act directly against violations of the legislation, including imposing significant financial penalties (without having to act through
- [If Approved, Employers May See AI Employment Discrimination Regulations in California Go into Effect this Summer](https://www.thetmca.com/if-approved-employers-may-see-ai-employment-discrimination-regulations-in-california-go-into-effect-this-summer/) - California workplaces may finally see new regulations addressing the use of artificial intelligence (AI) – specifically automated-decision systems (ADS) –in the employment context go into effect this summer. After years of proposed legislation fizzling out and proposed regulations undergoing several revisions, one agency – the California Civil Rights Council (CRC) – voted on March 21,
- [Reintroducing the No FAKES Act](https://www.thetmca.com/reintroducing-the-no-fakes-act/) - A bipartisan Bill aiming to protect individuals from having their voice and visual likeness used without their consent was reintroduced in Congress earlier this month. The Nurture Originals, Foster Art, and Keep Entertainment Safe (No FAKES) Act, was first introduced last year as a response to various celebrities having their image and voice used by
- [To Recuse or Not to Recuse? An Update.](https://www.thetmca.com/to-recuse-or-not-to-recuse-an-update/) - Given that litigation in the United States can take years from start to finish, we rarely see a conclusion to the cases we follow. In a prior blog post, we looked at the potential recusal requirements of the U.S. Supreme Court when one—or even six—Justices have a personal, professional, or financial interest in the parties
- [Tips on How to Shape Up Your Influencer Advertising Program: The NAD Reviews Skims’ Instagram Posts for Proper Disclosures](https://www.thetmca.com/tips-on-how-to-shape-up-your-influencer-advertising-program-the-nad-reviews-skims-instagram-posts-for-proper-disclosures/) - For years now we’ve been blogging about how much the FTC and even the SEC on occasion love scrolling Instagram posts to see what influencer are up to. This post is about another three letter organization who likes to scroll to confirm advertiser and influencer compliance with the FTC’s now very well-known Endorsement Guides. If
- [Compassion in Registration: A Lesson in Filing Narrow Trademark Applications](https://www.thetmca.com/compassion-in-registration-a-lesson-in-filing-narrow-trademark-applications/) - Identical trademarks can coexist, as the Trademark Trial and Appeal Board once again emphasized when it overturned the refusal of a COMPASSION IN ACTION mark. The Board’s decision is both a lesson in strategically narrowing an application’s services and a cautionary tale of how to build out the record for an appeal. Namchak Foundation filed
- [Generative AI and the Copyright Office – Part 2 of Long-Awaited Guidance, But Will It Continue?](https://www.thetmca.com/generative-ai-and-the-copyright-office-part-2-of-long-awaited-guidance-but-will-it-continue/) - On January 29, the U.S. Copyright Office released Part 2 of its planned 3-part report on the legal and policy issues related to copyright and artificial intelligence (AI). Part 1 of the report, which was published in July 2024, addressed the topic of digital replicas. Part 2 now addresses issues related to the copyrightability of
- [John Wick Targets Jane Wick with Trademark Opposition](https://www.thetmca.com/john-wick-targets-jane-wick-with-trademark-opposition/) - John Wick is a highly successful film franchise starring Keanu Reeves as a hitman who reluctantly emerges from retirement to avenge the killing of his pet beagle (among other offenses committed by a group of not-very-nice Russian gangsters). The first movie in the series came out in 2014 and was a surprise hit, grossing over
- [What Makes an AI Generated Work “Original”?](https://www.thetmca.com/what-makes-an-ai-generated-work-original/) - The emergence of generative artificial intelligence (AI) products in the past couple of years has significantly increased the capacity for individuals, businesses, and organisations to utilise AI to produce a wide range of content at great speed and low cost for personal, professional, and business purposes. ChatGPT, DALL-E, Midjourney, Claude, and Grok are a small
- [SCOTUS Holds Affiliate Profits Not Available Under One Lanham Act Provision, But Leaves Door Open for Other Theories](https://www.thetmca.com/scotus-holds-affiliate-profits-not-available-under-one-lanham-act-provision-but-leaves-door-open-for-other-theories/) - The United States Supreme Court issued a unanimous decision in Dewberry Group, Inc. v. Dewberry Engineers Inc., vacating a nearly $43 million profits award and remanding the case for further consideration. The Court concluded that the Lanham Act’s provision allowing plaintiffs to “recover [a] defendant’s profits” did not permit the lower courts to include profits
- [From the Gold Coast to the Golden State: A Trademark Battle Over Cozy Boots](https://www.thetmca.com/from-the-gold-coast-to-the-golden-state-a-trademark-battle-over-cozy-boots/) - A long legal battle over the right to use the “UGG” mark may result in the end of a company’s right to the word “UGG” in connection with sheepskin shoes and accessories outside of Oceania. The brand “UGG Since 1974” has agreed to only use the wording “Since 1974” when selling their products outside of
- [Can you Repeat the Question? Supreme Court Hears Oral Argument on the Scope of Damages in Copyright Infringement](https://www.thetmca.com/can-you-repeat-the-question-supreme-court-hears-oral-argument-on-the-scope-of-damages-in-copyright-infringement/) - The Supreme Court heard oral argument in February in Warner Chappell Music, Inc. v. Nealy, a case that promised to resolve a split among the U.S. Courts of Appeal relating to the scope of damages available to copyright holders. This post is the second in our series on the Warner v. Nealy case. We previewed the
- [Artificial Intelligence Launching Agentic AI in an Uncertain U.S. Regulatory Landscape](https://www.thetmca.com/artificial-intelligence-launching-agentic-ai-in-an-uncertain-u-s-regulatory-landscape/) - Are you ready to begin adding AI Agents to your human teams? You will soon be getting requests to do so. While business teams will be wowed by what AI Agents and their subagents can do, the artificial intelligence regulatory environment is increasingly uncertain, and we advise caution. Within its first few days, the new
- [Repping Your School and How the Penn State Decision Ties In](https://www.thetmca.com/repping-your-school-and-how-the-penn-state-decision-ties-in/) - School merch is big business. Students want sweats, mugs and the like to show they belong at the school. Alums want merch to show they went to the school. Other purchasers want merch as an aspirational statement, or to support the idea of the institution. Great demand naturally begets supply. Schools want to monopolize the
- [Jack Daniel's Remand, Part I: Why Did the Trial Court Give "Little Weight" to a Consumer Survey Showing 29% Confusion?, Op. 1, No. 45](https://www.thetmca.com/jack-daniels-remand-part-i-why-did-the-trial-court-give-little-weight-to-a-consumer-survey-showing-29-confusion-op-1-no-45/) - This post was originally published on the Lanham Act Surveys for Lawyers newsletter. Seven years ago today, Jack Daniel's was no doubt riding high. The U.S. District Court for the District of Arizona gave Jack a big shot in the arm with a trademark infringement and dilution victory over Bad Spaniel's mimicry: VIP Prods., LLC v.
- [Get Ready: USPTO Trademark Fees Increase January 18, 2025](https://www.thetmca.com/get-ready-uspto-trademark-fees-increase-january-18-2025/) - The United States Patent and Trademark Office (“USPTO”) recently issued a final rule adjusting certain trademark fees for United States trademark applications and registrations. Most aspects of the rule go into effect January 18, 2025, so practitioners and rights holders should be ready for the change and plan ahead to avoid unnecessary costs if possible.
- [Canada: Updates on Language Requirements for Trademarks in Quebec and Cancellation Pilot Project for Trademark Registrations](https://www.thetmca.com/canada-updates-on-language-requirements-for-trademarks-in-quebec-and-cancellation-pilot-project-for-trademark-registrations/) - Our friendly neighbors in the Great White North are implementing important changes in 2025 with respect to language requirements for trademarks and a new pilot project initiated by the Canadian Intellectual Property Office (“CIPO”) to issue cancellation proceedings against trademark registrations based upon non-use. Language Requirements In connection with the Charter of the French Language,
- [India Draft Digital Personal Data Protection Rules, 2025](https://www.thetmca.com/india-draft-digital-personal-data-protection-rules-2025/) - This post was written by Indian Law expert, Cyril Abrol, of the law firm Remfry & Sagar and republished with permission from Remfry & Sagar. For more information about Remfry & Sagar and their attorneys, please visit: https://www.remfry.com/. On January 03, 2025, the government released the much awaited draft Digital Personal Data Protection Rules, 2025, (Draft Rules / Rules)
- [Justice Issues Final Rule Restricting Transfer of Personal U.S. Data to Countries of Concern, Effective in April 2025](https://www.thetmca.com/justice-issues-final-rule-restricting-transfer-of-personal-u-s-data-to-countries-of-concern-effective-in-april-2025/) - The U.S. Department of Justice (“DOJ”) published its final rule (“Final Rule”) on January 8, 2025, that will prohibit or restrict transfer of certain data of U.S. persons to countries of concern, including to China. The Final Rule largely tracks with DOJ’s notice of proposed rulemaking (“Proposed Rule”), which we summarized in a previous eUpdate. The
- [FTC Finalizes Click to Cancel and Negative Option Rule](https://www.thetmca.com/ftc-finalizes-click-to-cancel-and-negative-option-rule/) - On October 16, 2024, the Federal Trade Commission (FTC) announced a revision to its negative option rule. The rule, formally entitled the “Rule Concerning Recurring Subscriptions and Other Negative Option Programs,” is a robust governmental intervention into the marketing and sales of products or services that involve “negative option features.” A “negative option feature” exists
- [Key Changes to the Korean Trademark Law to be Enacted in 2025](https://www.thetmca.com/key-changes-to-the-korean-trademark-law-to-be-enacted-in-2025/) - This post was written by Korean Law experts, Sue Su-Yeon CHUN and Clare Ryeojin PARK of the law firm Kim & Chang and republished with permission from Kim & Chang. For more information about Kim & Chang and their attorneys, please visit: https://www.kimchang.com/en/main.kc. For more insights on intellectual property from Kim & Chang, please visit:
- [First Circuit: Lizzie Borden Themed Coffee Shop Serves Different Goods to Different Consumers from Guests at Lizzie Borden Bed and Breakfast](https://www.thetmca.com/first-circuit-lizzie-borden-themed-coffee-shop-serves-different-goods-to-different-consumers-from-guests-at-lizzie-borden-bed-and-breakfast/) - How many years must pass before a grisly murder can support a marketing effort? Apparently, something less than the 132 years since Lizzie Borden’s father and stepmother were axe murdered in Fall River, Massachusetts. (Yes, the passive voice is intentional—a jury acquitted prime suspect Lizzie, and the murders remain unsolved.) Fall River is city of
- [Supreme Court’s Warhol Decision Transforms Law of Fair Use by Emphasizing Importance of the “Purpose” of the Works at Issue](https://www.thetmca.com/supreme-courts-warhol-decision-transforms-law-of-fair-use-by-emphasizing-importance-of-the-purpose-of-the-works-at-issue/) - The Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith issued earlier today is chock full of references to famous artists, famous works of art, famous musicians and famous celebrities dating back centuries. Given Andy Warhol’s focus on the famous during his prolific career, he’d have to be pleased to see
- [China Issues its First Court Judgment on NFT Infringement](https://www.thetmca.com/china-issues-its-first-court-judgment-on-nft-infringement/) - Unlike the current prohibitive policies on the trading and dealing of cryptocurrencies in China, the Chinese government has taken a more pragmatic approach towards non-fungible tokens (“NFTs”). It considers NFTs to be digitalized fine artworks/collectibles or ‘trending artistic digital products’ rather than digital financial products. This pragmatic approach is an effort by the Chinese government
- [California AG Announces First CCPA Settlement and There is More Enforcement to Come](https://www.thetmca.com/california-ag-announces-first-ccpa-settlement-and-there-is-more-enforcement-to-come/) - The first California Consumer Privacy Act (CCPA) settlement was announced on August 24, together with a strong message from California Attorney General Rob Bonta regarding compliance with the CCPA. The settlement involves Sephora USA, Inc., and resulted from a sweep of enforcements by the Attorney General last year. As part of the settlement, Sephora agreed
- [Coca-Cola – “Thums Down” on Evidence of Damages in Misrepresentation of Source in Cancellation Proceeding with Unresolved Territoriality Tension](https://www.thetmca.com/coca-cola-thums-down-on-evidence-of-damages-in-misrepresentation-of-source-in-cancellation-proceeding-with-unresolved-territoriality-tension/) - We reported here last summer the outcome of Coca-Cola Company’s petitions to cancel the registrations for the above-captioned marks owned by Meenaxi Enterprise, Inc. Meenaxi appealed the TTAB’s decision to cancel the registrations to the U.S. Court of Appeals for the Federal Circuit. The basis for the appeal was that Coca-Cola did not establish a
- [A SUPER HERO-ic Trademark Takedown](https://www.thetmca.com/a-super-hero-ic-trademark-takedown/) - “Enjoy your reign while you may, Superman. For surely as night follows day, there comes a time when even gods must die.” – Lex Luthor, Superman: Doomsday Last month, the creators of beloved characters like “Superman” and “Spider-Man” declined to come to their own rescue when their SUPER HERO and SUPER HEROES registrations
- [A Helpful Reminder of Utilizing a TRO to Keep the Trade Secret ‘Genie in the Bottle’](https://www.thetmca.com/a-helpful-reminder-of-utilizing-a-tro-to-keep-the-trade-secret-genie-in-the-bottle/) - A temporary restraining order (“TRO”) followed by a preliminary injunction is often essential for a company to maintain the trade secrets status of its information that is being misappropriated. Typically, once the information is widely disseminated it will lose its trade secret status, even if such dissemination was done by unlawful means. Thus, acting fast
- [IP Shell Games: Supreme Court to Review Liability of Corporate Affiliates for Trademark Infringement](https://www.thetmca.com/ip-shell-games-supreme-court-to-review-liability-of-corporate-affiliates-for-trademark-infringement/) - In a potential shakeup for corporate liability, the Supreme Court will hear oral argument this year on whether a real estate developer’s corporate affiliates should be responsible for a $46.6 million trademark infringement judgment—despite not being defendants in the case. Plaintiff Dewberry Engineers Inc. and defendant Dewberry Group, Inc. and first clashed in 2006 over
- [Extraterritoriality of the Lanham Act: Fearsome Watchdog or Muzzled Chihuahua?](https://www.thetmca.com/extraterritoriality-of-the-lanham-act-fearsome-watchdog-or-muzzled-chihuahua/) - How far does the Lanham Act’s reach extend? The Supreme Court gave us one answer in Abitron Austria GmbH et al. v. Hetronic International, Inc. and made it simple: not very far. Hetronic is a U.S. company that manufactures remote controls for construction equipment. Abitron (comprised of six non-U.S. companies) at one point sold Hetronic’s
- [Parlez-vous Français? New Language Requirements in Effect in Québec in June 2025](https://www.thetmca.com/parlez-vous-francais-new-language-requirements-in-effect-in-quebec-in-june-2025/) - Established through the Charter of the French Language, French is the official language of the Province of Québec. The Charter applies to businesses located in Québec and to other businesses providing services and selling goods in this province, making the use of French mandatory in connection with these business activities. Historically, the Charter has provided
- [Fearless Girl Statue Decision Says No Need to <i>Fear</i> Contracts – But Be Cautious Drafting Them!](https://www.thetmca.com/fearless-girl-statue-decision-says-no-need-to-fear-contracts-but-be-cautious-drafting-them/) - A 4-foot tall, bronze girl defiantly stands with her hands on her hips and chin held high. Better known as Fearless Girl, the statue was intended to promote the power of women in leadership. The statue has come also to symbolize missteps and the consequences of unthoughtful legal planning. An advertising agency engaged Kristen Visbal
- [Lies Without Consequences? The Federal Circuit Seems to Think So, When it Comes to Incontestability.](https://www.thetmca.com/lies-without-consequences-the-federal-circuit-seems-to-think-so-when-it-comes-to-incontestability/) - For 48 years, the Trademark Trial and Appeal Board of the U.S. Patent & Trademark Office has held that if a trademark registrant files a fraudulent declaration under Section 15 of the Lanham Act to make its registration incontestable, the registration is cancelled in its entirety, full stop. But on October 18, the U.S. Court
- [Central District Finds SnapChat’s Spectacles Mark is Not Generic for Smart Glasses](https://www.thetmca.com/central-district-finds-snapchats-spectacles-mark-is-not-generic-for-smart-glasses/) - In Snap, Inc. v. Vidal, the Central District of California found the Trademark Trial and Appeal Board (“TTAB”) was wrong in finding that SnapChat’s SPECTACLES mark is generic for smart glasses. The district court’s opinion highlights the advantages of seeking de novo review of TTAB decisions in a district court and delves into the complexities
- [Testing the Limits of Copyright Protection for A.I.-Generated Art – Colorado Artist Challenges Registration Refusal in Court](https://www.thetmca.com/testing-the-limits-of-copyright-protection-for-a-i-generated-art-colorado-artist-challenges-registration-refusal-in-court/) - Two years ago, the Colorado State Fair’s annual art competition sparked controversy after awarding a blue ribbon to a work generated in part by A.I. Jason Allen, the artist responsible for the work, said at the time, “I won, and I didn’t break any rules.” The judges agreed, despite outrage from some that the work
- [To Recuse or Not to Recuse? That is the Question Potentially Facing Supreme Court Justices on Book Publisher Copyright Case](https://www.thetmca.com/to-recuse-or-not-to-recuse-that-is-the-question-potentially-facing-supreme-court-justices-on-book-publisher-copyright-case/) - What happens if two-thirds of the U.S. Supreme Court justices have a conflict of interest in a case presented before the Court? The speculative possibilities are abundant in such a situation—do all of the affected Justices have to agree to recuse? What if only some, but not all, recuse? Can the case just be decided
- [Unauthorized Use of Banksy’s Work: Does a Street Artist Have Legal Recourse Against an Exhibition?](https://www.thetmca.com/unauthorized-use-of-banksys-work-does-a-street-artist-have-legal-recourse-against-an-exhibition/) - Artist Rights in Unauthorized Exhibitions Recent unauthorized Banksy exhibits highlight the ongoing struggle of what obligations society owes to artists. While intellectual property laws primarily provide artists with economic protections and redress, what of artists who are less concerned with economic remedies and more concerned with the integrity of their works? The unauthorized use of
- [UPDATE: Success for “Success Kid” before the Eighth Circuit in Copyright Dispute](https://www.thetmca.com/update-success-for-success-kid-before-the-eighth-circuit-in-copyright-dispute/) - A few months’ back, the TMCA wrote about a copyright dispute between the campaign committee of former Iowa Congressman Steve King and Laney Griner, the owner of the photograph used in the popular “Success Kid” meme. The Eighth Circuit Court of Appeals has since affirmed the jury’s finding that the campaign was liable for copyright
- [A Cheat Sheet from the National Advertising Division Conference 2024](https://www.thetmca.com/a-cheat-sheet-from-the-national-advertising-division-conference-2024/) - Earlier this week we met up in lower Manhattan with friends, colleagues and many news faces at the 2024 National Advertising Division (“NAD”) conference. As always, it was great to see and hear from experienced practitioners, the NAD attorneys as well as representatives from the Federal Trade Commission on hot topics in advertising ranging from
- [Cognac Scores a Win for Certification Marks](https://www.thetmca.com/cognac-scores-a-win-for-certification-marks/) - Cognac, which originates from a specific region of France and is named after the commune of Cognac, is far more popular outside its native country. Indeed, according to the industry group Bureau National Interprofessional du Cognac or BNIC, an astonishing 98% of cognac is exported. Cognac has a strong following in the African-American community, and
- [Recent Decision Illustrates Potential Global Implications of DMCA Takedown Requests](https://www.thetmca.com/recent-decision-illustrates-potential-global-implications-of-dmca-takedown-requests/) - The Digital Millennium Copyright Act (DMCA) is a section in the US Copyright Act that provides a safe harbor for internet service providers so long as they comply with a notice and takedown system. The way the DMCA works is a company, such as an internet website host, a search engine, or a website operator,
- [Whataburger v. What-A-Burger #13 – A battle for trademark rights in North Carolina, and potential defenses for junior trademark users](https://www.thetmca.com/whataburger-v-what-a-burger-13-a-battle-for-trademark-rights-in-north-carolina-and-potential-defenses-for-junior-trademark-users/) - Allegations Against What-A-Burger #13 Whataburger has once again found itself in the news over a lawsuit it filed over naming rights against a long-standing East Coast burger establishment for its purported infringement of the WHATABURGER trademark. On June 11, 2024, Whatabrands LLC, the Texas-based burger establishment, sued What-A-Burger #13, Inc., a North Carolina-based burger establishment,
- [Prebiotic or Placebo? False Advertising Class Action Lawsuit Filed Against Poppi Soda](https://www.thetmca.com/prebiotic-or-placebo-false-advertising-class-action-lawsuit-filed-against-poppi-soda/) - The company behind social media phenomenon, Poppi Soda (“Poppi”) may be in fizzy waters for its claims the beverage provides prebiotic benefits to consumers. In a recently-filed California suit, named plaintiff, Kristin Cobbs, initiated a class action lawsuit against the owner of Poppi, VNGR Beverage LLC (“VNGR”) claiming its advertisement and on-label representations of Poppi’s
- [Rap Music and Cognac: The Federal Circuit Considers if the Mix is Strong Enough to Protect Cognac as a Geographic Indicator](https://www.thetmca.com/rap-music-and-cognac-the-federal-circuit-considers-if-the-mix-is-strong-enough-to-protect-cognac-as-a-geographic-indicator/) - In March 2019, Cologne & Cognac Entertainment of New Jersey filed a trademark application at the USPTO for recordings featuring music and artistic performances, music composition services, production of musical videos in the nature of live performances by musical artists, and providing related entertainment and information services, under the following mark: The Examining Attorney assigned
- [Targeting Algorithmic Discrimination in the Employment Context, First-of-Its-Kind Colorado AI Act Beats Out California Bills for Now](https://www.thetmca.com/targeting-algorithmic-discrimination-in-the-employment-context-first-of-its-kind-colorado-ai-act-beats-out-california-bills-for-now/) - A new frontier emerges in the shadow of Colorado’s majestic peaks – Colorado’s governor signed into law a first-of-its-kind comprehensive artificial intelligence (“AI”) law in May 2024. Senate Bill (“SB”) 24-205, commonly known as the “Colorado AI Act,” regulates the risk of algorithmic discrimination arising from the use of high-risk AI systems in the employment
- [Is the Art of Parody Dead?—Implications of SCOTUS Jack Daniel’s Opinion A Year Later](https://www.thetmca.com/is-the-art-of-parody-dead-implications-of-scotus-jack-daniels-opinion-a-year-later/) - It has been a year since the Supreme Court issued its decision in the multiple-year legal battle between VIP Products LLC and Jack Daniel’s. We covered this dispute when it was back at the 9th Circuit. As a recap, VIP produced a squeaky dog toy in the shape of a Jack Daniel’s whiskey bottle called
- [The Ninth Circuit Addresses Judicial Power over Trademark Applications and the Lawful Use of Trademarks on Cannabis (I Mean, Tobacco) Products](https://www.thetmca.com/the-ninth-circuit-addresses-judicial-power-over-trademark-applications-and-the-lawful-use-of-trademarks-on-cannabis-i-mean-tobacco-products/) - The Ninth Circuit issued two opinions in BBK Tobacco & Foods LLP v. Central Coast Agriculture, Inc. finding judicial power over pending trademark applications and an exception shielding trademark registrations for marks used with cannabis products. BBK Tobacco & Foods LLC (“BBK”) markets a variety of smoking accessories, including rolling paper, rolling machines, lighters, shredders,
- [I Don’t Get You, Babe – The Curious Copyright Case of Sonny & Cher & Mary](https://www.thetmca.com/i-dont-get-you-babe-the-curious-copyright-case-of-sonny-cher-mary/) - The 1970s were the heyday of the now-extinct television genre known as the variety show: a weekly extravaganza headlined by a well-known entertainer, generally accompanied by a supporting cast of singers, dancers and comedians, and featuring a weekly guest star to liven things up. Among the longest lasting of these weekly spectacles was The
- [Bridal Fashion Label and Designer Straighten Social Media Ruffles in Bankruptcy Deal](https://www.thetmca.com/bridal-fashion-label-and-designer-straighten-social-media-ruffles-in-bankruptcy-deal/) - The 2010s were a heyday for bridal fashion. TLC’s “Say Yes to the Dress” reality series captivated viewers watching brides navigate family opinions and emotions while shopping for “the dress” at Kleinfeld’s Bridal in New York City. Instagram became a new medium for the engaged to search for bridal fashion and plan the big day.
- [A Cautionary Tale of Contempt Proceedings for Potential Violation of a Standard Protective Order in Trade Secrets Litigation](https://www.thetmca.com/a-cautionary-tale-of-contempt-proceedings-for-potential-violation-of-a-standard-protective-order-in-trade-secrets-litigation/) - Though litigants routinely enter into stipulated protective orders in the course of discovery that may involve sensitive company information (or even trade secrets), a recent ruling is a cautionary tale on the potential consequences of failing to abide by a protective order. In Allstate Ins. Co. v. Cruz, Allstate filed suit against Cruz, a former
- [Supreme Court Rules Plaintiffs can Recover Damages for Copyright Infringement Older than Three Years](https://www.thetmca.com/supreme-court-rules-plaintiffs-can-recover-damages-for-copyright-infringement-older-than-three-years/) - The Supreme Court has now issued its awaited opinion in Warner v. Nealy, ruling that plaintiffs can recover damages for copyright infringement that is more than three years old, at least under the discovery accrual rule. We covered this case when the Court granted cert and heard oral arguments. Factual Background The plaintiff in the
- [Tattoo Toss-up – Artist’s Copyright Claims Fail Against NBA Video Game Publishers](https://www.thetmca.com/tattoo-toss-up-artists-copyright-claims-fail-against-nba-video-game-publishers/) - Tattoos and copyright law have once again crossed paths, as an Ohio jury recently concluded that the creators of the NBA 2K series had an implied license to use an artist’s designs that he tattooed on LeBron James. Even before reaching the jury, however, the artist may have doomed his case simply by not properly
- [Significant New Healthcare Privacy and Cybersecurity Developments](https://www.thetmca.com/significant-new-healthcare-privacy-and-cybersecurity-developments/) - As the federal government continues to take action in response to events impacting the healthcare landscape, stakeholders must ensure that they are staying up-to-date with health information privacy and security developments in the healthcare industry. This blog post summarizes two recent significant actions: a new HIPAA final rule and proposed federal cybersecurity legislation. New HIPAA
- [Whose Song Is It Anyway? Questions about Samples in Flo Rida and will.i.am’s Hit “In the Ayer” Soar to the Supreme Court](https://www.thetmca.com/whose-song-is-it-anyway-questions-about-samples-in-flo-rida-and-will-i-ams-hit-in-the-ayer-soar-to-the-supreme-court/) - On September 29, 2023, the Supreme Court granted certiorari in Warner Chappell Music, Inc. v. Nealy, a case that should resolve a split among the U.S. Courts of Appeal relating to the scope of damages available to copyright holders. The Supreme Court’s decision will determine whether a party can recover damages for copyright infringement that
- [Will “Success Kid” Owner Continue to Succeed on Appeal in Copyright Dispute?](https://www.thetmca.com/will-success-boy-owner-continue-to-succeed-on-appeal-in-copyright-dispute/) - Years ago, Laney Griner took a picture of her then toddler son, Sam, at the beach clenching his fist in what appeared like a celebratory gesture. The photo went viral, and later became a widely used meme on the internet known as “Success Kid.” Griner registered the copyright in the photo, and has successfully licensed
- [The New Face of Fraud: Deepfakes and the Emerging Cyber Threats in Hong Kong](https://www.thetmca.com/the-new-face-of-fraud-deepfakes-and-the-emerging-cyber-threats-in-hong-kong/) - Almost from the very beginning of the internet era, the world has been increasingly afflicted with cyberfraud, exploiting the internet’s potential to enable fraudsters to induce unsuspecting victims to transfer money to overseas bank accounts using another relatively recent technological innovation, electronic funds transfer. Hong Kong is a destination particularly favored by fraudsters for such
- [Warhols, Tigers and Monkees, Oh My! – The Tenth Circuit Applies the Supreme Court’s Warhol Decision Against Netflix](https://www.thetmca.com/warhols-tigers-and-monkees-oh-my-the-tenth-circuit-applies-the-supreme-courts-warhol-decision-against-netflix/) - In a mashup that the late pop artist Andy Warhol surely would have loved, the U.S. Court of Appeals for the Tenth Circuit has applied the Supreme Court’s 2023 decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith to vacate a prior district court decision on the issue of fair use, and
- [AI Regulation Introduced in Europe – Setting the Way Forward for the Rest of the World or Slowing Down the Adoption of New Tech?](https://www.thetmca.com/ai-regulation-introduced-in-europe-setting-the-way-forward-for-the-rest-of-the-world-or-slowing-down-the-adoption-of-new-tech/) - The EU AI Act, which was passed by the European Parliament on 13 March and is set to become law later this year, will probably be the world’s first legislation to introduce a general regulatory framework for artificial intelligence systems. The European Union is known to pioneer the responsible regulation of emerging technology, and the
- [Trader Joe’s Labor Union Bags a Victory in Trademark Dispute](https://www.thetmca.com/trader-joes-labor-union-bags-a-victory-in-trademark-dispute/) - Trader Joe’s is a hugely popular grocery chain that has expanded from its Southern California origins to operate close to 600 stores across the United States. Although Trader Joe’s has traditionally had a reputation as an ethical company, accusations of union-busting have tarnished the grocer’s image as a good employer. Moreover, the company’s latest tack
- [Looking Down the Road: Data Privacy Priorities in 2024](https://www.thetmca.com/looking-down-the-road-data-privacy-priorities-in-2024/) - 2023 brought a surge of data privacy developments, with a large expansion of state comprehensive privacy laws, litigation of new claims based on older laws (e.g. wiretapping and VPPA cases), increased scrutiny on data brokers, and more. Because 2024 is shaping up to be equally complex for those who manage data privacy in their organizations,
- [Update Regarding Trademark Proceedings in China: Rules on Suspension of CNIPA Trademark Proceedings](https://www.thetmca.com/update-regarding-trademark-proceedings-in-china-rules-on-suspension-of-cnipa-trademark-proceedings/) - The China National Intellectual Property Administration (“CNIPA”) recently released its Rules On Suspension of CNIPA Trademark Proceedings (the “Suspension Rules”) and related explanations. The Suspension Rules are intended to provide clear guidance on the circumstances under which a CNIPA trademark proceeding shall be or may be suspended. For companies that have difficulty registering their brands
- [China Abolishes Legalization Requirement on Foreign Public Documents and Adopts Apostille](https://www.thetmca.com/china-abolishes-legalization-requirement-on-foreign-public-documents-and-adopts-apostille/) - On March 8, 2023, China acceded to the Convention Abolishing the Requirement of Legalization for Foreign Public Documents (the “Convention”, also known as the Apostille Convention). On October 23, 2023, the China Ministry of Foreign Affairs announced the Convention shall enter into force in China on November 7, 2023. The Convention is intended to simplify
- [Wavy Baby’s Shoes Not Entitled to Special First Amendment Protections](https://www.thetmca.com/wavy-babys-shoes-not-entitled-to-special-first-amendment-protections/) - 40 years ago, I was the new kid in 6th grade – truly a terrible age in a young girl’s life to try and “fit in” at a new elementary school in a small town. But, one of my best memories from that year was procuring my first pair of blue and white checkered Vans
- [Hallucinations as Trademark Tarnishment: How Wrong Answers Led to a Lawsuit](https://www.thetmca.com/hallucinations-as-trademark-tarnishment-how-wrong-answers-led-to-a-lawsuit/) - ChatGPT took the world by the storm after OpenAI launched it in November 2022 as a general-purpose AI chatbot that could answer questions ranging from the innocuous to the complex. Since then, similar generative AI applications and the large language models underlying them have proliferated, as have controversies over how they use the works of
- [AI Cannot Be an Inventor of a UK Patent](https://www.thetmca.com/ai-cannot-be-an-inventor-of-a-uk-patent/) - The United Kingdom Supreme Court (the ultimate appeal level in the UK legal system) has ruled in a decision of 20 December 2023 that an artificial intelligence (“AI”) system cannot be identified in a patent application as the inventor. The highly-anticipated ruling follows decisions both in the UK and in other jurisdictions (including the Board
- [Guidance from European Data Protection Board Requires Consent for Tracking](https://www.thetmca.com/guidance-from-european-data-protection-board-requires-consent-for-tracking/) - The European Data Protection Board (EDPB), a board comprised primarily of representatives of the data protection supervisory authorities of the European Union’s member states, issued surprising new guidance in mid-November explaining how a key component of the European Union’s ePrivacy Directive applies to variety of commonly used technologies used for tracking on the internet. Article
- [Court Upholds “Monster” $293 Million Award But Declines to Award Monster Energy Company Exemplary Damages for Energy Drink Competitor’s Trade Secret Violations](https://www.thetmca.com/court-upholds-monster-293-million-award-but-declines-to-award-monster-energy-company-exemplary-damages-for-energy-drink-competitors-trade-secret-violations/) - Last month, Vital Pharmaceuticals, Inc. (“Vital”), the manufacturer of the Bang energy drink, fell short in its post-trial challenge to a “monster” jury award in favor of Monster Energy Company (“Monster”). After nearly five years of litigation in the Central District of California, Monster’s Lanham Act, California Uniform Trade Secrets Act (CUTSA), Federal Defend Trade
- [Oral Argument at the Supreme Court Suggests Refusing to Register TRUMP TOO SMALL Trademark Did Not Violate the First Amendment](https://www.thetmca.com/oral-argument-at-the-supreme-court-suggests-refusing-to-register-trump-too-small-trademark-did-not-violate-the-first-amendment/) - The Supreme Court heard oral arguments in Vidal v. Elster this week, which asks whether refusing to register a trademark that criticizes President Trump violates the Free Speech Clause of the First Amendment. It seems the Supreme Court is poised to say it does not. This dispute dates back 2018, when Elster applied to register the
- [Taco Bell Scores a Win Over TACO TUESDAY™](https://www.thetmca.com/taco-bell-scores-a-win-over-taco-tuesday/) - When Taco Bell announced its intention to eliminate all exclusive trademark rights in the phrase TACO TUESDAY, it invoked the Declaration of Independence, claiming that any restriction on the right to use it “violates an American ideal: ‘the pursuit of happiness.’” Though the fast-food giant’s most recent victories are perhaps smaller in scale than winning
- [Privacy Litigation Trends – Back to the Future](https://www.thetmca.com/privacy-litigation-trends-back-to-the-future/) - Plaintiffs look to the past to take action against modern web tracking As states rapidly enact new consumer privacy legislation, businesses have been working tirelessly to comply with extensive new data protection obligations and build out compliance programs. Despite the fact that these new state laws lack a private right of action for violations associated
- [When is Rebranding a $4 Billion Mistake? Time Will Tell With Twitter’s Decline](https://www.thetmca.com/when-is-rebranding-a-4-billion-mistake-time-will-tell-with-twitters-decline/) - The small blue bird adorning nearly every company’s social media section. The verbiage “tweet” and “retweet” working their way into the fabric of modern language. The creation of character-limited, short-form posts as a new method of communication used by presidents, dignitaries, celebrities, and everyday people alike. Even with the ubiquitous rise of social media over
- [A New Scheme is in Place to Allow U.S. Organisations to Import and Use Personal Data from the European Union – Should Every Business Rush to Sign Up?](https://www.thetmca.com/a-new-scheme-is-in-place-to-allow-u-s-organisations-to-import-and-use-personal-data-from-the-european-union-should-every-business-rush-to-sign-up/) - On 10 July 2023, the European Commission adopted its adequacy decision for the EU-U.S. Data Privacy Framework (“DPF”). The adequacy decision is designed to relieve U.S.-based businesses and other institutions and organisations that choose to participate in the DPF from legal uncertainties and administrative burdens in relation to personal data records originating from the EU.
- [Not Human Enough – District Court Rejects Copyright For AI Artwork](https://www.thetmca.com/not-human-enough-district-court-rejects-copyright-for-ai-artwork/) - Artificial Intelligence (AI) is one of the hottest topics in technology, with businesses studying how to utilize its benefits and at least some workers wondering if smarter and cheaper AI technologies will replace them. Here at the TMCA, we have been covering an AI-related issue of particular interest to IP attorneys – the ongoing battle
- [Navigating Data Breach Notification and Prevention in Hong Kong: A New Comprehensive Guide in Hong Kong](https://www.thetmca.com/navigating-data-breach-notification-and-prevention-in-hong-kong-a-new-comprehensive-guide-in-hong-kong/) - Introduction In June 2023, the Privacy Commissioner for Personal Data in Hong Kong (the “Commissioner”) released a new guidance note on data breach handling and notifications (the “Guidance Note”). The purpose of this note is to assist data users in preventing and managing data breaches effectively. The Guidance Note is a comprehensive document which recommends
- [California Attorney General Announces New Investigative Sweep Targeting CCPA Compliance for “Large California Employers”](https://www.thetmca.com/california-attorney-general-announces-new-investigative-sweep-targeting-ccpa-compliance-for-large-california-employers/) - On July 14, 2023, the California Attorney General announced an investigative sweep targeting CCPA compliance efforts by “large California employers.” The Attorney General’s Office stated that it sent inquiry letters to large California employers “requesting information on the companies’ compliance with the California Consumer Privacy Act (CCPA) with respect to the personal information of employees
- [Artists v. AI Images](https://www.thetmca.com/artists-v-ai-images/) - AI technology is developing at a tremendous pace and AI image creation is no exception. AI images are even winning art contests. Since AI generates artistic images modeling others’ work, human artists are asking “is it copyright infringement for AI technology to use my work to learn how to create images and produce AI works?”
- [Supreme Court Will Review TRUMP TOO SMALL Trademark Registration Dispute](https://www.thetmca.com/supreme-court-will-review-trump-too-small-trademark-registration-dispute/) - The Supreme Court granted certiorari and will review the Federal Circuit’s opinion that Section 2(c) of the Lanham Act is unconstitutional as applied to a trademark for the term TRUMP TOO SMALL. The TRUMP TOO SMALL trademark is a callback to an exchange between Senator Marco Rubio and then presidential candidate Donald Trump during the
- [Federal Agencies Set the Pace for Employers Using AI in the Workplace](https://www.thetmca.com/federal-agencies-set-the-pace-for-employers-using-ai-in-the-workplace/) - It is safe to say that the use of artificial intelligence (AI) went mainstream in 2023. With the widening acceptance of AI, dozens of industries have raced to adopt the technology into various operations at a staggering pace – including adopting AI in human resources (HR) processes in the workplace. But, employers and HR departments
- [Inevitable Disclosure Theory Helps Plaintiff Overcome Standing Hurdle](https://www.thetmca.com/inevitable-disclosure-theory-helps-plaintiff-overcome-standing-hurdle/) - Earlier this month, a federal court judge in the United States District Court for the Central District of Illinois denied a defendant’s motion to dismiss a plaintiff’s amended complaint for, among other claims, trade secret misappropriation, based on a theory of inevitable disclosure in the future. The plaintiff had admitted at oral argument that, after
- [Striking Out at the TTAB – All Rise for Consumer Recognition](https://www.thetmca.com/striking-out-at-the-ttab-all-rise-for-consumer-recognition/) - What qualifies as the United States’ current favorite sport may be a subject for heated debate, but “America’s Pastime” and its biggest stars still have significant power over the public—and, apparently, the Trademark Trial and Appeal Board (“TTAB”). By 2017, New York Yankees right-fielder Aaron Judge had become a fan favorite, reaching such popularity that
- [A Deepfake App Could Be in Deep Trouble with California Celebrities](https://www.thetmca.com/a-deepfake-app-could-be-in-deep-trouble-with-california-celebrities/) - A deepfake is an image or video of a person, often a celebrity, who has been digitally altered using an artificial intelligence (“AI”) application to appear to be someone else. Deepfake technology has the potential to be either a boon or a bane to celebrities. As a boon, celebrities can use deepfake technology to extend
- [Parents Retaking Control? New Utah Social Media Laws](https://www.thetmca.com/parents-retaking-control-new-utah-social-media-laws/) - This spring, Utah legislators gave parents new legal tools to control use of social media by children and teens, including introducing a private right of action with statutory damages. To comply, social media companies will need to fundamentally redesign their systems by March 1, 2024, unless they fit within one of the laws’ exceptions. Tech-savvy
- [Do Copyright Owners Have to Show What Elements of Their Software are Protected by Their Registrations? A Split Federal Circuit Suggests Yes.](https://www.thetmca.com/do-copyright-owners-have-to-show-what-elements-of-their-software-are-protected-by-their-registrations-a-split-federal-circuit-suggests-yes/) - In a recent decision, the Federal Circuit approved the use of “Copyrightability Hearings.” Not sure what that means? Read on to find out. The case involved a dispute between two parties, SAS Institute, Inc. (“SAS”) and World Programming Limited (“WPL”). SAS created and markets a suite of software used for data access, management, analysis, and
- [AI Researcher Prompts Unexpected Output in Federal Court: Copyright Policy](https://www.thetmca.com/ai-researcher-prompts-unexpected-output-in-federal-court-copyright-policy/) - In 2018, the U.S. Copyright Office denied the registration of a 2-D work of art “A Recent Entrance into Paradise” generated by artificial intelligence (“AI”). The programmer behind the AI, Dr. Stephen Thaler, sued the Copyright Office sued the Copyright Office in Federal Court in D.C. in June 2022. We covered Thaler’s initial suit and his
- [When is Swiss chocolate Swiss enough? Toblerone Chocolate Recently Found Out, and it Didn’t Make the Cut.](https://www.thetmca.com/when-is-swiss-chocolate-swiss-enough-toblerone-chocolate-recently-found-out-and-it-didnt-make-the-cut/) - The crinkle sound of the gold foil. The rich smell of honey and almond. The unique design of peaks and valleys. And the delicious taste of Swiss chocolate. There is little doubt that since its creation in 1908, Toblerone-branded chocolate has made a name for itself in the chocolate world. But one of its original
- [Developer “Tagged” with $6.75 Million Damages Award for Willfully Destroying Graffiti Art of Recognized Stature](https://www.thetmca.com/developer-tagged-with-6-75-million-damages-award-for-willfully-destroying-graffiti-art-of-recognized-stature/) - We previously posted about an advisory jury verdict rendered in the 5Pointz litigation (Cohen et al v. G&M Realty LP et al.), a case involving the whitewashing of the famous exterior aerosol (or “graffiti”) art in the space commonly known as 5Pointz. In November, the advisory jury panel found that the developer’s actions violated the Visual Artists
- [Eleventh Circuit: Arbitration Clauses Are Like Makeup – They Only Cover So Much](https://www.thetmca.com/eleventh-circuit-arbitration-clauses-are-like-makeup-they-only-cover-so-much/) - The Kardashians, America’s favorite celebrity family, have been having a tough time of late, with Kim Kardashian being robbed at gunpoint in her Paris apartment, and her husband Kanye West attracting criticism for his support of Donald Trump. A federal appeals court has recently added to the Kardashians’ woes. In a pun-laden opinion, the Eleventh
- [Federal Magistrate Judge Tells Cautionary Tale About How Not to Conduct Discovery in Federal Court](https://www.thetmca.com/federal-magistrate-judge-tells-cautionary-tale-about-how-not-to-conduct-discovery-in-federal-court/) - Earlier this month, a federal magistrate judge in the Eastern District of New York, Judge Lois Bloom, issued a report and recommendation ("R&R") that the ultimate sanction of default judgment be entered against certain defendants that had engaged in wide-scale discovery misconduct, that Judge Bloom found ultimately amounted to fraud on the Court. While federal
- [Defamation Claims in UK Require Proof of “Serious Harm”](https://www.thetmca.com/defamation-claims-in-uk-require-proof-of-serious-harm/) - The English courts have traditionally been a popular forum for defamation claims, not least because English law allows even non-residents who have minimal reputation in the UK to sue for defamation in the English courts and be awarded substantial damages. English law is seen as favouring the protection of reputation over the protection of freedom
- [Lenny Dykstra: His Reputation Precedes Him](https://www.thetmca.com/lenny-dykstra-his-reputation-precedes-him/) - In the 1980s and early 1990s, thousands of posters of former Major League star Lenny Dykstra undoubtedly decorated the bedroom walls of New York Mets and Philadelphia Phillies fans. Following a recent decision by Justice Robert Kalish of the New York Supreme Court (the trial-level court in New York), Dykstra now may be a poster
- [Federal Magistrate Shuts Down Socially Distanced Live Depositions](https://www.thetmca.com/federal-magistrate-shuts-down-socially-distanced-live-depositions/) - Earlier this month, a federal magistrate judge in the Northern District of Illinois granted a defendant’s request for a protective order to avoid in-person depositions of its experts, by requiring that the depositions instead be conducted remotely in light of the COVID-19 pandemic. The court’s ruling is relevant to all IP litigators, as it is
- [The Truth of the Matter – A Successful Defense to Defamation and Product Disparagement Claims](https://www.thetmca.com/the-truth-of-the-matter-a-successful-defense-to-defamation-and-product-disparagement-claims/) - Years ago, a potential client called to ask if she could be successfully sued for libel if she published a tell-all memoir, revealing the details of a marital affair with a gentleman she intended to identify. My first reaction, which gave her pause, was “Well, is it true?” The truth of the matter often gets
- [FTC Takes First Enforcement Action for Violation of the Health Breach Notification Rule – A Federal Health Privacy Rule Beyond HIPAA](https://www.thetmca.com/ftc-takes-first-enforcement-action-for-violation-of-the-health-breach-notification-rule-a-federal-health-privacy-rule-beyond-hipaa/) - On February 1, 2023, the Federal Trade Commission (FTC) filed a complaint in the U.S. District Court for the Northern District of California alleging that digital health platform GoodRx violated the FTC Act by repeatedly sharing personal health information with advertising companies and platforms, such as Facebook and Google, and failed to report the unauthorized disclosures pursuant
- [Fashion Retailer Zara Hit With Pricing Disclosure Lawsuit](https://www.thetmca.com/fashion-retailer-zara-hit-with-pricing-disclosure-lawsuit/) - Zara USA, Inc., the affiliate of the Spanish fashion retailer, has been hit with a class action lawsuit in federal court in California advancing a relatively simple and novel set of theories. Rose v. Zara USA, Inc. Plaintiff, represented by counsel Mark Geragos, contends that Zara lures customers into purchases of its clothing and accessories by
- [New California Class Action Targeting Ivanka Trump’s Fashion Line Tests the Limits of California’s Unfair Competition Law](https://www.thetmca.com/new-california-class-action-targeting-ivanka-trumps-fashion-line-tests-the-limits-of-californias-unfair-competition-law/) - California class actions are frequently in the news, often prompted by stories or controversies that have cable news abuzz or involve new cutting-edge technology. On March 16, 2017, a class action lawsuit was filed in San Francisco against Ivanka Trump Marks, LLC. Modern Appealing Clothing v. Ivanka Trump Marks, LLC, Cal. Sup. Ct, County of
- [Can I be sued for sending a demand letter?](https://www.thetmca.com/can-i-be-sued-for-sending-a-demand-letter/) - In the UK, you can be. But the law is about to change and will become much clearer. New legislation will make life a bit easier for IP owners who seek legitimately to enforce their rights. Unjustified threats will remain actionable, but it will be easier to see where the line is drawn. UK law
- [Graffiti Artists “Tag” Developer in Court: Graffiti Art Protected Under Visual Artists Rights Act in Advisory Verdict](https://www.thetmca.com/graffiti-artists-tag-developer-in-court-graffiti-art-protected-under-visual-artists-rights-act-in-advisory-verdict/) - Earlier this month, in Cohen et al v. G&M Realty LP et al., a jury impaneled in the U.S. District Court for the Eastern District of New York found that a developer violated the Visual Artists Rights Act of 1990 (“VARA”) when it whitewashed the famous exterior aerosol (or “graffiti”) art in the space commonly known as 5Pointz. The
- [In Case You Missed It –  Our Top 10 Most Viewed Posts in 2017](https://www.thetmca.com/in-case-you-missed-it-our-top-10-most-viewed-posts-in-2017/) - As TheTMCA.com wraps up a successful 2017 (we were named one of the ABA's top 50 blogs! and Law.com profiled one of our editors) we want to thank our clients, friends and readers who support our blog. In case you missed them, here are our top 10 most viewed posts of 2017, from the Federal Trade Commission’s
- [Supreme Court Cert Denial Closes Book on Storied VARA Dispute](https://www.thetmca.com/supreme-court-cert-denial-closes-book-on-storied-vara-dispute/) - As you may recall from our prior posts regarding the advisory jury verdict and subsequent district court ruling in the 5Pointz litigation (Cohen et al v. G&M Realty LP et al.), in 2018, Judge Block in the U.S. District Court for the Eastern District of New York held that a developer whitewashing famous exterior aerosol (or “graffiti”)
- [Sign the Prenup: What Brands Can Learn From the Kanye West/Adidas IP Breakup](https://www.thetmca.com/sign-the-prenup-what-brands-can-learn-from-the-kanye-west-adidas-ip-breakup/) - Trust and estate attorneys regularly advise their clients to enter into prenuptial agreements to protect the valuable assets each spouse brings to the marriage as well as how to distribute community property in the event of a divorce. Brand collaborations with celebrities, influencers or other brands are much like marriages, but brand collaborations are even
- [Oh My God! Covid Killed Casa Bonita! (Until South Park’s Creators Stepped In)](https://www.thetmca.com/oh-my-god-covid-killed-casa-bonita-until-south-parks-creators-stepped-in/) - Casa Bonita – a self-described “Eatertainment” establishment near Denver, Colorado, featuring cliff divers, stage shows, and subpar Mexican food, appeared destined to become another Covid-19 related restaurant casualty. In 2020 Casa Bonita initially ceased operations due to a local order mandating the closure of indoor restaurants and entertainment due to the global pandemic. As a
- [Copyright Office Provides Guidance on Registration of AI-Created Material: Human Authorship Still Necessary](https://www.thetmca.com/copyright-office-provides-guidance-on-registration-of-ai-created-material-human-authorship-still-necessary/) - This blog has covered artificial intelligence and copyright protection in the United States on a number of occasions, including It's Alive? and AI Artwork. To date, the Copyright Office has consistently rejected registration of works created using AI technology. The basis is that the Copyright Office and copyright case law have interpreted the term “authorship”
- [Gruyere: Delicious Cheese But Generic Term](https://www.thetmca.com/gruyere-delicious-cheese-but-generic-term/) - When you hear the word “gruyere,” what comes to mind? A bucolic region in the mountains of Switzerland? Perhaps the Gruyère region of neighboring France? Or, more likely, you think of a type of cheese. Not just any old cheese though – according to the Oxford Companion to Cheese, gruyere cheese is “widely considered among
- [Jockey Club Rules "Justify" Crazy Names at the Kentucky Derby](https://www.thetmca.com/jockey-club-rules-justify-crazy-names-at-the-kentucky-derby/) - A top favorite to win this weekend’s Kentucky Derby is a colt named Justify, whose parents were Stage Magic and Scat Daddy. Other contenders include Free Drop Billy, Firenze Fire, Lone Sailor, and Magnum Moon. The strange names are as much a part of Derby history as the big hats, but what’s the deal? The
- [#MarketingLaw – Update from the 2018 ANA/BAA Marketing Law Conference](https://www.thetmca.com/marketinglaw-update-from-the-2018-ana-baa-marketing-law-conference/) - The TMCA is back from the 2018 ANA/BAA Marketing Law Conference, Upping Your Game: Pragmatic Business and Compliance Strategies. While in Chicago, we had the privilege of obtaining a comprehensive review of this year in marketing law and gained some insight into the areas of focus for enforcement of marketing laws. We also were witness
- [DuPont Factors of Likely Confusion – Long Term Co-Existence Without Confusion Deserves Consideration by TTAB](https://www.thetmca.com/dupont-factors-of-likely-confusion-long-term-co-existence-without-confusion-deserves-consideration-by-ttab/) - Recently, the Court of Appeals for the Federal Circuit vacated and remanded to the Trademark Trial and Appeal Board a decision on an ex parte appeal regarding a likelihood of confusion between the applicant’s mark GUILD MORTGAGE COMPANY & Design for mortgage banking services and a registration for GUILD INVESTMENT MANAGEMENT for mortgage investment advisory services.
- [10th Circuit Declines to be the Exception and Follows Patent Act Standard for Prevailing Party Attorney’s Fees in “Exceptional Cases” under Lanham Act](https://www.thetmca.com/10th-circuit-declines-to-be-the-exception-and-follows-patent-act-standard-for-prevailing-party-attorneys-fees-in-exceptional-cases-under-lanham-act/) - Since the Supreme Court’s 2014 decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc., district courts have had expanded discretion to award prevailing party attorney’s fees in “exceptional cases” under the Patent Act, pursuant to 35 U.S.C. § 285. Section 35 of the Lanham Act (15 U.S.C. § 1117) also permits attorney’s fees
- [Faulty Universe and Suggestive Stimuli Doom Admissibility of Consumer Survey Evidence](https://www.thetmca.com/faulty-universe-and-suggestive-stimuli-doom-admissibility-of-consumer-survey-evidence/) - There are two sure-fire ways to maximize the chances that a consumer survey gets bounced out of federal court: (1) surveying the wrong people; and (2) leading them to a desired “correct” answer. Both of these survey maladies were on display in a dispute pending before the U.S. District Court for the Northern District of
- [Extraterritorial Application of The GDPR - Lessons from Recent Developments](https://www.thetmca.com/extraterritorial-application-of-the-gdpr-lessons-from-recent-developments/) - The EU General Data Protection Regulation (GDPR), billed as the most important development in data privacy regulation in at least 20 years, arrived with a bang in May of this year and companies have been scrambling to implement compliance measures that will avoid its stiff penalties. Some uncertainty relates to how and to what extent
- [Slam Dunk for Nike – Jumpman Logo Clear of Copyright Dispute](https://www.thetmca.com/slam-dunk-for-nike-jumpman-logo-clear-of-copyright-dispute/) - On March 25, 2019, the Supreme Court declined to hear an appeal of Nike’s successful dismissal of a copyright infringement lawsuit filed by photographer Jacobus Rentmeester against Nike’s ubiquitous Jordan Brand Jumpman Logo, ending a four-year legal battle. Background In 1984, in the lead up to the 1984 Summer Olympics, Rentmeester created a photo essay
- [Doc Martens Gives the Boot to Likelihood of Confusion Expert in Trade Dress Dust-Up](https://www.thetmca.com/doc-martens-gives-the-boot-to-likelihood-of-confusion-expert-in-trade-dress-dust-up/) - We’ve discussed a number of cases lately where flimsy consumer surveys were tossed out as unreliable under Daubert. This latest installment presents a slightly different twist. It discusses a recent case where the Defendant’s expert opined on the issue of secondary meaning and consumer confusion without a survey at all. As it turns out, Plaintiff’s
- [Spooky Season at the USPTO: Trademark Filings from Beyond the Grave Found in a Crackdown Against Fraud](https://www.thetmca.com/spooky-season-at-the-uspto-trademark-filings-from-beyond-the-grave-found-in-a-crackdown-against-fraud/) - In a recent Show Cause Order, the United States Patent and Trademark Office took on the ghost of trademark attorneys past or rather it took aim at a scary level of fraud. The USPTO has threatened sanctions against Shenzhen Haiyi Enterprise Management Co. and its affiliates (collectively, “Haiyi”) for allegedly coopting the good name of
- [Hong Kong PCPD Releases Recommended Data Security Measures](https://www.thetmca.com/hong-kong-pcpd-releases-recommended-data-security-measures/) - On August 30, 2022, the Hong Kong Privacy Commissioner for Personal Data (the “PCPD”) released a guidance note (the “Guidance Note”) on data security measures for information and communications technology to provide data users with recommended data security measures to facilitate their compliance with the relevant provisions under the Personal Data (Privacy) Ordinance (Cap 486
- [In the Eyes of the Law, Driving Simulation Games Are Works of Art](https://www.thetmca.com/in-the-eyes-of-the-law-driving-simulation-games-are-works-of-art/) - photo by Arthur Shevtsov / Shutterstock.com Sometimes, the best place to determine whether a work qualifies as art is in a courtroom. In a recent decision, Judge John H. Chun of the District Court for the Western District of Washington found that a driving simulator video game, Spintires, is an expressive work entitled to First
- [Poaching Employees Landed Generator Maker into Hot Water](https://www.thetmca.com/poaching-employees-landed-generator-maker-into-hot-water/) - In a recent trade secrets litigation in the United States District Court in the Northern District of California, a jury awarded the plaintiffs 40 million dollars, half of which was punitive damages. The Court also subsequently issued a permanent injunction enjoining the use of the misappropriated trade secrets. Though the defendant is currently seeking relief
- [Universal Opt-Out/Global Privacy Control: Preparing for the New Online World](https://www.thetmca.com/universal-opt-out-global-privacy-control-preparing-for-the-new-online-world/) - 2022 has been a whirlwind year for cybersecurity, data, and privacy counsel who are navigating an expanding regulatory landscape and unique sets of legal requirements from numerous jurisdictions. This trend is likely to continue and grow more complex in the new year as additional states adopt and implement privacy laws. A growing trend across privacy
- [Eleventh Circuit: First Amendment Means MTV Floribama Shore Does Not Infringe FLORA-BAMA Trademark](https://www.thetmca.com/eleventh-circuit-first-amendment-means-mtv-floribama-shore-does-not-infringe-flora-bama-trademark/) - In MGFB Properties, Inc. v. Viacom Inc., the U.S. Court of Appeals for the Eleventh Circuit recently sided with Viacom and its subsidiary MTV in a trademark action brought by the owners of the Flora-Bama Lounge, who alleged infringement by the television series MTV Floribama Shore. The court held that the title of MTV’s show
- [Taco Tuesday: It's a Tasty Cultural Phenomenon Not a Trademark](https://www.thetmca.com/taco-tuesday-its-a-tasty-cultural-phenomenon-not-a-trademark/) - More and more, we see trademark applications being filed for cultural phenomena, viral sensations and catchy hashtags. We’ve covered this topic before. Do you remember #covfefe? A recent non-precedential decision issued just after Thanksgiving once again confirmed that common laudatory phrases are often incapable of functioning as trademarks. The TTAB’s decision in In re Monday
- [So, Nine Justices Walk into a Bar… SCOTUS to Consider Role of Humor in Infringement and Dilution Claims](https://www.thetmca.com/so-nine-justices-walk-into-a-bar-scotus-to-consider-role-of-humor-in-infringement-and-dilution-claims/) - Justices of the Supreme Court will soon put on their whiskey glasses to decide the proper tests for infringement and dilution claims involving humorous use of another’s trademark. The Court granted certiorari in November to consider a dispute between VIP Products, LLC (“VIP”) and Jack Daniel’s Properties, Inc. (“Jack Daniel’s”) over VIP’s “Bad Spaniels” dog
- [The FTC's New Year's Resolution for 2023: Healthier Health Claims](https://www.thetmca.com/the-ftcs-new-years-resolution-for-2023-healthier-health-claims/) - Just in time for your health-focused new year’s resolutions, the FTC released an updated guide for marketers: The Health Products Compliance Guidance. This guide last issued in 1998 under a more narrow title, focusing on dietary supplements. The world of health has changed a lot since 1998. While the larger concepts in this updated guide
- [Policing the Digital Space – New Rules Require Platforms to Take Responsibility for Users’ Content](https://www.thetmca.com/policing-the-digital-space-new-rules-require-platforms-to-take-responsibility-for-users-content/) - Since the emergence of the Internet, under current European Union rules, services that host user-generated or user-contributed content have enjoyed legal immunity from liability, provided they take down unlawful content once notified of it. This existing regime gave online platforms, such as search engines, social media platforms, e-commerce sites and numerous other digital services, the
- [Hashtag or Pound? One Law Firm’s Quest to Trademark #law](https://www.thetmca.com/hashtag-or-pound-one-law-firms-quest-to-trademark-law/) - How would you pronounce #law? Is it “hashtag law,” as the PTO examiner suggested would be the most common understanding, or “pound law,” as alleged by the unsuccessful registrant of #law as a service mark. And to what does it refer: a hashtag for a social media topic, or a number that can be dialed
- [China IP Legal Update – China Anti-Unfair Competition Law Amended](https://www.thetmca.com/china-ip-legal-update-china-anti-unfair-competition-law-amended/) - On November 4, 2017, the Amended Anti-Unfair Competition Law was passed by the Standing Committee of the Chinese People’s Congress and promulgated on the same day. The new law became effective on January 1, 2018. The new law has brought some significant changes relevant to trademark lawyers, including amendments to the definitions of acts to
- [Blood May be Thicker than Water, but is it Thicker than Federal Trademark Rights? One Family’s Relationship Tested at the USPTO](https://www.thetmca.com/blood-may-be-thicker-than-water-but-is-it-thicker-than-federal-trademark-rights-one-familys-relationship-tested-at-the-uspto/) - Slovenian-born Luka Doncic became a professional basketball player at the young age of sixteen years old and the towering height of 6’7”. He quickly made a name for himself, leading his Spanish team Real Madrid to the 2018 EuroLeague title, while also winning EuroLeague MVP, EuroLeague Final Four MVP, ACB Best Young Player, and ACB
- [Congress, President Align on Powerful New U.S. Intellectual Property Protection Law](https://www.thetmca.com/congress-president-align-on-powerful-new-u-s-intellectual-property-protection-law/) - On January 5, 2023, President Biden ushered in the new year by signing into law the Protecting American Intellectual Property Act of 2022 (“PAIPA”), Pub. Law 117-336.1 PAIPA was passed with considerable bipartisan support in both houses of Congress. The new law mandates the collection of certain data on international trade secret theft so the U.S. Government
- [Will Copyright Rules for Player Pianos Continue to Govern Digital Music Delivery?](https://www.thetmca.com/will-copyright-rules-for-player-pianos-continue-to-govern-digital-music-delivery/) - Last month in our Olympics edition, we provided a glimpse into the arcane world of licensing of musical works under the U.S. Copyright system. It’s actually crazier still. Who knew that the legislative reaction to the introduction of player pianos at the turn of the last century would continue to govern the royalty scheme for
- [Moving Past Player Pianos?](https://www.thetmca.com/moving-past-player-pianos/) - As we promised in our prior post, we have an update on the “Music Modernization Act” (MMA) that promises to advance copyright law governing digital transmissions of sound recordings into the 21st Century. In a rare act of bipartisanship, the U.S. House of Representatives approved the MMA (H.R. 5447) by a vote of 415-0 on
- [If This Copyright Law Post Mentions Hamilton, You’re More Likely to Read It](https://www.thetmca.com/if-this-copyright-law-post-mentions-hamilton-youre-more-likely-to-read-it/) - This post is about Hamilton. Well, sort of. It’s actually about copyright law. But keep reading! Most people who have attempted to buy a highly sought-after ticket—like, say, a ticket for Hamilton—have experienced the frustration of being beaten to the punch by armies of bots that purchase large quantities of tickets only to resell them
- [Brexit Is Upon Us (well, almost)](https://www.thetmca.com/brexit-is-upon-us-well-almost/) - Now that the political rollercoaster of the past 3 years over Brexit has drawn to a close with the UK electorate falling firmly behind Boris Johnson and a Conservative Party determined to leave the European Union (EU) with no further delays, the new withdrawal agreement reached between the UK government and the EU is being
- [The Demise of the EU-US Privacy Shield and the Future of Personal Data Transfers from the EU](https://www.thetmca.com/the-demise-of-the-eu-us-privacy-shield-and-the-future-of-personal-data-transfers-from-the-eu/) - In a dramatic and widely reported decision of 12 July 2020 in the case known as Schrems II (Data Protection Commissioner v Facebook Ireland Ltd), the Court of Justice of the European Union (“CJEU”) invalidated the decision of the EU Commission that gave legal effect in the EU to the EU-US Privacy Shield scheme. In
- [2023 China Trademark Legal and Practice Updates for Foreign Brand Owners](https://www.thetmca.com/2023-china-trademark-legal-and-practice-updates-for-foreign-brand-owners/) - In order to strengthen the protection of the intellectual property rights and improve the quality control of trademark prosecution and enforcement, China issued a number of new regulations and practice guidelines in late 2022. The purpose of the new regulations, which were issued by the China National Intellectual Property Administration (the “CNIPA”) and the State
- [Copyright Case Against Famed Hip Hop Artist "50 Cent" Isn’t Worth Two Bits](https://www.thetmca.com/copyright-case-against-famed-hip-hop-artist-50-cent-isnt-worth-two-bits/) - In the summer of 2007, hip-hop artist Curtis Jackson—who performs under the stage name “50 Cent”—rapped his way to fame and riches with the smash hit “I Get Money.” After 50 Cent made a mint on this work (he sold more than 2 million copies), a man named Tyrone Simmons appeared on the scene claiming
- [The TMCA’s Top Ten Traveler Tidbits For INTA 2018 in Seattle](https://www.thetmca.com/the-tmcas-top-ten-traveler-tidbits-for-inta-2018-in-seattle/) - Starting this weekend, roughly 10,000 legal professionals from across the globe will begin converging on the great City of Seattle for the 2018 Annual Meeting of the International Trademark Association. There are so many fun, interesting, and exciting things to do in the Pacific Northwest. But let’s face it, unless you have boundless energy and
- [Copyrights and Costs:  A Tale of Two Statutes](https://www.thetmca.com/copyrights-and-costs-a-tale-of-two-statutes/) - On January 14, 2019, the Supreme Court is set to hear oral argument in the copyright dispute Oracle USA Inc. v. Rimini Street, Inc. The Court will provide guidance on the proper definition of "full costs" under the Copyright Act. While this may not be the juiciest of copyright issues the Court has grappled with as of
- [Bong Maker Avoids Having to Cough Up Attorney’s Fees](https://www.thetmca.com/bong-maker-avoids-having-to-cough-up-attorneys-fees/) - A bong distributor with a reputation as a serial trademark plaintiff managed to persuade a Florida federal court that it should not be on the hook for the prevailing party’s attorney’s fees. In Sream Inc. et al. v. CIJ Enterprises Inc., Plaintiffs Roor, a German “water pipe” maker and its U.S. licensee, Sream, alleged that
- [Judge Calls Game for 2K Games, Implicitly Gives NBA Players Greenlight to Show Off Tattoos](https://www.thetmca.com/judge-calls-game-for-2k-games-implicitly-gives-nba-players-greenlight-to-show-off-tattoos/) - Tattoos have been around since ancient times, all around the world, for over 5000 years. See article. Nonetheless, it’s probably fair to say that when Congress drafted each version of the Copyright Act, its members were thinking more about how to protect ink on the surface of paper rather than ink just below the surface
- [Yelp! Negative Online Consumer Review Protected as Opinion, Not Actionable Libel](https://www.thetmca.com/yelp-negative-online-consumer-review-protected-as-opinion-not-actionable-libel/) - We have discussed here before new federal legislative protections that are in place to give consumers wide latitude to post online reviews of businesses, whether they be good or bad. A recent decision of the Appellate Division of the Supreme Court of New York in Crescendo Designs, Ltd. v. Reses, provides additional protection for online consumer
- [What the FTC Wants Businesses to Know About the New Law Protecting Consumers’ Rights to Post Negative Online Reviews](https://www.thetmca.com/what-the-ftc-wants-businesses-to-know-about-the-new-law-protecting-consumers-rights-to-post-negative-online-reviews/) - In a recent blog post, we introduced you to the new Consumer Review Fairness Act (CRFA), which prohibits businesses from including non-disparagement or “gag” clauses in their form contracts. The CRFA goes into effect later this month and will be enforced by the Federal Trade Commission. Last week, the FTC issued a guide for businesses
- [New Federal Law Protects Consumers’ Right to Post Negative Online Reviews](https://www.thetmca.com/new-federal-law-protects-consumers-right-to-post-negative-online-reviews/) - In the digital age, online reviews of a business are often the first place consumers turn to in order to gather information about a business, such as a restaurant, retail store or even a professional service provider. It is well known that a negative online review may not only impact the reputation of a business,
- [Final Rules for Trademark Modernization Act in Effect This Weekend – New Nonuse Procedures Available and Shortened Office Action Deadlines on the Horizon](https://www.thetmca.com/final-rules-for-trademark-modernization-act-in-effect-this-weekend-new-nonuse-procedures-available-and-shortened-office-action-deadlines-on-the-horizon/) - Attention trademark practitioners: the finalized rules implementing the 2020 Trademark Modernization Act (“TMA”) go into effect this weekend, on December 18, 2021. Significantly, this marks the availability of three new mechanisms for eliminating “deadwood” registrations: petitions for reexamination, petitions for expungement, and a new nonuse (expungement) cancellation ground. We previously wrote in detail about these
- [Highlights Part III of the Trademark Modernization Act of 2020: Letters of Protest and Shortened Office Action Response Times](https://www.thetmca.com/highlights-part-iii-of-the-trademark-modernization-act-of-2020-letters-of-protest-and-shortened-office-action-response-times/) - As we wrote in Parts I and II in this series, the Trademark Modernization Act of 2020 (“TMA”) was signed into law on December 27, 2020, containing several significant amendments to the Lanham Act. This post will cover two of the legislative changes: (1) the formalization of procedures for Letters of Protest; and (2) the
- [Highlights Part II of the Trademark Modernization Act of 2020: Ex Parte Expungement, Ex Parte Reexamination, and Non-Use Cancellation of Federal Trademark Registrations](https://www.thetmca.com/highlights-part-ii-of-the-trademark-modernization-act-of-2020-ex-parte-expungement-ex-parte-reexamination-and-non-use-cancellation-of-federal-trademark-registrations/) - As we wrote in Part 1 of this series, the Trademark Modernization Act of 2020 (“TMA”) was signed into law on December 27, 2020, and contained several significant amendments to the Lanham Act. This post will cover three of the legislative changes, all pertaining to the elimination of “deadwood” marks that clutter the register and
- [#BLACKLIVESMATTER: A Trademark or A Social Justice Movement](https://www.thetmca.com/blacklivesmatter-a-trademark-or-a-social-justice-movement/) - One of the many reasons the year 2020 will be memorable is for the social justice movements and demonstrations that have inspired a flood of new trademark applications with the U.S. Patent and Trademark Office. A recent search of the USPTO database revealed that there are 77 pending or dead applications for trademarks that include
- [Fighting COVID-19 by Accelerating the Patent and Trademark Examination Process](https://www.thetmca.com/fighting-covid-19-by-accelerating-the-patent-and-trademark-examination-process/) - Two exciting new programs launched by the U.S. Patent and Trademark Office (USPTO) are poised to accelerate IP protection for COVID-19 related products. Due to medical device shortages and the constant question of when (and if) a vaccine will make it to market, the pace of innovation has been on the forefront of people’s minds
- [Tom Brady Gets Sacked at the USPTO](https://www.thetmca.com/tom-brady-gets-sacked-at-the-uspto/) - Love him or hate him, everyone agrees that NFL Quarterback Tom Brady is terrific, except the USPTO. Earlier this year, Mr. Brady’s company filed to register the trademark “Tom Terrific” for t-shirts and various other collectible items. Yesterday, the USPTO rejected those applications. Why did it throw shade at arguably one of the best slingers
- [USPTO Announces Rule Requiring Foreign Trademark Owners to Obtain U.S. Counsel](https://www.thetmca.com/uspto-announces-rule-requiring-foreign-trademark-owners-to-obtain-u-s-counsel/) - Earlier this year the United States Patent and Trademark Office proposed a rule requiring foreign-domiciled trademark applicants, registrants, and parties to Trademark Trial and Appeal Board Proceedings to be represented by licensed U.S. attorneys. Following public comments, the PTO issued the final rule on July 2, which will become effective on August 3, 2019. The
- [Attorneys May Be Expensive, But Are Their Fees “Expenses”?](https://www.thetmca.com/attorneys-may-be-expensive-but-are-their-fees-expenses/) - On March 4, 2019, the Supreme Court agreed to hear Iancu v. NantKwest, Inc., which will determine whether unsuccessful applicants before the United States Patent and Trademark Office who elect to challenge adverse decisions before the district court must—win or lose—pay the PTO’s attorney’s fees. Unsuccessful patent and trademark applicants are free to challenge the
- [VARA Claim over 16th Century Spanish Galleon Replica Goes Up in Smoke](https://www.thetmca.com/vara-claim-over-16th-century-spanish-galleon-replica-goes-up-in-smoke/) - The Visual Artists Rights Act ("VARA") protects a “work of visual art” from “intentional distortion, mutilation, or other modification." VARA defines what a work of visual art is, and also what it isn’t. A painting, drawing or sculpture, can all qualify as works of visual art. On the other hand, a diagram, model, and “applied
- [Trademark Practice Tip: How to Settle a Trademark Opposition Proceeding and Obtain Judgment Against the Applicant After an Application is Abandoned](https://www.thetmca.com/trademark-practice-tip-how-to-settle-a-trademark-opposition-proceeding-and-obtain-judgment-against-the-applicant-after-an-application-is-abandoned/) - Most opposition proceedings in the Trademark Trial and Appeal Board of the USPTO settle before final judgment, often based on a negotiated settlement agreement requiring the abandonment of the opposed application. In these circumstances, will judgment be entered against the applicant and in favor of opposer in the proceeding? It depends on how the settlement
- [Taco Tuesday for Everyone (But Not to Register as a Trademark)](https://www.thetmca.com/taco-tuesday-for-everyone-but-not-to-register-as-a-trademark/) - According to a recent ESPN report, Los Angeles Lakers basketball player LeBron James made “IT’S TACO TUESDAY” T-shirts to promote his video posts of his family’s taco nights. He then sought a trademark registration for the phrase for use on T-shirts and other goods. Unfortunately for LeBron, his shot to beat others down the court
- [Wine Dispute Has No Legs: Trademark Opposition Alone Insufficient to Create a Justiciable Controversy for Declaratory Judgment Actions](https://www.thetmca.com/wine-dispute-has-no-legs-trademark-opposition-alone-insufficient-to-create-a-justiciable-controversy-for-declaratory-judgment-actions/) - Two recent decisions from the Western District of North Carolina in Winestore Holdings LLC v. Justin Vineyards & Winery LLC provide a tasting of the requirements for bringing a declaratory judgment action for non-infringement of a trademark in federal court. The Court in Winestore held that sending an alleged trademark infringer a communication that is
- [For Glossier, Inc., Pink Isn’t Just a Shade of Makeup](https://www.thetmca.com/for-glossier-inc-pink-isnt-just-a-shade-of-makeup/) - Over the past decade, the influx of online shopping and home delivery has made every day feel like Christmas. The presence of an ever-growing network of online retailers makes it easier than ever to order just about anything online and have it delivered to your doorstep. While many, if not most, products arrive in non-distinct,
- [Shifting Gears: A Quick Tour of Genericide](https://www.thetmca.com/shifting-gears-a-quick-tour-of-genericide/) - Have you ever been to an indoor cycling class? If so, you most likely have heard the term “spin class,” or referred to the act itself as “spinning.” Mad Dogg Athletics, Inc. would take offense, however, calling such uses infringement unless the studio is an authorized licensee of its marks. Mad Dogg Athletics has owned
- [Advantages of Voluntary Copyright Registration in China Explained](https://www.thetmca.com/advantages-of-voluntary-copyright-registration-in-china-explained/) - China, like the United States, is a party to the Berne Convention for the Protection of Literary and Artistic Works. As such, in general any literary or artistic work created in the US will also be protected in China. Unlike trademark rights, which are based on use or registration (depending on the country of adoption
- [Coca-Cola Successfully Petitions to Cancel Trademark Registrations Based on Misrepresentation of Source](https://www.thetmca.com/coca-cola-successfully-petitions-to-cancel-trademark-registrations-based-on-misrepresentation-of-source/) - Coca-Cola Company has a rich history and well-established global brand in its products originating in the U.S. It has also purchased and invested in the development of other brands and distribution of beverage products outside of the U.S., including in India. Coca-Cola entered the market in India through the acquisition of the marks
- [Rights of Privacy and Publicity TOO SMALL to Overcome First Amendment Freedom of Speech](https://www.thetmca.com/rights-of-privacy-and-publicity-too-small-to-overcome-first-amendment-freedom-of-speech/) - During the 2016 presidential primaries, then presidential candidates Donald Trump and Senator Marco Rubio exchanged insults, with Trump calling Rubio “Little Marco” and Rubio commenting on the size of Trumps hands. Recently, this exchange was the basis for a Federal Circuit decision reversing a refusal to register the trademark TRUMP TOO SMALL as an unconstitutional
- [Russia, Neighbors, and a Copyright-protected Social Media Post = Fair Use?](https://www.thetmca.com/russia-neighbors-and-a-copyright-protected-social-media-post-fair-use/) - What additional value does a copyright registration confer on a run-of-the-mill neighborhood social media post? Not a lot, it appears. Earlier this year, the First Circuit affirmed the dismissal of a lawsuit brought by one neighbor against another. From 2002-2017, neighbors in the Davis Square area of the 80,000-person Massachusetts city of Somerville used the
- [What’s That Sound?  It Might Just Be a Trademark.](https://www.thetmca.com/whats-that-sound-it-might-just-be-a-trademark/) - Trademarks are not only words or logos, but can come in many other forms, including sounds. In the words of the Trademark Trial and Appeal Board in the case In re Gen. Electric Broad. Co., 199 USPQ 560, 563 (TTAB 1978), sounds can function as trademarks “in those situations where they assume a definitive shape
- [Like it or Not – Employee Facebook Post Protected Under the National Labor Relations Act](https://www.thetmca.com/like-it-or-not-employee-facebook-post-protected-under-the-national-labor-relations-act/) - Employers may not like it, but the National Labor Relations Board and, very recently, the U.S. Court of Appeals for the Second Circuit, have held that an employee’s Facebook post related to wages or working conditions, when combined with other employees’ Facebook comments or “likes” of that post, can constitute protected concerted activity under the
- [#Concerted Activity in 140 Characters or Less](https://www.thetmca.com/concerted-activity-in-140-characters-or-less/) - Employees have increasingly voiced concerns on social media regarding their employment, often including specific statements about their employers. As previously discussed on this blog, an employee’s Facebook post related to wages or working conditions, combined with other employees’ Facebook comments or “likes” of that post, can constitute protected concerted activity under the National Labor Relations
- [Infinity Superfoods Pulls COVID-Related Social Media Content Following NAD Inquiry](https://www.thetmca.com/infinity-superfoods-pulls-covid-related-social-media-content-following-nad-inquiry/) - Infinity Superfoods has voluntarily pulled certain social media content related to COVID-19 following an inquiry from the National Advertising Division (“NAD”) of BBB National Programs. In the same vein as regulatory agencies such as the FTC and the FDA, NAD is currently paying increased attention to advertising claims related to supposed treatments for COVID-19. As
- [FTC Report on Social Media Bots and Deceptive Advertising](https://www.thetmca.com/ftc-report-on-social-media-bots-and-deceptive-advertising/) - We have previously blogged about the rise of computer generated imagery (CGI) influencers, which are one form of social media bots currently invading the online world. Bots are automated software that perform actions using a set of algorithms. Social media bots run on social media platforms and are generally online accounts that automatically generate posts
- [How to Get Yourself Fired for a Facebook Post](https://www.thetmca.com/how-to-get-yourself-fired-for-a-facebook-post/) - Social media has created a minefield of concerns for both employees and employers. The news is full of stories of employees documenting their questionable off-duty conduct on social media, or posting comments containing racist or derogatory remarks. Often, the employer—or sometimes, the rest of the online community—will demand that the employee be fired. In such
- [LinkedIn Takes the Role of Protector of its Users’ Privacy](https://www.thetmca.com/linkedin-takes-the-role-of-protector-of-its-users-privacy/) - In a recent case brought in a California court, the professional networking service LinkedIn asserted its right to protect its users’ privacy expectations against a third party interloper that claims the right to collect their “public” data. Commercial interests are mixed in this case together with compliance requirements, highlighting the growing tension between free market
- [EU Court Strikes Down Security Legislation Over Privacy Concerns](https://www.thetmca.com/eu-court-strikes-down-security-legislation-over-privacy-concerns/) - In a decision published on 21 December 2016, the Court of Justice of the European Union (“ECJ”) invalidated legislation in two EU member states – the UK and Sweden – requiring telecommunication operators to retain users’ traffic and location data for 12 months and giving access to that data to intelligence, security and criminal investigation authorities.
- [BIAS Rules: New FCC Regulations on Broadband Customer Privacy](https://www.thetmca.com/bias-rules-new-fcc-regulations-on-broadband-customer-privacy/) - On October 27, 2016, the Federal Communications Commission (“FCC” or “Commission”) adopted sweeping new privacy rules applicable to all telecommunications providers including broadband internet access service (“BIAS”) and interconnected voice-over-internet-protocol (“VoIP”) providers. Protecting the Privacy of Customers of Broadband and Other Telecommunications Services. These rules place limits on how providers can use and share customer
- [SECOND CIRCUIT EASES TENSION BETWEEN U.S. DISCOVERY REQUIREMENTS AND E.U. PRIVACY LAWS](https://www.thetmca.com/second-circuit-eases-tension-between-u-s-discovery-requirements-and-e-u-privacy-laws/) - Microsoft scored an important victory when the Second Circuit ruled that the government is not authorized to issue warrants for customer data stored overseas. In In re Warrant to Search a Certain E-mail Account Controlled & Maintained by Microsoft Corp., known as the Microsoft-Ireland case, the government issued a warrant to obtain Microsoft customer content
- [Self-Certification Under EU-U.S. Privacy Shield to Commence from August 2016](https://www.thetmca.com/self-certification-under-eu-u-s-privacy-shield-to-commence-from-august-2016/) - Following the formal approval of the EU-U.S. Privacy Shield by the European Commission on 8 July 2016, the arrangement will come into force in the U.S. commencing 1 August 2016 and will provide a convenient framework to allow U.S.-based companies to store, process and access personal data originating from the EU in the U.S. and
- [Cybersecurity Compliance Just Got Tougher:  Companies need specific, well-executed plans to meet growing demands of federal and state agencies.](https://www.thetmca.com/cybersecurity-compliance-just-got-tougher-companies-need-specific-well-executed-plans-to-meet-growing-demands-of-federal-and-state-agencies/) - While cybersecurity risks have increased, government regulation has traditionally lagged behind. Recently, some government entities have tried to catch up by mandating that companies take a proactive approach toward protecting personal and competitively sensitive data. The move is a departure from the traditional reactive response of simply notifying consumers after their personal data is breached.
- [US Companies Face Increasing Privacy Challenges in Europe](https://www.thetmca.com/us-companies-face-increasing-privacy-challenges-in-europe/) - In two independent and much-anticipated events, separate EU entities took actions which will continue to complicate the ability of US companies to do business in Europe. Privacy Shield Provisions Found Lacking by Working Group 29 First, the EU’s Working Group 29 rejected as inadequate the new Privacy Shield that had been negotiated between the officials
- [Hulk-Sized Damages in Sex Tape Privacy and Publicity Case](https://www.thetmca.com/hulk-sized-damages-in-sex-tape-privacy-and-publicity-case/) - In 2006, Terry Gene Bollea, better known as “Hulk Hogan,” had sex with his best friend’s wife, Heather Clem. Apparently unbeknownst to either of them, his best friend Todd Alan Clem, now legally known as “Bubba the Love Sponge,” recorded their escapades. Unsurprisingly, the tape was leaked to third parties and eventually Gawker Media LLC
- [EU-US Data Transfer Privacy Shield: Political Agreement Achieved Regarding “Safe Harbor 2.0”](https://www.thetmca.com/eu-us-data-transfer-privacy-shield-political-agreement-achieved-regarding-safe-harbor-2-0/) - On February 2, 2016, following three months of intense negotiations in the wake of the October 6, 2015 decision by the Court of Justice of the European Union invalidating the EU-US Safe Harbor (previously in effect for over fifteen years), , the European Commission and US Department of Commerce announced a “political” agreement on a
- [EU Commission Communication Attempts to Address Uncertainty  Surrounding Transfer of Personal Data Following Schrems](https://www.thetmca.com/eu-commission-communication-attempts-to-address-uncertainty-surrounding-transfer-of-personal-data-following-schrems/) - On November 6, 2015, The EU Commission published a communication addressed to the European Parliament and the EU Council in an attempt to reduce current legal uncertainties surrounding the transfer of personal data from European Union countries to the U.S. The communication follows on the decision of the Court of Justice of the EU (“CJEU”)
- [Think Your “Private” Posts are Private?  In New York, “Private” Facebook Posts are No Longer Protected from Discovery](https://www.thetmca.com/think-your-private-posts-are-private-in-new-york-private-facebook-posts-are-no-longer-protected-from-discovery/) - In a recent unanimous decision, Forman v. Henkin, the New York Court of Appeals, New York’s highest court, removed the heightened requirement set by the lower courts for a party requesting the production of social media posts designated as “private” by the user. Now, the rule in New York is consistent with federal practice in
- [Google and YouTube to Pay $170 Million for COPPA Violations](https://www.thetmca.com/google-and-youtube-to-pay-170-million-for-coppa-violations/) - In the largest settlement ever obtained in connection with the Children’s Online Privacy Protection Act (COPPA), Google and its subsidiary YouTube have agreed to pay $170 million to the Federal Trade Commission (FTC) and the New York Attorney General (NYAG). The settlement comes in response to allegations that, in violation of COPPA rules, Google and
- [Adding AdTech to the CCPA Equation: The Importance of Third-Party Vendor Compliance](https://www.thetmca.com/adding-adtech-to-the-ccpa-equation-the-importance-of-third-party-vendor-compliance/) - The arrival of the California Consumer Privacy Act (CCPA) on January 1, 2020 brings steep risk for companies that collect information on California residents. In particular, and among other statutory penalties, a business that suffers a data breach is subject to statutory penalties of $100-750 per consumer per incident if such data breach arises from
- [Final California Consumer Privacy Act (CCPA) Regulations Approved](https://www.thetmca.com/final-california-consumer-privacy-act-ccpa-regulations-approved/) - In the midst of the chaos of the COVID-19 pandemic, the California Attorney General announced on Friday that the final California Consumer Privacy Act (CCPA) regulations have been approved and are now in effect. The process that began in late 2019 (with some interesting twists - remember this:) has finally come to an
- [Criminalizing Doxxing Acts: New Amendments to Hong Kong’s Data Privacy Law](https://www.thetmca.com/criminalizing-doxxing-acts-new-amendments-to-hong-kongs-data-privacy-law/) - On October 8, 2021, the Personal Data (Privacy) (Amendment) Ordinance 2021 containing initiatives to combat doxxing acts became effective in Hong Kong. The anti-doxxing regime under the Amendment not only defines broad and encompassing offences coupled with hefty penalties but also confers new investigative and enforcement powers to the Privacy Commissioner that have extra-territorial effect.
- [How Large Employers Can Prepare for CCPA/CPRA Obligations for “HR Data” in 2022](https://www.thetmca.com/how-large-employers-can-prepare-for-ccpa-cpra-obligations-for-hr-data-in-2022/) - Get ready, large employers. After years of amendments exempting the personal information of employees and other personnel from the California Consumer Privacy Act (“CCPA”), covered employers now have a firm deadline by which to comply with the CCPA’s requirements in protecting employee and personnel personal information (“human resources data”). The deadline – January 1, 2023
- [Will Employers Have More Obligations Beyond the CCPA if these California Privacy Bills Pass?](https://www.thetmca.com/will-employers-have-more-obligations-beyond-the-ccpa-if-these-california-privacy-bills-pass/) - California employers have navigated the ever-changing privacy landscape when it comes to employee and personnel personal information (“human resources data”). For years, California employers’ obligations were narrow in scope compared to covered businesses’ broader obligations to consumers under the California Consumer Privacy Act (“CCPA”). The California Privacy Rights Act (the “CPRA”) expanded these obligations and
- [Breakfast with a NY A.G. Deputy Bureau Chief: Update on Data Breaches, COPPA and False Online Reviews](https://www.thetmca.com/breakfast-with-a-ny-a-g-deputy-bureau-chief-update-on-data-breaches-coppa-and-false-online-reviews/) - On June 13th, we hosted a “Meet the Regulators Breakfast” with Clark Russell, Deputy Bureau Chief of the Bureau of Internet and Technology of the NY State Office of the Attorney General, along with Dorsey’s privacy lawyer Bob Cattanach, which was sponsored by the Association of National Advertisers. For those of you who missed out
- [National Debate on Digital Privacy Shows No Signs of Slowing](https://www.thetmca.com/national-debate-on-digital-privacy-shows-no-signs-of-slowing/) - The Justice Department’s dispute with Apple related to encryption on the iPhone used by one of the San Bernardino shooters has reinvigorated the national debate on digital privacy. Though it is not clear how the California District Court will rule on pending motions by the Government and Apple, the case has breathed new life into
- [Regulating From Across The Pond:  Rough Waters Ahead For Use of Big Data in the EU](https://www.thetmca.com/regulating-from-across-the-pond-rough-waters-ahead-for-use-of-big-data-in-the-eu/) - A proposal for new e-Privacy legislation by the European Union may have a significant impact on businesses that wish to rely on use-generated data such as meta-data collected from users of mobile devices. Mobile applications and other software often collect users’ meta-data from phones and other mobile devices (as well as from desktop computers) to
- [Journey’s Trademark Squabble – Who’s Crying Now?](https://www.thetmca.com/journeys-trademark-squabble-whos-crying-now/) - When Journey was inducted into the Rock and Roll Hall of Fame in 2017, Steve Perry was ranked 76th on Rolling Stone’s “100 Greatest Singers of All Time.” Arguably, many Journey fans view the front man and his voice as the core identifier for the band and its most popular and commercially successful music. After
- [FTC Finalizes Deals with Six CBD Companies](https://www.thetmca.com/ftc-finalizes-deals-with-six-cbd-companies/) - The FTC recently reached deals with six CBD companies after it issued formal complaints against them in December 2020 over concerns about deceptive practices. The initial complaints (found here: In re Bionatrol Health, LLC, In re Epichouse, LLC, In re CBD Meds, Inc., In re Easybutter, LLC, In re Reef Industries, Inc., and In re
- [Grumpy Cat wins $700K, but is she happy?](https://www.thetmca.com/grumpy-cat-wins-700k-but-is-she-happy/) - Coffee addicts and meme fanatics are slightly less caffeinated and slightly less entertained after a California federal district court recently ruled that Grenade Beverage, LLC infringed the intellectual property rights of viral meme sensation Grumpy Cat, when Grenade Beverage sold ground coffee using her name and image in violation of its license agreement with Grumpy Cat’s
- [Supreme Court Rules that Trademark Licensees May Continue to Use Licensed Marks Following Rejection in Bankruptcy](https://www.thetmca.com/supreme-court-rules-that-trademark-licensees-may-continue-to-use-licensed-marks-following-rejection-in-bankruptcy/) - On May 20, 2019, the U.S. Supreme Court settled the question of whether licensees under trademark agreements rejected by bankruptcy debtors may continue to use licensed marks. In a highly anticipated decision in Mission Product Holdings, Inc. v. Tempnology, LLC, the Supreme Court ruled that yes indeed, they can – subject to non-bankruptcy law. “Rejection”
- [Music Public Performance Rights: Ignore That Licensing Offer from ASCAP or BMI at Your Peril](https://www.thetmca.com/music-public-performance-rights-ignore-that-licensing-offer-from-ascap-or-bmi-at-your-peril/) - In the music world, performance rights organizations (“PROs”) serve an intermediary function between songwriters and music publishers and third parties who perform the protected works publicly. Among the largest PROs in the United States are the American Society of Composers, Authors and Publishers (“ASCAP”), Broadcast Music, Inc. (“BMI”), and SESAC (originally, the Society of European
- [Famed NYT Cartoonist Illustrates Winning Argument in Breach of Contract Action](https://www.thetmca.com/famed-nyt-cartoonist-illustrates-winning-argument-in-breach-of-contract-action/) - For more than seven decades, the Arts sections of the New York Times featured cartoons by the famous artist Al Hirschfeld, whose works were celebrated for their clean crisp lines, as well as the artist's penchant for embedding the name of his daughter, Nina, in his images. After a long, rich life, Hirschfeld died in
- [Will the Supreme Court Finally Let Trademarks Join their Intellectual Property Brethren In the Protection Provided Under the Bankruptcy Code?](https://www.thetmca.com/will-the-supreme-court-finally-let-trademarks-join-their-intellectual-property-brethren-in-the-protection-provided-under-the-bankruptcy-code/) - Earlier this year, we wrote about the First Circuit’s decision in In re Tempnology, LLC, a bankruptcy case in which the First Circuit cemented a circuit split over whether a trademark licensee could retain its trademark rights after a debtor rejected the trademark license under the Bankruptcy Code. That was our third post about the
- [The Ghosts of Past Licensing Agreements Continue to Haunt Ms. Pac-Man](https://www.thetmca.com/the-ghosts-of-past-licensing-agreements-continue-to-haunt-ms-pac-man/) - 1980 was a momentous year. Not only was it the year in which the Rubik’s Cube was first released, it was also when approximately 350 million people worldwide finally learned who shot J.R. on TV’s “Dallas” (spoiler alert: it was Kristin Shepard, J.R.’s angry mistress, obviously). But perhaps the most significant event of all was
- [Accurately Depicting Athletes in Video Games: The Royal Rumble Continues](https://www.thetmca.com/accurately-depicting-athletes-in-video-games-the-royal-rumble-continues/) - If you are a fan of legal decisions about professional wrestlers, tattoos, video games or video games about professional wrestlers with tattoos, 2020 has been an exciting year for you. This past Spring, in Solid Oak Sketches, LLC v. 2K Games, Inc., Judge Laura Taylor Swain dismissed a copyright claim filed by a tattoo owner
- [The Supreme Court will soon determine whether Trademark License Rights in Bankruptcy Endure or Melt Away](https://www.thetmca.com/the-supreme-court-will-soon-determine-whether-trademark-license-rights-in-bankruptcy-endure-or-melt-away/) - In the coming months, the U.S. Supreme Court is expected to issue a decision in Mission Product Holdings, Inc. v. Tempnology, LLC that may (yes, we said “may”) resolve a circuit split as to whether trademark licensees can continue using trademarks after a licensor in bankruptcy rejects the license agreement under bankruptcy law. The TMCA
- [Thinking about franchising in Hong Kong? Read This First.](https://www.thetmca.com/thinking-about-franchising-in-hong-kong-read-this-first/) - Hong Kong is an attractive franchising market, as an entry point to China and other international markets. While franchising in Hong Kong is not specifically regulated by law, there are common law principles and legislation that are applicable when setting up or operating a franchise in Hong Kong. Unlike some other jurisdictions, the system allows
- [Pai in the Sky: Commissioner Pai Ascends to Chairman of the FCC](https://www.thetmca.com/pai-in-the-sky-commissioner-pai-ascends-to-chairman-of-the-fcc/) - As expected, President Trump has tapped Commissioner Ajit Pai to Chair the new-look FCC. This is great news for proponents of TCPA reform but, as with all things Commission related, we may not see any tangible results from his ascension for some time. For the uninitiated, the Telephone Consumer Protection Act (“TCPA”) requires “express consent”
- [9th Circuit: Counterfeiting Claim Requires Court to Evaluate Likelihood of Confusion by Comparing Products as a Whole, Not Just Identical Marks. (Except When Maybe It Doesn’t.)](https://www.thetmca.com/9th-circuit-counterfeiting-claim-requires-court-to-evaluate-likelihood-of-confusion-by-comparing-products-as-a-whole-not-just-identical-marks-except-when-maybe-it-doesnt/) - Does the Lanham Act require a plaintiff to show a likelihood of confusion to prevail on a counterfeiting claim? And if so, should the court simply compare the marks at issue, or look beyond them to the products themselves and other marketplace factors bearing on likely confusion? In the Ninth Circuit at least, the answer
- [Dorsey & Whitney Seminar Replay: Simon Tam & The Slants](https://www.thetmca.com/dorsey-whitney-seminar-replay-simon-tam-the-slants/) - On January 28, 2016, Dorsey & Whitney's Seattle office hosted a CLE panel discussion regarding In Re Simon Shiao Tam, the Federal Circuit decision holding that the "disparaging" trademark prohibition in Section 2(a) of the Lanham Act violated the First Amendment. The panel featured Simon Tam, the bassist and founder of the rock band The Slants,
- [ChatGPT: New Tool, Familiar Issues](https://www.thetmca.com/chatgpt-new-tool-familiar-issues/) - What is ChatGPT? When asked this innocuous question, ChatGPT introduces itself, more or less, as an AI assistant trained to provide information and answer questions on a wide range of topics. It stresses that it does not have the ability to conduct internet searches or access any information outside of its training data (which stops
- [Trademark Wars: Fox’s “Empire” Strikes Back](https://www.thetmca.com/trademark-wars-foxs-empire-strikes-back/) - In another episode involving the First Amendment and the Lanham Act, Twentieth Century Fox’s “Empire” notched a win for the First Amendment. In Twentieth Century Fox Television, et al. v. Empire Distribution Inc. the United States District Court for the Central District of California held that Fox’s hit television show “Empire” did not infringe or dilute
- [Jack Daniel’s Seeks "Relief" from Supreme Court Following Spat with Dog Toy Creator](https://www.thetmca.com/jack-daniels-seeks-relief-from-supreme-court-following-spat-with-dog-toy-creator/) - Is humor protected speech? Although the answer might seem like an obvious yes, a dog toy maker’s Jack Daniel’s bottle lookalike dog chew toy with poopy puns blurs the line between freedom of expression and the protection of famous marks. In 2014, VIP Products LLC began selling a dog chew toy designed to look like
- [Honey Badger Don’t Care About Trademark Infringement, But The Ninth Circuit Does](https://www.thetmca.com/honey-badger-dont-care-about-trademark-infringement-but-the-ninth-circuit-does/) - Long ago (by internet standards), a spoof of Discovery Channel-style nature videos went viral. “The Crazy Nastyass Honey Badger” is a three-minute montage of wild honey badgers running across the desert, hunting prey, and, perhaps most disgusting, eating a snake, all set to classical music. The narrator, Christopher Gordon, describes the honey badgers’ activities without
- [Forestall Phishing Forays with Sophisticated Domain Name Watching](https://www.thetmca.com/forestall-phishing-forays-with-sophisticated-domain-name-watching/) - With the holiday season upon us and online goods and services flying off the virtual shelves, companies should not lose sight of the increased risk of phishing and cyberattacks. Society’s reliance on online commerce means businesses are under immense pressure to ensure their website domain names provide a safe destination for customers. To do so,
- [Supreme Court Grapples With Complex Issue of Fair Use and Appears Uncertain as to How to Rule, and Thereafter How to Proceed](https://www.thetmca.com/supreme-court-grapples-with-complex-issue-of-fair-use-and-appears-uncertain-as-to-how-to-rule-and-thereafter-how-to-proceed/) - It is not every day that Supreme Court oral arguments include references to The Lord of the Rings (both the books and the movies!), the Syracuse University athletic program, Mork and Mindy, All in the Family, Norman Lear (inaccurately characterized as having passed away, when he just celebrated his 100th birthday), the Mona Lisa (in
- [That’s Still a KOOL Mark, BLOOM – KOOL Cigarettes Smokes Out the Interlocking OOs in BLOOM Cannabis Products](https://www.thetmca.com/thats-still-a-kool-mark-bloom-kool-cigarettes-smokes-out-the-interlocking-oos-in-bloom-cannabis-products/) - Like me, Judge Otis D. Wright of the Central District of California remembers KOOL. A once leading menthol cigarette label, KOOL brands and its owner ITG Brands, LLC sued Capna Intellectual claiming Capna’s Bloom Brands’ use of interlocking “OO”s in its marketing of packaged cannabis products infringes on and dilutes the KOOL marks. After a
- [Copyrights, Metadata, and the “Double-Scienter Requirement” in the Eleventh Circuit](https://www.thetmca.com/copyrights-metadata-and-the-double-scienter-requirement-in-the-eleventh-circuit/) - Last month, the Court of Appeals for the Eleventh Circuit weighed in for the first time on the scienter requirement for copyright infringement under Section 1202(b) of the Digital Millennium Copyright Act or “DMCA.” In Victor Elias Photography, LLC v. Ice Portal, Inc., the Eleventh Circuit held that the DMCA has a “double scienter requirement”
- [Two More Comedians Added to Pandora Battle over Licenses to Perform Jokes](https://www.thetmca.com/two-more-comedians-added-to-pandora-battle-over-licenses-to-perform-jokes/) - “Writing is thinking and thinking is hard work.” – Lewis Black Over his highly successful career, comedian Lewis Black has certainly done his share of hard work writing jokes. He also has copyrighted them. Now he and a host of other famous comedians are seeking compensation for the use of those jokes by streaming giant
- [It’s Alive? The Open Question of Ownership over the Creations of an AI](https://www.thetmca.com/its-alive-the-open-question-of-ownership-over-the-creations-of-an-ai/) - Who owns the creations of an artificial intelligence? From ownership in general to copyright and patent law, the answer is unclear. However, the question has taken on a new sense of urgency: inventors are creating increasingly advanced AI systems which can paint Rembrandt-style works of art, generate paragraphs of text from a single sentence, design
- [Small Claims, Big Questions: The New Copyright Claims Board Gets Its Debut](https://www.thetmca.com/small-claims-big-questions-the-new-copyright-claims-board-gets-its-debut/) - After two years of groundwork, the Copyright Office’s new forum for hearing small copyright claims is finally here. The Copyright Claims Board (CCB) began accepting claims on June 16 and seeks to provide a streamlined alternative to resolving copyright disputes in federal court. It is unclear how successful the CCB will be. The CCB’s inability
- [AI Artwork: Worth a Thousand Words, but Zero Copyright Protection?](https://www.thetmca.com/ai-artwork-worth-a-thousand-words-but-zero-copyright-protection/) - Technology is changing, but is copyright law keeping up? Stephen Thaler clearly believes it is not and has sued the U.S. Copyright Office over its refusal to register artwork created by his artificial intelligence software. You may remember Thaler from a previous TMCA article discussing his bid to obtain a patent for an AI-generated invention,
- [Federal Judge Demonstrates High Bar for DTSA Fee Shifting](https://www.thetmca.com/federal-judge-demonstrates-high-bar-for-dtsa-fee-shifting/) - A federal court judge in the U.S. District Court for the Southern District of New York recently denied the prevailing Defendants’ motion for $11.6 million in attorneys’ fees in a trade secret misappropriation case between two large competitors providing translation services. Despite the Court indicating that the lawsuit had not been filed and pursued in
- [Trademark Bully or Meritorious Plaintiff? Taco John’s vs. Taco Chon](https://www.thetmca.com/trademark-bully-or-meritorious-plaintiff-taco-johns-vs-taco-chon/) - A trademark infringement lawsuit filed in Minnesota by Taco John’s against Minnesota Mexican restaurant Taco Chon Mexican Grill is heating up in federal court and the court of public opinion. Taco John’s is a large restaurant franchise founded in the late 1960s, with more than 300 locations centered in the mid-western United States. Taco Chon
- [Yes, Copyright Can Protect Monstrous Mountains](https://www.thetmca.com/yes-copyright-can-protect-monstrous-mountains/) - Typically, Godzilla and other kaiju (Japanese for “strange beast” and also referring to a genre of fiction involving giant monsters) use their armored skin, massive size, and superpowers to protect themselves against almost anything, including human armies, natural disasters, and other kaiju. Perhaps the most powerful non-physical weapon/defense in a kaiju’s arsenal is copyright law.
- [Peppa Pig: Intellectual Property Infringement as a Form of Retaliatory Sanction](https://www.thetmca.com/peppa-pig-intellectual-property-infringement-as-a-form-of-retaliatory-sanction/) - To end the harm following Russia’s invasion of Ukraine on February 24, 2022, numerous forms of sanctions were imposed against the Russian government and economy. Many Western governments limited access to financial systems, denied entry of Russian nationals into their countries, and prohibited the import and export of certain Russian commodities. Even some Western-based companies
- [Most. Important. Copyright. Fair. Use. Case. Ever!](https://www.thetmca.com/most-important-copyright-fair-use-case-ever/) - Hyperbolic descriptions of the supposed importance of cases dealing with intellectual property rights are as numerous as they are unfounded, but that is not true when it comes to The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, Case No. 21-869, in which the U.S. Supreme Court just granted certiorari. It is no
- [In-N-Out Trade Dress Dispute Part III: To Squirt, or Not to Squirt?](https://www.thetmca.com/in-n-out-trade-dress-dispute-part-iii-to-squirt-or-not-to-squirt/) - Welcome to the final chapter of our Burger War Trilogy. In our earlier installments, Part I and Part II, we discussed the secondary meaning surveys proffered by both parties in this trade dress dispute. We now turn to In-N-Out’s likelihood of confusion study in this case as it provides the perfect opportunity to discuss a
- [To Err is Human: Supreme Court Holds That Mistakes of Law in Copyright Applications Fall Under Safe Harbor](https://www.thetmca.com/to-err-is-human-supreme-court-holds-that-mistakes-of-law-in-copyright-applications-fall-under-safe-harbor/) - Most lawyers are familiar with the well-known legal maxim that “ignorance of the law is no excuse.” In a 6-3 opinion issued on February 24, 2022, in a copyright case, the Supreme Court nonetheless held that ignorance of the law is a valid excuse in certain circumstances. Let’s take a look at the decision to
- [In-N-Out Burger Trade Dress Dispute Part II: Where’s The Beef?](https://www.thetmca.com/in-n-out-burger-trade-dress-dispute-part-ii-wheres-the-beef/) - Last week we introduced our readers to the imbroglio featuring the burger behemoth In-N-Out, who accused upstart Doll N’ Burgers of infringing In-N-Out’s registered and unregistered trade dress. Typical of these sorts of savory squabbles, both sides retained consumer survey experts, both experts took broadsides from the opposing party, and the Court was left to
- [In-N-Out Trade Dress Dispute: Court Finds Alleged Flaws in Survey Evidence a “Nothing Burger”](https://www.thetmca.com/in-n-out-trade-dress-dispute-court-finds-alleged-flaws-in-survey-evidence-a-nothing-burger/) - A burger brouhaha involving the Lanham Act is well underway in the Wolverine state. Plaintiff In-N-Out Burgers operates hundreds of fast food joints in the West. Defendant Doll n’ Burger recently opened two locations in Michigan. In-N-Out filed suit in Michigan alleging that Doll n’ Burger is infringing In-N-Out’s registered and unregistered trade dress. Both
- [Dear Online Retailers: The FTC Is Watching How You Handle Customer Reviews](https://www.thetmca.com/dear-online-retailers-the-ftc-is-watching-how-you-handle-customer-reviews/) - This week, the FTC finalized an order settling a complaint alleging that an online fashion retailer blocked negative reviews of its products on its e-commerce site. The penalty: a $4.2 Million fine, 10 years of record keeping obligations and 20 years of compliance monitoring. The charge: the retailer automatically published four and five star reviews
- [How Far Can Injunctions Go? Part II: The Extraterritorial Reach of Trademark Injunctions from U.S. to Europe](https://www.thetmca.com/how-far-can-injunctions-go-part-ii-the-extraterritorial-reach-of-trademark-injunctions-from-u-s-to-europe/) - In our last post on extraterritorial injunctions, we examined a recent decision from Hong Kong and how a brand owner was able to successfully enjoin infringers in mainland China. We will now look at a recent case in the U.S. and how the brand owner was able to reach conduct in Europe. From U.S. to
- [How Far Can Injunctions Go? Part I: The Extraterritorial Reach of Trademark Injunctions from Hong Kong to China](https://www.thetmca.com/how-far-can-injunctions-go-part-i-the-extraterritorial-reach-of-trademark-injunctions-from-hong-kong-to-china/) - Foreign brand owners whose brands are being infringed in other countries may have an avenue to pursue extraterritorial injunctions. In this two part post, we examine how two courts: one in Hong Kong and the other in the U.S. have recently ruled to enforce injunctions against trademark infringers in Mainland China and Europe, respectively. From
- [“All the Way Up” to the Second Circuit](https://www.thetmca.com/all-the-way-up-to-the-second-circuit/) - Fly Havana and Fat Joe are heading “All the Way Up” to the Second Circuit for “Another Round.” Earlier this month Fly Havana appealed New York District Court Judge Naomi Reice Buchwald’s conclusion that Fly Havana had transferred all ownership rights to the song “All the Way Up” to Fat Joe. Fly Havana had sued
- [“Dark Horse” Copyright Claim Against Katy Perry – Hoofing it on a Stairway to Heaven?](https://www.thetmca.com/dark-horse-copyright-claim-against-katy-perry-hoofing-it-on-a-stairway-to-heaven/) - We previously reported on the Marcus Gray, et al. (“Gray”) v. Katheryn Hudson, et al. (“Perry”) case on August 2nd and August 15th of 2019. When we initially reported the details of this case, Gray was awarded damages to the tune of $2.8 million on the basis that Perry’s “Dark Horse” song infringed upon Gray’s “Joyful
- [Intellectual Infrastructure: IP 101 for Construction and Design Professionals](https://www.thetmca.com/intellectual-infrastructure-ip-101-for-construction-and-design-professionals/) - From the initial design plans, to the choice and fabrication of materials, to the finished project, there are many components of a construction or infrastructure project that can give rise to intellectual property (“IP”) issues for construction and design professionals. Believe it or not, IP plays a key role in any construction project and is
- [Important Trademark Developments from China for 2022: What US Brand Owners Need to Know](https://www.thetmca.com/important-trademark-development-from-china-for-2022-what-us-brand-owners-need-to-know/) - China has been speeding up its legislative efforts in protecting trademark rights and improving its trademark administration. In 2021, China issued a number of new rules and regulations on trademark practice. Here is a quick summary of some important legal and practical updates from the past year that foreign brand owners and foreign trademark practitioners
- [What Comes Next for the NCAA Name, Image, and Likeness Rules?](https://www.thetmca.com/what-comes-next-for-the-ncaa-name-image-and-likeness-rules/) - image by fitzcrittle / Shutterstock.com There have been massive changes in American collegiate sports since this past summer: On June 30, 2021, the National Collegiate Athletic Association (“NCAA”) radically changed course and announced that it would no longer penalize student athletes who profit off of their name, image, and likeness (“NIL”). As the clock struck
- [Judge Rejects Greek Freak’s Shot for Damages](https://www.thetmca.com/judge-rejects-greek-freaks-shot-for-damages/) - We previously wrote about a series of trademark lawsuits filed by NBA MVP and now NBA champion Giannis Antetokounmpo over the use of his nickname “Greek Freak”. Those lawsuits all contained similar allegations: that the defendants sold merchandise online bearing Antetokounmpo’s name, nickname and/or likeness, including Antetokounmpo’s trademarked GREEK FREAK. While those cases all appear
- [Federal Court Blocks Effort to “Revive” J.W. Dant Bourbon Brand Already Alive](https://www.thetmca.com/federal-court-blocks-effort-to-revive-j-w-dant-bourbon-brand-already-alive/) - Just in time for the holidays, the U.S. District Court for the Western District of Kentucky issued a decision steeped in two rich holiday traditions—family lore and alcohol. On December 16, 2021, the court entered a preliminary injunction against Log Still Distilling, LLC in a trademark infringement and unfair competition action brought earlier this year
- [Miramax/Tarantino Suit Highlights NFT Difficulties in Mysterious Suitcase of Copyrights Rights](https://www.thetmca.com/miramax-tarantino-suit-highlights-nft-difficulties-in-mysterious-suitcase-of-copyrights-rights/) - Image from Mario Breda / Shutterstock.com Non-Fungible Tokens (NFTs) have made another court appearance, with Miramax, LLC filing a complaint in the Central District of California in an attempt to stop Quentin Tarantino from auctioning off seven Pulp Fiction-based NFTs. At the center of the dispute is whether the content Tarantino wants to sell as
- [An Action Figure and an Instagram Post Prove Decisive in Photographer’s Copyright Suit Against Miramax](https://www.thetmca.com/an-action-figure-and-an-instagram-post-prove-decisive-in-photographers-copyright-suit-against-miramax/) - Image from Kraft74 / Shutterstock.com In 1994, Firooz Zahedi was hired by Miramax to photograph the actress Uma Thurman as her character Mia Wallace in the film Pulp Fiction. Miramax paid Zahedi $10,000 for his work, used one of his photographs of Mia Wallace laying on a bed, legs crossed behind her, smoking a cigarette,
- [TTAB Rules That Reckless Disregard Satisfies the Intent to Deceive Standard for Fraud](https://www.thetmca.com/ttab-rules-that-reckless-disregard-satisfies-the-intent-to-deceive-standard-for-fraud/) - Twelve years after the Federal Circuit’s landmark In re Bose decision on fraud, the U.S. Trademark Trial and Appeal Board (“TTAB”) has answered one of the questions not reached by Bose: whether reckless disregard of the truth or falsity of a material statement in a PTO filing satisfies the intent to deceive standard for fraud.
- [CBD Pain Cream Producer Feels the Pain from Dismissal of its Trade Secrets Claims for Lack of Misappropriation Evidence](https://www.thetmca.com/cbd-pain-cream-producer-feels-the-pain-from-dismissal-of-its-trade-secrets-claims-for-lack-of-misappropriation-evidence/) - A federal magistrate judge in the United States District Court for the Southern District of Florida, in a trade secrets dispute involving CBD-based pain cream, recently granted summary judgment in favor of all but one defendant. The Court’s ruling is a useful illustration of why it is important to present actual (rather than speculative) evidence
- [Roblox/NMPA Settlement - A Roadmap for New Partnerships between Music and Gaming Industries?](https://www.thetmca.com/roblox-nmpa-settlement-a-roadmap-for-new-partnerships-between-music-and-gaming-industries/) - On September 27, 2021, the National Music Publishers’ Association (“NMPA”) issued a press release stating that it had settled its claims against video game company Roblox, bringing an end to the copyright infringement case its members filed against Roblox in the Central District of California on June 9, 2021. The plaintiffs in that litigation were
- [A Cautionary Tale of One Independent Press’s Claim of Federal Copyright Protection](https://www.thetmca.com/a-cautionary-tale-of-one-independent-presss-claim-of-federal-copyright-protection/) - photo by EQRoy / Shutterstock.com Earlier this summer, U.S. District Judge Amy Berman Jackson refused to buy plaintiff, Valancourt Books, LLC’s, claims that the Copyright Office of the United States unconstitutionally demanded books for free, when Judge Jackson granted summary judgment for the defendants Shira Perlmutter and Merrick Garland (acting in their respective official capacities
- [Scaling Cannabis Brands Nationally – the Highs (and Lows)](https://www.thetmca.com/scaling-cannabis-brands-nationally-the-highs-and-lows/) - Late last month, Dorsey led a panel at the inaugural Investing in Women Cannabis Pioneers – The Brand Builders investor conference put on by Roth. The panel was made up of female business leaders at Bhang, Leafly, Insa, Tilray and Hollister Biosciences discussing the topic of scaling cannabis brands nationally across state lines despite current legal
- [You Can Win a UDRP for a .SUCKS Domain . . . Sometimes](https://www.thetmca.com/you-can-win-a-udrp-for-a-sucks-domain-sometimes/) - A recent Uniform Domain Name Dispute Resolution Policy (“UDRP”) decision provided long-awaited guidance for challenging .SUCKS domain names. Sanofi v. Privacy Hero Inc./Honey Salt, ltd, which was decided by a three arbitrator panel of the World Intellectual Property Office (“WIPO”), was the first in a line of decisions to hold that use of the generic
- [FTC to Brands: We Will Not Tolerate Fake Reviews and Other Misleading Endorsements – Monetary Penalties Are Coming](https://www.thetmca.com/ftc-to-brands-we-will-not-tolerate-fake-reviews-and-other-misleading-endorsements-monetary-penalties-are-coming/) - Earlier this week the FTC announced that it had sent more than 700 Notice of Penalty Offense letters to major advertisers, leading retailers, large consumer product companies and major ad agencies to put everyone on notice that fake consumer reviews and other misleading endorsements will not be tolerated. The letters also placed the recipients on
- [The Future of Ad Law: A Wrap Up from the 2021 NAD Conference](https://www.thetmca.com/the-future-of-ad-law-a-wrap-up-from-the-2021-nad-conference/) - At the end of September and beginning of October we spent some extra screen time attending the annual NAD Conference that once again was held virtually in New York. We heard from a number of great speakers, including the Hon. Rebecca Kelly Slaughter, Commissioner at the Federal Trade Commission, Mary Engel, EVP at BBB National
- [You Know His Name (Jason). You Know the Story (Friday the 13th). But Do You Know Who Owns Jason? The Second Circuit Does – and the Answer May Surprise You.](https://www.thetmca.com/you-know-his-name-jason-you-know-the-story-friday-the-13th-but-do-you-know-who-owns-jason-the-second-circuit-does-and-the-answer-may-surprise-you/) - As of today, there have been twelve (yes, twelve!) movies released as part of the Friday the 13th series of horror films, as well as a television series. For those of you who have not seen any of these films, they are not for the faint of heart. The focus of the Friday the 13th
- [First a Meme, Then a Cryptocurrency, and Now an $80 Billion Brand? Dogecoin Continues Its Rollercoaster Journey into the USPTO.](https://www.thetmca.com/first-a-meme-then-a-cryptocurrency-and-now-an-80-billion-brand-dogecoin-continues-its-rollercoaster-journey-into-the-uspto/) - What first started as a meme featuring a fluffy dog with poor grammar has now resulted in a trademark fight over the ownership of an estimated $80 billion brand. If the progression of this Internet sensation has left your head spinning, you are certainly not alone. Its history is as much a rollercoaster as its
- [From Pocket to Wrist: Decision for Vortic Affirmed on Appeal](https://www.thetmca.com/from-pocket-to-wrist-decision-for-vortic-affirmed-on-appeal/) - We have previously written about the trademark dispute between Vortic—a watchmaker that restores antique pocket watches, and converts them into wrist watches—and the venerated Hamilton Watch Company, which produced its first watch in the 1890s and is still in business today. Vortic uses a restored movement (the internal mechanism), face and hands from pocket watches
- [Influenced by Social Media Marketing, the Ninth Circuit finds Personal Jurisdiction over Foreign Defendant under Federal Rule 4(k)(2)](https://www.thetmca.com/influenced-by-social-media-marketing-the-ninth-circuit-finds-personal-jurisdiction-over-foreign-defendant-under-federal-rule-4k2/) - In a recent decision, the Ninth Circuit Court of Appeals found that an Australian cosmetic company is subject to the personal jurisdiction of a federal district court in California despite having no traditional “minimum contact” ties to the state of California. The decision relies on Federal Rule of Civil Procedure 4(k)(2), the rarely-invoked rule authorizing
- [Hockey League Skates To Summary Judgment Win Over Gulls](https://www.thetmca.com/hockey-league-skates-to-summary-judgment-win-over-gulls/) - The minor hockey league ECHL iced a win over the San Diego Gulls hockey club earlier this month when a judge in the Central District of California granted ECHL’s motion for summary judgment dismissing all of the Gulls’ claims. The court found that because a 2015 agreement between the parties did not transfer any copyright
- [Truth or Fiction . . . or Copyright Infringement?](https://www.thetmca.com/truth-or-fiction-or-copyright-infringement/) - Author Denise Shull lost her challenge to the Showtime television show Billions, which she claims copied the character bearing her name in Shull’s book Market Mind Games: A Radical Psychology of Investing, Trading and Risk. Shull alleges that she was never paid for the time she spent consulting with Billions writers and actors, and that
- [The Other Shoe Drops: Court Boots Doc Martens’ Legal Expert in Trade Dress Donnybrook](https://www.thetmca.com/the-other-shoe-drops-court-boots-doc-martens-legal-expert-in-trade-dress-donnybrook/) - We previously blogged about Airwair Int’l v. Pull & Bear and how Doc Martens successfully challenged Defendant’s expert who opined on secondary meaning and likelihood of confusion. Now, the shoe is on the other foot. Doc Martens’ expert found himself in the hot seat for offering improper legal conclusions regarding Doc Martens’ trade dress rights.
- [Environmental Advocate Wins Battle Against “Australia’s Greatest Liability”](https://www.thetmca.com/environmental-advocate-wins-battle-against-australias-greatest-liability/) - Greenpeace, the well-known environmental campaign organization, recently prevailed over an electricity giant in the Australian case AGL Energy Limited v. Greenpeace Australia Pacific Limited. Australia’s parody and satire law is similar to the US and this case presents and interesting application of these standards. The dispute began in May 2021 when AGL Energy Ltd. (“AGL”)
- [In Europe, There is No “Free Parking” for Re-Filers](https://www.thetmca.com/in-europe-there-is-no-free-parking-for-re-filers/) - In the much-anticipated Hasbro Inc. v. EUIPO (T-663/19) decision, the General Court of the European Union announced a new approach to evaluating bad faith in trademark filings and signaled a more aggressive stance toward the practice of “evergreening.” The dispute centered on Hasbro’s registered EU trademark (“EUTM”) for the word mark MONOPOLY. Hasbro registered this
- [It’s a Hard Knock Life for Damon Dash’s Planned NFT Sale](https://www.thetmca.com/its-a-hard-knock-life-for-damon-dashs-planned-nft-sale/) - Roc-A-Fella Records (“RAF”) owners Jay-Z and Damon Dash are clashing over Dash’s plans to sell an NFT (“nun-fungible token”) representing either a 1/3 share of the copyright to Jay-Z’s album Reasonable Doubt (if you believe RAF and Jay-Z) or a 1/3 ownership interest in RAF as a whole (if you believe Dash). If you’re wondering
- [Start Your Data Compliance Countdown! Colorado Becomes Third US State to Enact Privacy Law](https://www.thetmca.com/start-your-data-compliance-countdown-colorado-becomes-third-us-state-to-enact-privacy-law/) - Certain Colorado companies and others targeting Coloradans will soon be subject to the newly enacted Colorado Privacy Act (“CPA”), signed into law by Gov. Jared Polis on July 8, 2021. Colorado joins California and Virginia as the third state to enact its own comprehensive consumer data privacy legislation. Who must comply with the new CPA
- [SCOTUS Agrees to Consider Whether Copyright Act Section 411 Requires an Intent to Defraud](https://www.thetmca.com/scotus-agrees-to-consider-whether-copyright-act-section-411-requires-an-intent-to-defraud/) - The U.S. Supreme Court recently granted certiorari to tackle a technical copyright registration question: when a defendant alleges knowing inaccuracies in a copyright registration, does 17 U.S.C. § 411 require referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in the subject copyright
- [Paper Source Bankruptcy Offers Lessons for Vendors Playing Their Cards](https://www.thetmca.com/paper-source-bankruptcy-offers-lessons-for-vendors-playing-their-cards/) - On March 2, 2021, stationery and gift retailer Paper Source filed for chapter 11 bankruptcy, stating in court filings that effects of the COVID-19 pandemic damaged its finances and operations. Paper Source stated that in bankruptcy, it sought to sell its assets, reevaluate and renegotiate leases, and continue operations, while minimizing adverse impact on trade
- [Scantily Clad Survey Gets Bounced Out in Strip Club Scuffle](https://www.thetmca.com/scantily-clad-survey-gets-bounced-out-in-strip-club-scuffle/) - Survey evidence in Lanham Act cases can often times be pretty revealing. If you develop it correctly, survey evidence can be a key ingredient to a successful outcome. But if you develop it incorrectly it will show flaws that you and your expert wont want the world to see. This blog post tells the tale
- [Raptors Secure Major Off-Court Win in Trademark Contest](https://www.thetmca.com/raptors-secure-major-off-court-win-in-trademark-contest/) - This season the Toronto Raptors missed the NBA playoffs for the first time since 2013. But this year has not been a total bust for the 2019 NBA Champions, because last month the Trademark Trial & Appeal Board dismissed claims against Maple Leaf, Inc. (owner of the Raptors’ IP) by Monster Energy Drinks, finding that
- [UGG, Is it Finally Over?](https://www.thetmca.com/ugg-is-it-finally-over/) - A long-running battle between Deckers Outdoor Corp., the makers of UGG boots, and Australian Leather PTY Ltd. may finally be over after a May 7 ruling by the United States Court of Appeals for the Federal Circuit. The battle began in 2016 in the Northern District of Illinois when Deckers sued Australian Leather for trademark
- [(Updated) Federal Circuit Gives a Makeover to $66 Million Judgment Against Beauty Giant](https://www.thetmca.com/updated-federal-circuit-gives-a-makeover-to-66-million-judgment-against-beauty-giant/) - Earlier this month, the U.S. Court of Appeals for the Federal Circuit reversed a $66 million dollar judgment against beauty industry giant L’Oréal for patent infringement, trade secret misappropriation, and a related breach of a non-disclosure agreement. While the Court remanded for a trial on patent infringement and damages on the patent infringement claim, it
- [Federal Circuit Gives a Makeover to $66 Million Judgment Against Beauty Giant](https://www.thetmca.com/federal-circuit-gives-a-makeover-to-66-million-judgment-against-beauty-giant/) - Earlier this month, the U.S. Court of Appeals for the Federal Circuit reversed a $66 million dollar judgment against beauty industry giant L’Oréal for patent infringement, trade secret misappropriation, and a related breach of a non-disclosure agreement. While the Court remanded for a trial on patent infringement and damages on the patent infringement claim, it
- [Even After a Supreme Court Win, Romag Fasteners Can’t Get a Big Jury Verdict to Stick](https://www.thetmca.com/even-after-a-supreme-court-win-romag-fasteners-cant-get-a-big-jury-verdict-to-stick/) - Trademark law aficianados have followed the progress of Romag Fasteners v. Fossil from District Court to the Federal Circuit to the Supreme Court and back again. We previously blogged about the Supreme Court decision here. In the latest installment, the Connecticut District Court refused to enter a $6.7 million advisory jury award, instead awarding a
- [Nintendo Commences Legal Battle Against Real World Bowser](https://www.thetmca.com/nintendo-commences-legal-battle-against-real-world-bowser/) - Any fan of Nintendo games and consoles can tell you that the company’s most iconic virtual villain is King Bowser Koopa, generally referred to as simply “Bowser.” In a strange instance of life imitating art, Nintendo filed a copyright infringement complaint on April 16, 2021, against a real-life Bowser—i.e., Gary Bowser. While King Koopa’s villainy
- [New York Post-Mortem Statutory Right of Publicity Set to Take Effect](https://www.thetmca.com/new-york-post-mortem-statutory-right-of-publicity-set-to-take-effect/) - A new post-mortem right of publicity bill that was signed into law by Governor Cuomo on November 30, 2020, will soon take effect on May 29, 2021. The new law recognizes post-mortem rights of publicity in New York for the first time. Broadly speaking, no right of publicity exists at the federal level and so
- [Google v. Oracle: SCOTUS Sides with Google on Fair Use, But Is The Ruling Narrower Than It Seems?](https://www.thetmca.com/google-v-oracle-scotus-sides-with-google-on-fair-use-but-is-the-ruling-narrower-than-it-seems/) - On April 5, 2021, the Supreme Court issued its decision in Google v. Oracle, ruling 6-2 in Google’s favor on the issue of fair use. So ends a decade-plus battle between two tech giants that many viewed as having the potential to reshape how computer programs are written and licensed across the software industry. Google’s
- [The Rook vs. Deschain: Superficial Similarities or Superhero Copycat?](https://www.thetmca.com/the-rook-vs-deschain-superficial-similarities-or-superhero-copycat/) - In the 1970s, William DuBay created the comic book character, Restin Dane, also known by his superhero alter ego, “The Rook.” Dane, a wealthy scientist and inventor residing in an Arizona house shaped like a rook chess piece, is a time traveler who “will go anywhere—any time—in search of adventure!” Similar to other famous superheroes,
- [A Tale of Two Princes](https://www.thetmca.com/a-tale-of-two-princes/) - An important decision by the Second Circuit in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, Case No. 19-2420-cv (2d Cir. Mar. 26, 2021), has, in important respects, upended how the defense of fair use is applied in copyright cases, with potentially major ramifications that transcend the “appropriation art” with which Warhol
- [Don’t Go Rogue in Proving Up Consumer Deception](https://www.thetmca.com/dont-go-rogue-in-proving-up-consumer-deception/) - Consumer surveys. Love ’em or hate ’em, they are an evidentiary staple in many Lanham Act disputes. A well designed and executed survey can bolster your case, or can act as a powerful antidote to counteract your opponent’s. Survey evidence is not, legally speaking, strictly necessary. That said, courts routinely—indeed, almost reflexively—treat the absence of
- [Made in the USA? It Better be!](https://www.thetmca.com/made-in-the-usa-it-better-be/) - A recent Federal Trade Commission (“FTC”) settlement reinforces the need for companies to substantiate MADE IN THE USA product claims in advertisements. Gennex Media LLC and its owner, Akil Kurji, recently found themselves the subject of an FTC investigation regarding claims made on their Brandnex website, social media sites, and in a YouTube video that
- [E-Commerce and Trademark Infringement: OSU Wins a Battle at the Sixth Circuit](https://www.thetmca.com/e-commerce-and-trademark-infringement-osu-wins-a-battle-at-the-sixth-circuit/) - The Ohio State Buckeyes may have lost the college football national championship to Alabama earlier this year but OSU can take some consolation from its recent victory in a trademark case before the Sixth Circuit Court of Appeals. In The Ohio State University v. Redbubble, Inc., Case No. 19-3388 (6th Cir. Feb. 25, 2021), the
- [Look What You Made Her Do: Taylor Swift Brings Her Own Lawsuit Against Evermore Park](https://www.thetmca.com/look-what-you-made-her-do-taylor-swift-brings-her-own-lawsuit-against-evermore-park/) - In December 2020, Taylor Swift released her ninth studio album, Evermore. The album came as somewhat of a surprise, following the release of her eighth album, Folklore, by only 5 months. Evermore sold over 1 million copies in its first week, helped propel Swift to being the most streamed artist on Apple Music in 2020,
- ["Sleevey Wonders” are “Arm Tight” in California Lawsuit](https://www.thetmca.com/sleevey-wonders-are-arm-tight-in-california-lawsuit/) - The women’s hosiery powerhouse, Spanx, is being sued for allegedly copying designs of a small shapewear company (R and A Synergy, LLC, v. Spanx, Inc., (C.D. Cal. 2017)). In the Complaint filed on December 21, 2017 in the Western District of California, R and A Synergy claimed that Spanx copied the design of and advertising
- [An FTC Twofer – Made In USA Claims and Selfie/Self-Certification Marks](https://www.thetmca.com/an-ftc-twofer-made-in-usa-claims-and-selfie-self-certification-marks/) - Last week the FTC published a Complaint and proposed Consent Order in In re Bollman Hat Company et al. addressing two hot topics: Made in USA ad claims, which have been an agency focus for decades, and “selfie” and self-certification marks, a more recent regulatory interest. Avid readers of this blog will know that we've
- [Tune Up: Initial Lessons from Gibson’s Most Recent Trade Dress Lawsuit](https://www.thetmca.com/tune-up-initial-lessons-from-gibsons-most-recent-trade-dress-lawsuit/) - Shortly before Christmas 2017, Gibson Brands sued Funko, a maker of pop culture dolls, for trademark infringement relating to several of Funko’s figurines of famous musicians. Among the dolls named in the complaint are Slash (Guns N’ Roses) and Kirk Hammett (Metallica). Gibson’s complaint centers on rights it claims to the shapes of the various
- [Vegas Hockey Team Faces Off Against The U.S. Army Over Trademark Dispute](https://www.thetmca.com/vegas-hockey-team-faces-off-against-the-u-s-army-over-trademark-dispute/) - The Vegas Golden Knights, an expansion team based in Las Vegas that joined the National Hockey League (NHL) earlier this year, have had a surprisingly successful “rookie year,” both on the ice and at the box office. This month, however, the Golden Knights encountered opposition to their efforts to register the mark “Las Vegas Golden
- [About that Dodge Super Bowl Ad](https://www.thetmca.com/about-that-dodge-super-bowl-ad/) - Did you catch that Dodge commercial everyone is talking about with the Rev. Dr. Martin Luther King Jr. voiceover? Many viewers took to Twitter last night to express their belief that the use of the speech to sell trucks was inappropriate and not in line with Dr. King’s message. We at the TMCA were more
- [Will TTAB’s First Precedential Decision of 2018 Lead to Better Quality Examination of Statements of Use?](https://www.thetmca.com/will-ttabs-first-precedential-decision-of-2018-lead-to-better-quality-examination-of-statements-of-use/) - In January 2015, Pitney Bowes filed an intent-to-use trademark application for the logo shown here for use with mailing services, including postal delivery, parcel delivery, and delivery of mail to post offices for posting (Serial No. 86502157). Pitney Bowes later filed its specimen of use, consisting of a printout from its website with a photograph
- [Let the Games Begin – Let Marketers Beware!](https://www.thetmca.com/let-the-games-begin-let-marketers-beware/) - You’ve heard it before and you’ll hear it again - Stay away from any advertising or promotional ideas that suggest authorization, sponsorship or an official connection to the Olympics. This means not using the Olympic Rings in advertising or even #Olympics on your brand’s social media account, especially in the next two weeks. And don’t
- [Cannabis Branding and Free Speech Considerations](https://www.thetmca.com/cannabis-branding-and-free-speech-considerations/) - A recent out-of-court settlement following an 8th Circuit decision in Gerlich v. Leath highlights some of the unique legal issues that surround the branding of products in the cannabis space. In 2012, two students at Iowa State University (ISU), Paul Gerlich and Erin Furleigh, secured approval from ISU’s trademark licensing office to use the ISU
- [To EatRight, It May be Too Late](https://www.thetmca.com/to-eatright-it-may-be-too-late/) - The Ninth Circuit breathed new life, for now, into a trademark infringement suit brought by Eat Right Foods Ltd.’s (“ERF”) against Whole Foods Market, Inc. The district court had granted summary judgment for Whole Foods after concluding ERF’s claims were barred by the doctrines of laches and acquiescence. But the Ninth Circuit reversed, concluding there were
- [Beyoncé, Coldplay and Ed Sheeran Skating Debuts – Solid Gold at the Olympics](https://www.thetmca.com/beyonce-coldplay-and-ed-sheeran-skating-debuts-solid-gold-at-the-olympics/) - With the lifting of the International Skating Union ban on the use of music with lyrics, the Olympics in Pyeongchang is the first in which singles and pairs ice skaters can compete to music with lyrics (Ice Dancers have been able to skate to vocals since the 1990s). While this adjustment may be the catalyst
- [Swift Shakes Off Copyright Infringement Lawsuit](https://www.thetmca.com/swift-shakes-off-copyright-infringement-lawsuit/) - Pop artist Taylor Swift shook off a copyright infringement lawsuit filed by Sean Hall and Nathan Butler in the U.S. District for the Central District of California, Sean Hall d.b.a. Gimme Some Hot Sauce Music, et al. v. Taylor Swift, et al. Plaintiffs composed the song Playas Gon’ Play, which was recorded by the all-girl group
- [UK Courts and Regulator Ratcheting Up Privacy and Data Protection Enforcement](https://www.thetmca.com/uk-courts-and-regulator-ratcheting-up-privacy-and-data-protection-enforcement/) - Three recent cases demonstrate that data privacy enforcement is on the rise in the United Kingdom. These and similar cases signal a new direction in enforcement action suggesting higher penalties, more frequent prosecutions and the casting of a wider net to hold individual and organisations liable for data offences and breaches. In the first ever
- [SEC Issues New Cybersecurity Guidance](https://www.thetmca.com/sec-issues-new-cybersecurity-guidance/) - On February 26, in the wake of significant and far-reaching cybersecurity breaches (e.g., the Equifax Data Breach), the SEC published interpretive guidance to assist public companies in preparing disclosures about cybersecurity risks and incidents. The SEC recognizes that cybersecurity threats present an “ongoing risk” to all public companies which can lead to “substantial costs and
- [Laudatory Terms – Super Trademarks or Not Worth the Trouble?](https://www.thetmca.com/__trashed-2/) - Hello loyal TMCA readers – This is the first installment of what we hope to be an informative series of posts called Quirky Questions: TMCA Edition. Our labor and employment colleagues have a great blog, Quirky Questions, where they answer unanticipated questions regarding workforce issues. If you have employment questions (and we know many of
- [There’s an App for That; Now There’s .APP for That Too](https://www.thetmca.com/theres-an-app-for-that-now-theres-app-for-that-too/) - As many of our readers know, in 2011, ICANN, the organization that operates the internet domain name system, authorized the launch of the New gTLD Program - the largest expansion of the generic top-level domain name (“gTLD”) system on the Internet in history. Prior to the launch of this program only 22 gTLDs had been
- [Musical Artists Having A “Party and Bulls***” After Copyright Infringement Suit Dismissed](https://www.thetmca.com/musical-artists-having-a-party-and-bulls-after-copyright-infringement-suit-dismissed/) - Several musical artists, producers, publishers and songwriters, including the estate of the Notorious B.I.G and Rita Ora, are celebrating after a U.S. District judge for the Southern District of New York dismissed a copyright infringement lawsuit against them. In 1968, poet Abiodun Oyewole published the song “When the Revolution Comes.” The song warns of a coming
- [Did The 9th Circuit "Blur the Lines" in its Latest Music Copyright Case?](https://www.thetmca.com/did-the-9th-circuit-blur-the-lines-in-its-latest-music-copyright-case/) - As we entered the first full day of the equinox yesterday, a split panel of the Ninth Circuit Court of Appeals handed the heirs of Marvin Gaye a decisive victory that will no doubt leave them with a spring in their steps. The Court affirmed the jury verdict and multi-million dollar damage award in the
- [Assembled in the USA – The FTC Confirms What’s Required](https://www.thetmca.com/assembled-in-the-usa-the-ftc-confirms-whats-required/) - Deceptive “Made in USA” advertising and labeling claims have received a lot of attention from the FTC in recent years, reflecting the agency’s recognition that USA-origin claims are a persuasive selling point and should not be false and misleading. Many of the FTC’s enforcement actions have emphasized that “Made in USA” should not be used
- [de Havilland vs Feud - FX Wins Round in California Court of Appeal](https://www.thetmca.com/de-havilland-vs-feud-fx-wins-round-in-california-court-of-appeal/) - It is hard to imagine that any one person could initiate separate lawsuits resulting in decisions of substantial importance to the entire U.S. entertainment industry. And when that person is iconic actress Olivia de Havilland – best known for her roles in “Gone With the Wind,” “The Heiress” and dozens of other films from Hollywood’s
- [PTO’s Rejection of Marks Related to Marijuana Should Be Found Unlawful](https://www.thetmca.com/ptos-rejection-of-marks-related-to-marijuana-should-be-found-unlawful/) - The United States Patent and Trademark Office rejects trademark applications when it determines that the use of the mark is unlawful under the Controlled Substances Act. See In re Brown, 119 USPQ.2d 1350 (TTAB 2016) In the Weeds Between Federal and State Law: Brand Name for Legal Marijuana Sales Denied Federal Registration. No statutory support for
- [Cannabis Shirt Battle Costs Iowa State Almost $1M](https://www.thetmca.com/cannabis-shirt-battle-costs-iowa-state-almost-1m/) - We previously posted about a four year legal battle that arose from a refusal by Iowa State University to let its school logos be used on t-shirts by an on-campus pro-cannabis group, and the free speech implications of this refusal. In that case, ISU was found at both the district court and appellate levels to
- [Court Case Finding that Embedded Photos Can Trigger Copyright Liability Certified for Appeal](https://www.thetmca.com/court-case-finding-that-embedded-photos-can-trigger-copyright-liability-certified-for-appeal/) - A New York federal district court has certified for appeal its recent decision in a pending case involving the unauthorized use of a photographer’s photo by a number of media outlets, maintaining the spotlight on the issue of whether the online practice of embedding violates copyright law. Goldman v. Breitbart News et al. (SDNY Feb.
- [Grand Theft Auto 5 Has Many Different Characters, But Lindsay Lohan Is Not One of Them](https://www.thetmca.com/grand-theft-auto-5-has-many-different-characters-but-lindsay-lohan-is-not-one-of-them/) - When you play the video game Grand Theft Auto 5 (“GTA 5”), the last thing you want to see is a reflection of yourself. GTA 5 is an action-adventure game that rewards the player for stealing cars and speeding away from cops. Part of the fun is that law abiding citizens can revel in digital
- [Hey, Batter Batter! – Lizard Skins Goes to Bat over its Grip Tape Designs](https://www.thetmca.com/hey-batter-batter-lizard-skins-goes-to-bat-over-its-grip-tape-designs/) - It’s finally the start of baseball season: you can almost feel the gentle spring breeze, smell the peanuts and popcorn, and hear the crack of the bat. You may also notice something more colorful, dotted, and perhaps camo-patterned wrapped around those bats: nope, it’s not an actual lizard, that’s Lizard Skins® bat grip tape. Lizard
- [Large Number of Works Set to Enter the Public Domain in 2019](https://www.thetmca.com/large-number-of-works-set-to-enter-the-public-domain-in-2019/) - An interesting article by The Atlantic highlights the large number of classic works that are set to enter the public domain on January 1, 2019. Hundreds of thousands of works, including old classics such as Noël Coward’s London Calling! musical and Charlie Chaplin’s film The Pilgrim, which were first published in 1923, are set to have
- [Major Companies Receive FTC Warranty Warnings](https://www.thetmca.com/major-companies-receive-ftc-warranty-warnings/) - In a wake-up call to businesses that offer non-compliant consumer warranties, last week the Federal Trade Commission announced that its staff had sent warning letters to six major companies that market and sell automobiles, cellular devices and video gaming systems. According to the FTC, the letters express concerns that the companies’ warranties may be prohibited
- [Choosing Your Words Carefully in Advertising: NAD Recommends Advertiser Discontinue Use of the Word "Choosing"](https://www.thetmca.com/choosing-your-words-carefully-in-advertising-nad-recommends-advertiser-discontinue-use-of-the-word-choosing/) - Almost every NAD case begins with the maxim: It is well-established that an advertiser is responsible for all reasonable interpretations of its claims, not simply the messages it intended to convey. It follows that advertisers must choose their words very, very carefully to avoid unsubstantiated claims. As we’ve blogged about before, comparative advertising can be
- [Can a Stock Photography Agency Bring a Copyright Lawsuit?  The Ninth Circuit Says “Maybe,” and the Supremes Say Nothing](https://www.thetmca.com/can-a-stock-photography-agency-bring-a-copyright-lawsuit-the-ninth-circuit-says-maybe-and-the-supremes-say-nothing/) - Can a stock photography agency bring a copyright infringement lawsuit on behalf of individual photographers? According to the Ninth Circuit, the answer is “maybe.” A recent decision provides another example of what the Ninth Circuit referred to as “the now often litigated issue of whether a stock photography agency . . . has standing under
- [Historical Fact or Creative Expression? Anastasia Copyright Dispute Proceeds to Trial](https://www.thetmca.com/historical-fact-or-creative-expression-anastasia-copyright-dispute-proceeds-to-trial/) - Winston Churchill famously commented in 1939 that Russia was “a riddle wrapped in a mystery inside an enigma.” The same could be said about Grand Duchess Anastasia Romanov, daughter of Russian Tsar Nicholas II, who was rumored to have survived the massacre of the Tsar’s family in 1918. The riddle wrapped in a mystery deepened
- [“Fastest Growing Brand” – Don’t Mix and Match Ad Claim and Substantiation](https://www.thetmca.com/fastest-growing-brand-dont-mix-and-match-ad-claim-and-substantiation/) - We blogged last week about a recent National Advertising Division case involving a Kimberly-Clark ad campaign that illustrated the well-known NAD maxim: “an advertiser is responsible for all reasonable interpretations of its claims, not simply the messages it intended to convey.” The decision also serves as a useful reminder of another frequent NAD principle of
- [Adnan Syed Won a New Trial (Again), But the Serial Podcast Lost its Own Appeal](https://www.thetmca.com/adnan-syed-won-a-new-trial-again-but-the-serial-podcast-lost-its-own-appeal/) - If you were a devoted listener of season one of Serial, you probably already know that last month the Maryland Court of Special Appeals decided that Adnan Syed deserves a new trial. What you may not know is that three days before, the Trademark Trial and Appeal Board quietly issued a precedential opinion holding that
- [Quirky Questions: Using the Registration symbol (®), the Trademark symbol (™) or Neither?](https://www.thetmca.com/quirky-questions-using-the-registration-symbol-the-trademark-symbol-or-neither/) - Maybe you’ve applied to register a trademark. Maybe you already own a registered trademark. Maybe you’re using your mark but haven’t yet applied to register it. Maybe you don’t even know what a trademark is and how it differs from a copyright. Either way, you’re wondering: when can I use the ® symbol, and
- [FTC Bugged by Unsubstantiated Mosquito Repellant Claims and Endorsements With Undisclosed Material Connections](https://www.thetmca.com/ftc-bugged-by-unsubstantiated-mosquito-repellant-claims-and-endorsements-with-undisclosed-material-connections/) - The FTC announced an enforcement action last week that focused on two hot button issues – unsubstantiated health claims and failure to disclose material connections between endorsers and product marketers. In re Mikey & Momo, Inc. et al. The Complaint and Proposed Consent Order involve a business named Aromaflage, which markets sprays and candles advertised
- [Gidget Goes Abandoned (the trademark registrations, that is)](https://www.thetmca.com/gidget-goes-abandoned-the-trademark-registrations-that-is/) - May 7 was no day at the beach for Multi-Media Tech. Ventures, Ltd., whose registrations for the mark GIDGET were cancelled in a precedential opinion by the Trademark Trial and Appeal Board. Yazhong Investing, Ltd. v. Multi-Media Tech. Ventures, Ltd. It is unclear whether there is any connection between registrant Multi-Media and the 1959 movie starring
- [OG v. OB-GYN: Dr. Drai Drops the Mic on Dr. Dre](https://www.thetmca.com/og-v-ob-gyn-dr-drai-drops-the-mic-on-dr-dre/) - Stop me if you’ve heard this one before: an OB-GYN you probably don’t know named Dr. Drai applies to register his name as a trademark and ends up in a dispute with famous rapper Dr. Dre because the rapper fears there will be confusion between the names. A three-judge administrative panel decides “DR. DRAI” looks
- [Practice Update: Amendments to Mexico IP Law](https://www.thetmca.com/practice-update-amendments-to-mexico-ip-law/) - From time to time, we publish updates on changes to trademark laws that may impact our readers and their IP registration and enforcement strategies. Once again, Mexico is making changes to its trademark system (recall Mexico added an opposition system in 2016). The proposed amendments are extensive and contain provisions related to new protection for
- [You Can’t Reject My Trademark License—Can You?](https://www.thetmca.com/you-cant-reject-my-trademark-license-can-you/) - In 2015, we wrote about the District of New Hampshire Bankruptcy Court’s decision in In re Tempnology, LLC. That decision was significant because it bucked a recent trend in bankruptcy jurisprudence to permit trademark licensees to retain their trademark rights even after debtor trademark licensors reject their licenses under Section 365(a) of the Bankruptcy Code.
- [Earning Your Stripes (or Injunction): The Ninth Circuit Reiterates the Burden of Proving Irreparable Harm in Trademark Cases](https://www.thetmca.com/earning-your-stripes-or-injunction-the-ninth-circuit-reiterates-the-burden-of-proving-irreparable-harm-in-trademark-cases/) - We previously posted about an Oregon federal district court’s summary judgment rulings, favorable to Adidas, in the storied battle between heavyweights Adidas and Skechers. (Adidas America, Inc. v. Skechers USA, Inc. (D. Or. 2017)). Earlier in the case, the district court entered a preliminary injunction prohibiting the sale and marketing of Skechers’ Onix and Cross
- [Trump Brand Loses Trademark Licensing Dispute - Rules of Contract Law Prevail](https://www.thetmca.com/trump-brand-loses-trademark-licensing-dispute-rules-of-contract-law-prevail/) - Trademark licensing disputes can present thorny issues at the intersection of contract and trademark law. And when the dispute involves the Trump brand for residential buildings, the adjudication of rights and obligations under a trademark license agreement can become national news. The decision in Residential Committee of the Board of Managers of 200 Riverside Boulevard
- [INTA SEATTLE – What You May Have Missed in the Emerald City](https://www.thetmca.com/inta-seattle-what-you-may-have-missed-in-the-emerald-city/) - If you didn’t make it to the 2018 Annual Meeting of the International Trademark Association in Seattle, or if you were there but were out enjoying the spectacular weather or spending time with colleagues and friends, the Dorsey trademark team is here to provide a brief overview of some interesting seminars we attended and tidbits
- [WTF? USPTO to Continue Refusing Scandalous and Immoral Marks…For Now](https://www.thetmca.com/wtf-uspto-to-continue-refusing-scandalous-and-immoral-marksfor-now/) - In light of ongoing litigation over an applicant’s effort to register the mark FUCT for wearing apparel, the USPTO recently issued an Examination Guide concerning the review of trademark applications under Section 2(a) of the Lanham Act, which bars registration of marks that consist of or comprise immoral or scandalous matter. The constitutionality of this
- [Home Is Where the Principal Place of Business Is](https://www.thetmca.com/home-is-where-the-principal-place-of-business-is/) - The Federal Circuit’s ongoing effort to implement TC Heartland—the Supreme Court’s landmark 2017 patent venue decision—took another step forward in May with In re BigCommerce, Inc., which vacated and remanded two decisions out of the Eastern District of Texas after defendants sought mandamus relief following denial of their motions to dismiss and transfer for improper
- [Ambush Marketing – World Cup 2018, 2019 and Beyond](https://www.thetmca.com/ambush-marketing-world-cup-2019-and-beyond/) - Even if your brand is sitting on the sidelines like the U.S. Men’s Team in the World Cup over the next month, there is no time like the present to consider the risks involved in ambush marketing because Wimbledon, the X Games, the U.S. Open, the World Series and even the 2019 Women’s World Cup
- [The New EU Copyright Directive – A Threat to Free Flow of Information or A Fair Protection for Authors and Creators?](https://www.thetmca.com/the-new-eu-copyright-directive-a-threat-to-free-flow-of-information-or-a-fair-protection-for-authors-and-creators/) - On 21 June 2018, the legal affairs committee of the EU Parliament approved the much debated Copyright In the Digital Single Market Directive. It is a short step now before the Parliament itself approves the directive, which will then need to be implemented into the domestic laws of EU member states. The Directive aims to
- [Trademarks Can Originate from Fictional Sources:  Fifth Circuit Upholds Trademark Protection for The Krusty Krab](https://www.thetmca.com/trademarks-can-originate-from-fictional-sources-fifth-circuit-upholds-trademark-protection-for-the-krusty-krab/) - Stop us if you’ve heard this one—Conan the Barbarian and a Romulan walk into the Krusty Krab. SpongeBob looks at Conan and says, “I know you, but where’s he from?” In the latest chapter of a case we’ve blogged about before, the U.S. Court of Appeals for the Fifth Circuit upheld a lower court decision
- [Social Media Account Holders Potentially Liable for GDPR Violations by Platform Operators](https://www.thetmca.com/social-media-account-holders-potentially-liable-for-gdpr-violations-by-platform-operators/) - Social media is an important marketing channel for many organisations. It is also a convenient way by which marketers can learn about customers, through data collected when they use social media channels. A recent case before the Court of Justice of the EU (“CJEU”) highlights the potential liability of account holders for the data collection
- [GDPR v. WHOIS: Why Can’t ICANN Just Tell Me Who Owns That Domain Name Anymore?](https://www.thetmca.com/gdpr-v-whois-why-cant-icann-just-tell-me-who-owns-that-domain-name-anymore/) - The organization tasked with managing the Internet’s domain names is struggling to come to terms with Europe’s new data privacy law. On June 18, 2018, the Internet Corporation for Assigned Names and Numbers (“ICANN”) published for discussion the draft Framework Elements for a Unified Access Model for Continued Access to Full WHOIS Data. The Framework
- [BREAKING NEWS: The Supreme Court Finally Will Resolve the Copyright Registration Circuit Split](https://www.thetmca.com/breaking-news-the-supreme-court-finally-will-resolve-the-copyright-registration-circuit-split/) - Under U.S. Copyright Law, copyright protection affixes to “original works of authorship fixed in any tangible medium of expression.” While copyright registration is not required to claim copyright rights, Section 411(a) of the Copyright Act requires registration prior to commencement of a federal copyright lawsuit. The registration requirement has not been interpreted consistently across the
- [The American Flag Napkins You'll be Using at Your BBQ on July 4th are Probably Illegal](https://www.thetmca.com/the-american-flag-napkins-youll-be-using-at-your-bbq-on-july-4th-are-probably-illegal/) - There is a little-known, even lesser-enforced, section of the United States Code that actually prohibits the printing of the American flag on paper napkins and other disposable products like paper plates, cups and boxes. The United States Flag Code, as it is known, also expressly states that “[t]he flag should never be used for advertising
- [NAD Enters the Spin Zone - Salad Spinner Superiority Claim Found Unsubstantiated](https://www.thetmca.com/nad-enters-the-spin-zone-salad-spinner-superiority-claim-found-unsubstantiated/) - A recent NAD decision about salad spinners illustrates several principles generally applicable to product testing used to substantiate superiority claims: (1) the test conditions need to be relevant to how the product performs in a typical consumer context; (2) the test results must be statistically significant; and (3) marketplace superiority claims must be supported by
- [#RippedOff: New Wave of Call-Out Culture in the Fashion Industry](https://www.thetmca.com/rippedoff-new-wave-of-call-out-culture-in-the-fashion-industry/) - A new means for fighting back against copycats in the fashion industry is on the rise: online call-outs. Brands can take their grievances directly to the public on social media to draw attention to design imitations (and in the process educate consumers about authenticity). Posts like these are gaining significant traction in the fashion world,
- [In Case You Missed It – Our Top 8 Posts of 2018 So Far](https://www.thetmca.com/in-case-you-missed-it-our-top-8-posts-of-2018-so-far/) - TheTMCA.com blog has had a busy first half of 2018 with a total of 62 posts so far this year. Thank you to our loyal readership, which keeps growing. In case you missed them, here are our top 8 posts of 2018 so far, with topics including the new GDPR privacy law, the Trump brand
- [California Leads the Nation with New Sweeping Privacy Law - The California Consumer Privacy Act of 2018](https://www.thetmca.com/california-leads-the-nation-with-new-sweeping-privacy-law-the-california-consumer-privacy-act-of-2018/) - On June 28, 2018, the California Legislature unanimously passed, and the Governor immediately signed, a sweeping expansion of data privacy protections for residents of California. Assembly Bill No. 375, entitled the “California Consumer Privacy Act of 2018” (the “CCPA”) goes far beyond current U.S. privacy protections, and in many respects emulates elements contained in the
- [The SCOTUS Nominee on IP](https://www.thetmca.com/the-scotus-nominee-on-ip/) - Earlier this month Brett Kavanaugh was nominated to be the next United States Supreme Court justice. If confirmed, he will replace the retiring Justice Anthony Kennedy. Politics aside, Kavanaugh has lodged a lengthy stint as judge on the U.S. Court of Appeals for the D.C. Circuit, and is no stranger to deciding tough trademark and
- [How Are We Doing, Internet?](https://www.thetmca.com/how-are-we-doing-internet/) - Hi, Readers! It’s theTMCA.com here, checking in to see how we’re doing. See, we try hard to make our posts on trademarks, copyrights, and advertising law entertaining and informative for you. We know that there are a million places for you to get your legal updates, and we work hard to make you glad you
- [Ministerial Statement Sheds Light on Fate of EU Trade Marks Post-Brexit](https://www.thetmca.com/ministerial-statement-sheds-light-on-fate-of-eu-trade-marks-post-brexit/) - Many IP owners wonder what they need to do to ensure the continued protection of their EU trade marks and Community Registered Designs after Brexit. Some attorneys, since the referendum, encouraged clients to file in the UK to secure those rights. This would have been an expensive strategy. This week, the UK government gave some
- [“No beer flow” – NHL sues seller of Stanley Cup-themed beer cups for trademark infringement](https://www.thetmca.com/no-beer-flow-nhl-sues-seller-of-stanley-cup-themed-beer-cups-for-trademark-infringement/) - Back in February, we covered the trademark dispute between the U.S. Army and the Las Vegas Golden Knights professional ice hockey team. As we predicted, the Army and the Golden Knights have now settled that matter by executing a co-existence agreement allowing both parties to continue using their respective marks. Although that dispute is now resolved,
- [Graffiti is Art, But Can Street Artists Sue to Protect It from Infringing Photographs?](https://www.thetmca.com/graffiti-is-art-but-can-street-artists-sue-to-protect-it-from-infringing-photographs/) - Is graffiti protectable under the Copyright Act? In principle, yes because it is a graphic art. But graffiti tends to appear on buildings that are visible from a public place, and photographs of such buildings are exempt from copyright infringement suits. So what happens if someone photographs a building that features graffiti, and the graffiti
- [Trademark Abandonment – Round Up Your Trademark Use Intentions](https://www.thetmca.com/trademark-abandonment-round-up-your-trademark-use-intentions/) - A trademark will be deemed abandoned under Section 1127 of the Lanham Act when the mark’s use has been discontinued “with intent not to resume such use.” Proof of non-use for three consecutive years will give rise to a presumption of abandonment, which can be rebutted by evidence of plans to resume use of the
- [9th Circuit Resurrects King Solomon’s Claim to “Empire”](https://www.thetmca.com/9th-circuit-resurrects-king-solomons-claim-to-empire/) - In three separate opinions, a panel of the Ninth Circuit revived a pro se plaintiff’s claim that defendants’ television series “Empire” infringed upon his copyrighted “treatment” for a television series entitled “King Solomon.” A treatment is a brief, written work that embodies the writer’s ideas for a show. The district court dismissed plaintiff’s complaint concluding
- [Sued for Misjudging the Impact of GDPR and Other Changes to the Consumer Data Privacy Landscape – Yes that Just Happened](https://www.thetmca.com/sued-for-misjudging-the-impact-of-gdpr-and-other-changes-to-the-consumer-data-privacy-landscape-yes-that-just-happened/) - In what could be a harbinger of things to come for business models negatively impacted by the throttling of data flow under the European Union’s General Data Protection Regulation (“GDPR”), Nielsen Holdings was named in a putative class action Complaint on August 22, 2018, for allegedly misrepresenting the anticipated effects of GDPR on Nielsen’s business model.
- [Second Circuit Goes Rogue – Reverses District Court on Priority of Common Law Rights in ROGUE Brand Apparel](https://www.thetmca.com/second-circuit-goes-rogue-reverses-district-court-on-priority-of-common-law-rights-in-rogue-brand-apparel/) - A recent Second Circuit decision in a case involving two companies using the ROGUE mark for apparel sets the record straight on what it means to have common law priority of rights in a mark for a category of goods in different trade channels. Excelled Sheepskin & Leather Coat Corp. v. Oregon Brewing Company (2d
- [UPDATE #1: Graffiti is Art, But Can Street Artists Sue to Protect It from Infringing Photographs?](https://www.thetmca.com/update-1-graffiti-is-art-but-can-street-artists-sue-to-protect-it-from-infringing-photographs/) - Last month we blogged about Falkner v. General Motors Co.—a federal court action filed earlier this year that may decide whether graffiti artists can enforce their copyrights in graffiti appearing on publicly-viewable buildings when photographed and distributed without their consent. As we detailed in our post, this issue raises novel and complex legal questions. On
- [The Copyright Circus Has Finally Left Town](https://www.thetmca.com/the-copyright-circus-has-finally-left-town/) - Last Friday, the 9th Circuit Court of Appeals finally put to bed a copyright dispute that many viewed as nothing short of bananas. Naruto v. Slater—dubbed the “Monkey Selfie” case—raised the novel (if not bizarre) question of whether a non-human primate has standing to sue for infringement under the U.S. Constitution and the Copyright Act.
- [Hard Times With WHOIS? INTA Wants To Know](https://www.thetmca.com/hard-times-with-whois-inta-wants-to-know/) - If you have encountered any issues accessing WHOIS information, the International Trademark Association (“INTA”) wants to hear from you. Due to changes in privacy law brought on by the European Union’s General Data Protection Regulation (“GDPR”), it is becoming more difficult or impossible to access once-commonly available public WHOIS information, which consists of registrant information
- [How Technology Made A Copyright Law Obsolete](https://www.thetmca.com/how-technology-made-a-copyright-law-obsolete/) - Did you know that there are likely billions of unprotected IP works in nearly every consumer electronic sitting on your desk or held in your hand? Today, it seems like every electronics device maker is announcing there are something like seven billion transistors on a single “chip” that measures just a few nanometers, just small
- [What Can We Make of the New Revised Draft of the Directive on Copyright in the Digital Market?](https://www.thetmca.com/what-can-we-make-of-the-new-revised-draft-of-the-directive-on-copyright-in-the-digital-market/) - On 12 September 2018, the EU Parliament adopted a revised draft of the directive on Copyright in the Digital Market. The proposed legislation includes some significant changes to the copyright regime and a couple of surprise additions introduced in the last minute by the EU Parliament. These issues will spark much debate in the months
- [Release of National Cyber Strategy](https://www.thetmca.com/release-of-national-cyber-strategy/) - Late last week, the Trump Administration released the National Cyber Strategy of the United States of America, purportedly the first such document released by the government in 15 years. According to the introduction by the President, the Cyber Strategy “is a call to action for all Americans and our great companies to take the necessary
- [#HonestAds : A Wrap Up from the 2018 NAD Conference](https://www.thetmca.com/honestads-a-wrap-up-from-the-2018-nad-conference/) - We are back from the 2018 National Advertising Division Annual Conference: The Truth About Advertising Law – Recent Developments and Best Practices that took place over two days in downtown New York. We heard from the NAD Director, NAD staff attorneys as well as staff of the Bureau of Consumer Protection at the FTC. If
- [Dueling Pianos – Copyright Rules for Digital Music Delivery Almost in Harmony](https://www.thetmca.com/dueling-pianos-copyright-rules-for-digital-music-delivery-almost-in-harmony/) - As we reported this spring, the “Music Modernization Act” (MMA) working through Congress avowed to bring the royalty determination formula for digital music services into the 21st Century. In April, the House of Representatives actually approved the MMA unanimously (415-0), likely one of the few, if only, things the House has agreed upon in some
- [Trademark Practice Tip: Make Extra Sure Your Cover Sheet Is Complete When Opposing a Madrid Protocol Application](https://www.thetmca.com/trademark-practice-tip-make-extra-sure-your-cover-sheet-is-complete-when-opposing-a-madrid-protocol-application/) - Late last year, in a decision that bears continued attention, the Trademark Trial and Appeal Board held that oppositions to Madrid Protocol applications filed under Section 66(a) are limited to the grounds set forth in the electronic filing ESTTA cover sheet. Serralles, Inc. v. Kabushiki Kaisha Donq. Moreover, an opposer is precluded from amending a
- [IP of Pot Part I: Introduction](https://www.thetmca.com/ip-of-pot-part-i-introduction-draft/) - A fog of uncertainty surrounds regulations in the marijuana industry. At the federal level, the plant is still a Schedule 1 substance under the Controlled Substances Act and, therefore, federally illegal to possess, sell, and distribute. However, this has not stopped states from implementing their own laws allowing their citizens to take advantage of the
- [Will California’s New Privacy Law be Preempted? Federal Hearings and Public Comments Begin](https://www.thetmca.com/will-californias-new-privacy-law-be-preempted-federal-hearings-and-public-comments-begin/) - Although numerous attempts have been made to pass a comprehensive U.S. privacy law over the years, this one might actually succeed. Efforts have begun on multiple fronts. From Senate Commerce Committee hearings to several federal agencies vying for which will lead a federal regulatory effort, privacy is a hot topic in Washington, DC. Businesses should
- [Stairway To Retrial:  9th Circuit Erases Jury Verdict in Favor of Led Zeppelin](https://www.thetmca.com/stairway-to-retrial-9th-circuit-erases-jury-verdict-in-favor-of-led-zeppelin/) - As it turns out, all that glitters is not gold. Or at least that’s probably how Led Zeppelin feels after the 9th Circuit overturned a shiny jury verdict in favor of the iconic British rock band. The dispute involves a copyright infringement claim that Led Zeppelin and its hirsute founders did not originate the opening guitar
- [FEYONCÉ: Poking the Beyhive](https://www.thetmca.com/feyonce-poking-the-beyhive/) - You probably have a friend who’s justifiably obsessed with all things Beyoncé (this author might be that friend). You might also have a friend who’s engaged (a fiancé). When the two intersect, you’ve got a FEYONCÉ. Get it? Check Instagram -- it’s a thing. But did you know all that swag doesn’t come from Queen
- [UPDATE #2: Graffiti is Art, But Can Street Artists Sue to Protect It from Infringing Photographs?](https://www.thetmca.com/update-2-graffiti-is-art-but-can-street-artists-sue-to-protect-it-from-infringing-photographs/) - On September 17, 2018, Judge Steven V. Wilson of the federal court of the Central District of California ruled on General Motors’ motion for summary judgment in Falkner v. GM, a copyright action concerning graffiti artists’ ability to protect their work from infringement by photographers. In short, although the court’s decision makes it unlikely that we’ll
- [U.S. Takes Marrakesh Express to Treaty Facilitating Access to Publications by the Blind and Visually Impaired](https://www.thetmca.com/u-s-takes-marrakesh-express-to-treaty-facilitating-access-to-publications-by-the-blind-and-visually-impaired/) - On October 10, 2018, President Trump signed the Marrakesh Treaty Implementation Act (“MTIA”), which will allow the United States to join the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The net result of the United States joining the Treaty should be the availability
- [Update – Trump Place Sign to Be Removed from NYC Building After Successful DJ Lawsuit](https://www.thetmca.com/update-trump-place-sign-to-be-removed-from-nyc-building-after-successful-dj-lawsuit/) - We previously blogged about the licensing dispute between the building management of 200 Riverside Boulevard in New York City and DJT Holdings over whether management had the right to remove the Trump Place branding on the building. The building management succeeded in obtaining a declaratory judgment that removal of the Trump Place signage did not
- [Only in Canada, eh? Canada's Broad Interpretation of Trademark "Use" Gives U.S. Retailers A Big Leg Up](https://www.thetmca.com/only-in-canada-eh-canadas-broad-interpretation-of-trademark-use-gives-u-s-retailers-a-big-leg-up/) - Two recent decisions of the Federal Court of Canada pave the way for U.S. and other non-Canadian businesses to secure and maintain trademark rights for their retail or hotel operations even where they do not have a bricks and mortar presence in Canada. In the first decision, Dollar General Corporation v. 2900319 Canada Inc., 2018
- [Jay-Z Got 99 Problems but the Statute of Frauds Ain’t One](https://www.thetmca.com/jay-z-got-99-problems-but-the-statute-of-frauds-aint-one/) - After a six year legal battle, superstar rapper Shawn Carter (“Jay-Z”) and his former partners Damon “Dame” Dash and Kareem “Biggs” Burke successfully defended their use of Roc-A-Fella Records’ iconic logo. Walker v. Carter, et al. highlights the importance of keeping reliable written records, and paying attention to the statute of limitations in actions brought under the Copyright
- [Great Scott! The DeLorean Estate Lawsuit Hits a Space Time Continuum Roadblock](https://www.thetmca.com/great-scott-the-delorean-estate-lawsuit-hits-a-space-time-continuum-roadblock/) - The recent decision of DeLorean v. DeLorean Motor Co. is no doubt significant to the parties as well as attorneys and courts who will cite it in future briefs and decisions. However, it is also important because it demonstrates that the intellectual property rights associated with an iconic product might be much more valuable and long-lived
- [Instead of Violating Someone’s Trademark, These Folks Go Straight to the Source to Try to Swipe Control of the Trademark Itself](https://www.thetmca.com/instead-of-violating-someones-trademark-these-folks-go-straight-to-the-source-to-try-to-swipe-control-of-the-trademark-itself/) - The USPTO issued an unusual advisory bulletin last week, warning the public of a rash of “unauthorized changes” to active trademark applications and registrations. The bulletin, which can be found here, reveals that the PTO believes these may be part of a potential “scheme to register the marks of others on third-party ‘brand registries.’” What
- [Bot or not? The Rise of CGI Influencers](https://www.thetmca.com/bot-or-not-the-rise-of-cgi-influencers/) - In the not too distant past, consumer product brands hired celebrity figures to act as their official ambassadors. These celebrities appeared in traditional media such as TV commercials and celebrity interviews in print publications, as well as online. Jamie Lee Curtis spooning up Dannon Activia yogurt comes to mind. But with the exponential growth of
- [Federal Circuit Kicks Chuck Taylor Case Back to ITC](https://www.thetmca.com/federal-circuit-kicks-chuck-taylor-case-back-to-itc/) - In the latest chapter of a long-running trademark dispute involving the outsole used by Converse, Inc. with its well-known CHUCK TAYLOR shoes, the U.S. Court of Appeals for the Federal Circuit has issued a ruling vacating an International Trade Commission decision that went against Converse and booting the dispute back to the ITC on remand. In 2014, Converse
- [Registration of Color Trademarks on Product Packaging: The TTAB Lays Down Some Black and White Rules](https://www.thetmca.com/registration-of-color-trademarks-on-product-packaging-the-ttab-lays-down-some-black-and-white-rules/) - Obtaining trademark registration for color trademarks can be a complicated undertaking. In a recent precedential opinion, the Trademark Trial and Appeal Board in In re Forney Industries, Inc. weighed in on the registrability of a color mark when used on product packaging, holding that: (1) color marks can never be inherently distinctive when used either on
- [Copyright in the Taste of Cheese?](https://www.thetmca.com/copyright-in-the-taste-of-cheese/) - For our U.S. readers with Thanksgiving and food still on their minds, the TMCA thought it would be timely to comment on recent news from Europe about cheese. The Court of Justice of the European Union (“ECJ”) held that there was no copyright in the taste of cheese, and the first question that popped into
- [Fifth Circuit Denies Defendants’ “Halftime” Attempt to Shift Fees Under the DTSA](https://www.thetmca.com/fifth-circuit-denies-defendants-halftime-attempt-to-shift-fees-under-the-dtsa/) - Earlier this month, the Fifth Circuit ruled that under the Defend Trade Secrets Act (18 U.S.C. § 1836, et seq.) (“DTSA”), a defendant is not the “prevailing party” by virtue of a plaintiff voluntarily dismissing a DTSA claim, where the dismissal is without prejudice. The DTSA provides for fee shifting in favor of a “prevailing
- [Practice Update: Amendments to Canada Trademark Law to Take Effect June 17, 2019](https://www.thetmca.com/practice-update-amendments-to-canada-trademark-law-to-take-effect-june-17-2019/) - The long awaited date for implementation of Canada’s amended Trademarks Act has been announced. The amendments will come into force on June 17, 2019, creating significant changes for trademark practice in Canada. The amendments to the Trademarks Act, announced in 2014, were made to allow Canada to join five international IP treaties, including the Madrid
- [The PRC E-Commerce Law on IP protection](https://www.thetmca.com/the-prc-e-commerce-law-on-ip-protection/) - On August 31, 2018, the Standing Committee of the National People’s Congress of the People’s Republic of China promulgated the E-Commerce Law of the People‘s Republic of China (“Law”) which will come into effect on January 1, 2019. As Chinese e-commerce platforms such as Alibaba, Taobao, JD.com, and others are now among the world’s largest
- [Updated Draft of California’s Cannabis Regulations Could Stifle IP Licensing](https://www.thetmca.com/updated-draft-of-californias-cannabis-regulations-could-stifle-ip-licensing/) - As the U.S. cannabis market continues to grow at an extraordinary pace, a number of celebrities and companies have extended their names or brands to cannabis products via partnerships with licensed growers and dispensaries. On the celebrity side, these partnerships include Willie’s Reserve (Willie Nelson), Bob Marley (Marley Natural), Whoopi Goldberg (Whoopi & Maya) and
- [Restaurant Wars: Breach of Fiduciary Duties at the Palm Restaurant Empire](https://www.thetmca.com/restaurant-wars-breach-of-fiduciary-duties-at-the-palm-restaurant-empire/) - One of the philosophies of the world-famous Palm restaurant is to treat guests like family. That philosophy may need to be re-examined in light of a recent decision by the New York Supreme Court in Ganzi v. Ganzi, a case involving the families behind the renowned restaurant empire (for those of you not from the
- [Influencer Advertising: The SEC, Not Just The FTC, Could Be Watching](https://www.thetmca.com/influencer-advertising-the-sec-not-just-the-ftc-could-be-watching/) - Avid readers or this blog know that the FTC spends as much time on Instagram and other social platforms as your favorite millennial, but who knew that the SEC also spends it’s working hours perusing posts on popular social media sites looking at influencer advertising? Now, you do. Late last month, the Securities and Exchange
- [American Airlines Flying High After Copyright Office Reversal](https://www.thetmca.com/american-airlines-flying-high-after-copyright-office-reversal/) - American Airlines recently scored a major win by convincing the Copyright Office to reverse its refusal of an application to register the “American Airlines Flight Symbol.” American Airlines reached its final destination after overcoming myriad delays. The Copyright Office rejected American Airlines’ copyright application three times on the ground it did not contain a sufficient
- [The Second Circuit Shuts Down Application of First Sale Doctrine](https://www.thetmca.com/the-second-circuit-shuts-down-application-of-first-sale-doctrine/) - In a decision issued on December 12, 2018, the Second Circuit refused to recognize application of the first sale doctrine to a service that had been established as a marketplace for resale of digital music files. Under the first sale doctrine (set forth in Section 109(a) of the Copyright Act), owners of legally-obtained copies of
- [The Public Domain Opens Again in the United States for the First Time Since 1998](https://www.thetmca.com/the-public-domain-opens-again-in-the-united-states-for-the-first-time-since-1998/) - As we previously reported on our blog, the doors to the public domain will open in the United States for the first time since 1998. On January 1, 2019, any works published in the United States in 1923 or prior are freed from the shackles of copyright protection and can be copied, remixed, distributed, etc.
- [Trump’s a Wedding Crasher and News Outlets Can’t Poach Photos Off Instagram](https://www.thetmca.com/trumps-a-wedding-crasher-and-news-outlets-cant-poach-photos-off-instagram/) - A lesser-known feature of selecting a TRUMP-branded property as a wedding venue is that the President himself may decide to crash your wedding. It also may end up leading to a substantial copyright law development, specifically regarding the fair use doctrine and photographs posted to social media. Trump’s crash at the Trump National Golf Club
- [Fine Print May Not Be Enough to Avoid False Advertising Liability](https://www.thetmca.com/fine-print-may-not-be-enough-to-avoid-false-advertising-liability/) - If you were shopping for snack crackers and saw Cheez-It packages that looked like the ones shown here, how much whole grain content would you think the crackers contain – a little, a lot, all of it? The Second Circuit recently considered this question in Mantikas v. Kellogg Company, holding
- [The “F Word” Taking Center Stage at the U.S. Supreme Court](https://www.thetmca.com/the-f-word-taking-center-stage-at-the-u-s-supreme-court/) - On Friday, while some of us may have been muttering a few bad words as we slogged through our post-holiday inboxes, the Supreme Court was toying with a naughty word of its own: FUCT. That’s right. Late last week the Court agreed to hear a case involving a rejected trademark application for the word “FUCT”
- [All Publicity May Not Be Good Publicity: Risky Timing of IP Filings Based on Sports Success](https://www.thetmca.com/all-publicity-may-not-be-good-publicity-risky-timing-of-ip-filings-based-on-sports-success/) - The NFL playoffs are underway and teams and their fans are riding high: eight teams still have a chance of making the Super Bowl. Now could be the perfect time to protect the team slogan or motto that fans will love for years to come. But seven out of the eight teams will not win
- [TiVo Proves More than 15 Minutes of Fame to Succeed on Trademark Dilution Claim](https://www.thetmca.com/tivo-proves-more-than-15-minutes-of-fame-to-succeed-on-trademark-dilution-claim/) - Andy Warhol once famously commented that “In the future everybody will be world famous for fifteen minutes." For trademarks, fifteen minutes of fame is not sufficient to assert a trademark dilution claim. The timing of when a mark first became famous and how long that fame must endure was the subject of a recent decision
- [Rapunzel, Rapunzel Let Down Your Hair for Consumer Oppositions](https://www.thetmca.com/rapunzel-rapunzel-let-down-your-hair-for-consumer-oppositions/) - In the magical land of the U.S. Patent and Trademark Office, a new chapter has been added to the trademark fairytale: consumers may have a real interest in preventing the exclusive appropriation of merely descriptive or generic terms by trademark owners. The Trademark Trial and Appeal Board recently ruled that Suffolk University Law Professor Rebecca
- [Big Mac? What’s That?](https://www.thetmca.com/big-mac-whats-that/) - When the European Union Intellectual Property Office (EUIPO) last week revoked the EU trade mark registration for the mark ‘BIG MAC’, following a challenge brought by an Irish fast-food chain, SUPERMAC’S, it was hailed by the media as a triumph for a small business in its dispute with a much stronger rival, the well-known McDonald’s burger
- [Google Fine Signals GDPR Enforcement Priorities and Complexities](https://www.thetmca.com/google-fine-signals-gdpr-enforcement-priorities-and-complexities/) - The French Data Protection Authority, CNIL, has fined Google $50 Million Euros for Google’s alleged failure to comply with the EU’s sweeping General Data Protection Regulation (GDPR). The enforcement action is significant for a number of reasons: Jurisdictionally, CNIL ignored Google’s attempt to be regulated by Ireland’s Data Protection Authority, generally assumed to be somewhat
- [Twombly at the TTAB – Abandonment Allegations Found Sufficient](https://www.thetmca.com/twombly-at-the-ttab-abandonment-allegations-found-sufficient/) - The U.S. Supreme Court’s blockbuster rulings in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal represented a major shift in federal pleading standards. Resolution of motions to dismiss frequently turns on whether a complaint meets Twombly’s so-called “plausibility” standard. In the context of a motion to dismiss a petition for cancellation of a trademark
- [Sued for Reposting a Photo of Herself on Instagram -That Just Happened to Gigi Hadid](https://www.thetmca.com/sued-for-reposting-a-photo-of-herself-on-instagram-that-just-happened-to-gigi-hadid/) - Earlier this week, a company called Xclusive-Lee, Inc. filed a complaint in federal court against the fashion model Gigi Hadid (real name Jelena Noura Hadid) alleging willful copyright infringement when Gigi reposted a photo of herself on her own Instagram account. According to the complaint, Xclusive is the copyright owner of the photo and claims
- [#COVFEFE – It’s a Thing, But Not a Trademark](https://www.thetmca.com/covfefe-its-a-thing-but-not-a-trademark/) - On May 31, 2017, President Trump tweeted a half-formed message with a mystifying final word: “Despite the constant negative press covfefe”. The Twitterverse and other social media platforms went wild with re-tweets, memes and assorted guesses about what “covfefe” meant or what actual word or message was intended. Jumping on the trending hashtag, an enterprising
- [USPTO Announces Expedited Cancellation Pilot Program](https://www.thetmca.com/uspto-announces-expedited-cancellation-pilot-program/) - Back in July 2017, the United States Patent and Trademark Office proposed a Streamlined Cancellation Proceeding (“SCP”) to expedite cancellation proceedings for challenges to registrations of allegedly unused marks. Following public comments, the PTO shelved the SCP. Instead of the SCP, the Trademark Trial and Appeal Board will study the effectiveness of a future SCP
- [Sued for Posting a Meme - That Just Happened](https://www.thetmca.com/sued-for-posting-a-meme-that-just-happened/) - Last week, we blogged about Gigi Hadid getting sued for reposing a photo of herself on Instagram and the post received a lot of interest. So we thought we’d also let you know about Fiji Water Company, LLC getting sued for posting a meme on its social media feeds featuring the “Fiji Water Girl.” You
- [Comparative Advertising Pitfalls – Consumers Shouldn't Have To Do The Math](https://www.thetmca.com/comparative-advertising-pitfalls-consumers-shouldnt-have-to-do-the-math/) - Comparative advertising can be an effective marketing tool to tout product benefits vs. competitors, but consumers shouldn’t need to read confusing fine print disclaimers and whip out their calculators to understand the ad claims. This was the lesson of a recent decision involving competitive drinkable yogurt for kids, described by the court as “the latest
- [Fiji Water Splashes Back After Getting Sued For Posting a Meme](https://www.thetmca.com/fiji-water-splashes-back-after-getting-sued-for-posting-a-meme/) - Last week, we blogged about Fiji Water being sued for posting a meme of the Fiji Water Girl and using cardboard cutouts of her image in advertising. Well, Fiji Water is splashing back – They filed a cross-complaint alleging breach of contract, promissory estoppel and false promise. The facts alleged in the cross-complaint fill in
- [Fully Booked: The Fourth Circuit Confirms Booking.com is Protectable But Company Must Pay the USPTO’s Fees on Appeal](https://www.thetmca.com/fully-booked-the-fourth-circuit-confirms-booking-com-is-protectable-but-company-must-pay-the-usptos-fees-on-appeal/) - Dorsey’s TMCA team has thoroughly covered the history of the dispute between the USPTO and Booking.com B.V., which started when the Trademark Trial and Appeals Board rejected the BOOKING.COM trademark as generic (covered here), and continued when the federal district court for the Eastern District of Virginia overturned the TTAB’s genericness determination, and found instead
- [PTO Proposes Requiring Foreign Trademark Owners to Obtain U.S. Counsel](https://www.thetmca.com/pto-proposes-requiring-foreign-trademark-owners-to-obtain-u-s-counsel/) - On the heels of launching its expedited cancellation program to clear deadwood from the Trademark Register, the U.S. Patent and Trademark Office has now pivoted to a related area: deadwood prevention. The PTO has issued a Notice of Proposed Rulemaking that, with one exception, would require foreign-domiciled trademark applicants, registrants and parties to a Trademark Trial and
- [Epic Games Battles for Victory Dances in Fortnite Copyright Lawsuits](https://www.thetmca.com/epic-games-battles-for-victory-dances-in-fortnite-copyright-lawsuits/) - If you know how to Floss and Milly Rock, then you are way more hip than most, including the author of this post. Both are popular dance moves, along with the Shoot, Running Man, and the Carlton, the latter made famous by Alfonso Ribeiro as Carlton in The Fresh Prince of Bel-Air. All of these
- [BREAKING NEWS: The Supreme Court Rules that You Need a Copyright Registration to Sue for Copyright Infringement in Federal Court](https://www.thetmca.com/breaking-news-the-supreme-court-rules-that-you-need-a-copyright-registration-to-sue-for-copyright-infringement-in-federal-court/) - This morning, the Supreme Court resolved a longstanding circuit split about whether a copyright infringement plaintiff must first obtain a registration from the Copyright Office for the work upon which its claim is based before initiating an infringement lawsuit, or whether it need only file an application for registration of that work before filing suit.
- [Wait, There’s More Breaking News: SCOTUS Clarifies What Costs Are Recoverable in Copyright Infringement Cases](https://www.thetmca.com/wait-theres-more-breaking-news-scotus-clarifies-what-costs-are-recoverable-in-copyright-infringement-cases/) - The Supreme Court was busy yesterday issuing opinions involving copyright law (see the TMCA’s post yesterday on Fourth Estate vs. Wallstreet.com concerning the need to obtain a copyright registration before initiating an infringement suit). In a second important decision, Rimini Street, Inc. v. Oracle, Inc., the Court resolved a circuit split over the definition of “full costs”
- [Jurisdiction based on a single bit of bitcoin: A single (probably) U.S.-based sale was enough to achieve relief with worldwide effect](https://www.thetmca.com/jurisdiction-based-on-a-single-bit-of-bitcoin-a-single-probably-u-s-based-sale-was-enough-to-achieve-relief-with-worldwide-effect/) - The dispute over the bitcoin named Alibabacoin is apparently over. Last year, Chinese tech giant Alibaba sued Belarus- and Dubai-based ABBC Block Chain IT Solutions LLC in New York federal court for trademark infringement based on ABBC’s Alibabacoin bitcoin. Several sources have reported that the parties announced a settlement, and the parties filed a stipulation
- [What can hair metal and grunge bands teach us about IP ownership?](https://www.thetmca.com/what-can-hair-metal-and-grunge-bands-teach-us-about-ip-ownership/) - It has been an interesting several weeks in the trademark world that have transported me back to my halcyon days of high school metal and college grunge (but mostly I was a new wave guy). The years-long litigation going “round and round” among the members of RATT over trademark rights to use the band’s name
- [Second Circuit Affirms Louis Vuitton Not Liable for Attorneys’ Fees in Parody Handbag Case](https://www.thetmca.com/second-circuit-affirms-louis-vuitton-not-liable-for-attorneys-fees-in-parody-handbag-case/) - It’s been an annual tradition here at The TMCA to write about a trademark and copyright dispute between Louis Vuitton Malletier, S.A. and My Other Bag, Inc. (“MOB”) over a line of canvas tote bags that parodied Louis Vuitton’s iconic designer handbags. We wrote about the case in January 2016 and January 2017, and then
- [How to Expedite Your U.S. Trademark Application with a Petition to Make Special](https://www.thetmca.com/how-to-expedite-your-u-s-trademark-application-with-a-petition-to-make-special/) - Are you a trademark owner with an infringer to sue but you do not have U.S. registration? Do you need a U.S. registration to record with U.S. Customs to have counterfeit shipments seized? If so, you may be able to go to the head of the application line. While the U.S. Patent and Trademark Office
- [Quirky Questions: Do All TTAB Deadlines Extend Through Weekends/Holidays? Practitioners Beware!](https://www.thetmca.com/quirky-questions-do-all-ttab-deadlines-extend-through-weekends-holidays-practitioners-beware/) - Many practitioners take for granted the fact that any TTAB deadlines that fall on a Saturday, Sunday or Federal holiday are automatically extended to the following business day. As it turns out, this isn’t always the case. A recent decision on a Petition to the Director in Asustek Computer Incorporation v. Chengdu Westhouse Interactive Entertainment
- [European Licensee Lacked Sufficient Rights to Enforce Trademark Claim Against Kardashian Sisters](https://www.thetmca.com/european-licensee-lacked-sufficient-rights-to-enforce-trademark-claim-against-kardashian-sisters/) - Can a licensee sue for trademark infringement under Section 43(a) of the Lanham Act? On April 1, 2019, the Eleventh Circuit issued its decision in Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc. et al., and held that the answer to this question depends on the language of the licensing agreement. In Kroma
- [The Take-Two Interactive v. Pinkerton Showdown Has Ended in a Draw](https://www.thetmca.com/the-take-two-interactive-v-pinkerton-showdown-has-ended-in-a-draw/) - One year ago, I wrote a post about the Lohan v. Take-Two Interactive case in which Lindsay Lohan thought she recognized her image in Take-Two’s Grand Theft Auto V (“GTAV”) video game. Many people who notice that they resemble a character in a game populated by drug dealers, gangsters, and prostitutes would tell no one
- [Ad Agency Liability:  FTC Continues To Focus on Agency Role in Ad Campaigns](https://www.thetmca.com/ad-agency-liability-ftc-continues-to-focus-on-agency-role-in-ad-campaigns/) - Recent articles in Forbes and National Law Review highlight that the Federal Trade Commission continues to have advertising agencies in its sights when it comes to the role that agencies play in creating deceptive ads. While the FTC’s enforcement activity against businesses whose products or services are being advertised is frequent and well known, many
- [Potentially Expanded Private Right of Action Increases Risk of Class Action Exposure Under the California Consumer Privacy Act](https://www.thetmca.com/potentially-expanded-private-right-of-action-increases-risk-of-class-action-exposure-under-the-california-consumer-privacy-act/) - With the January 1, 2020 implementation date of the California Consumer Privacy Act (“CCPA” or “Act”) fast approaching, businesses should start thinking not only about the steps toward compliance, but also the risks associated with non-compliance. Particularly in light of the introduction of SB 561, which, if passed, would expand the private right of action
- [Some CBD Trademarks Are Now Federally Registrable Based on New Guidance from the USPTO](https://www.thetmca.com/some-cbd-trademarks-are-now-federally-registrable-based-on-new-guidance-from-the-uspto/) - The United States Patent and Trademark Office will now allow federal trademark registration for marks used on some hemp-based products, including those containing hemp-derived CBD, except for foods, beverages, dietary supplements, or pet treats. On May 2, 2019, the USPTO issued Examination Guide 1-19 for the examination of federal trademark applications covering cannabis and cannabis-derived
- [SB 561 Held in Committee- Private Right of Action Under the CCPA Confined (for Now)](https://www.thetmca.com/sb-561-held-in-committee-private-right-of-action-under-the-ccpa-confined-for-now/) - On Thursday, March 16, 2019, the California Senate Appropriations Committee held in Committee SB 561, which would have greatly expanded the private right of action (i.e., the ability to bring private class actions) available under the California Consumer Privacy Act (“CCPA”). SB 561 was introduced in February by California Attorney General (“AG”) Xavier Becerra and
- [INTA Boston:  Highlights from Bean Town](https://www.thetmca.com/inta-boston-highlights-from-bean-town/) - If you missed the 2019 Annual Meeting of the International Trademark Association in Boston, or if you were there but were spending time with colleagues and friends, the Dorsey trademark team is here to provide a brief overview of some interesting seminars we attended and tidbits scooped up during the Meeting: Fictional Characters: Dorsey’s very
- [Ahoy, matey! The Supreme Court to Decide Whether Copyright Owners Can Make States Walk the Plank for Infringement](https://www.thetmca.com/ahoy-matey-the-supreme-court-to-decide-whether-copyright-owners-can-make-states-walk-the-plank-for-infringement/) - On June 3, 2019, the Supreme Court agreed to decide whether Congress validly abrogated State sovereign immunity for copyright infringement claims by passing the Copyright Remedy Clarification Act of 1990 (“CRCA”), 17 U.S.C. § 511. The facts of the case before the Court began in 1717 in the Caribbean Sea. There, infamous pirate Edward Teach
- [Nevada’s New Privacy Law – Beating California in the Backstretch](https://www.thetmca.com/nevadas-new-privacy-law-beating-california-in-the-backstretch/) - Just as companies are reaching the straightway in their efforts to get ready to comply with the California Consumer Privacy Act ("CCPA") by January 1, Nevada has burst ahead with a privacy law that will take effect before the CCPA. On May 29, 2019, Nevada Governor Steve Sisolak signed SB 220 into law, amending Nevada’s
- [Seventh Circuit Upholds Trade Dress Protection for “Iconically Designed” Bodum Chambord French Press Coffeemaker](https://www.thetmca.com/seventh-circuit-upholds-trade-dress-protection-for-iconically-designed-bodum-chambord-french-press-coffeemaker/) - Bodum USA, Inc. manufacturers the Chambord French press, a nonelectric coffeemaker (Full disclosure: the author once owned a Bodum French press. It produced objectively delicious coffee). A French press is a cylindrical carafe and a plunger with a filter screen attached to one end. The user pours coffee grounds and boiling water into the carafe.
- [Real News Update:  White House Issues Memo Aimed at Online Fakes](https://www.thetmca.com/real-news-update-white-house-issues-memo-aimed-at-online-fakes/) - Counterfeiting is a large problem for consumer product companies. However, U.S. counterfeiting laws are difficult to enforce against many companies because they operate outside the United States, or the manufacturer of the products is unknown. Historically, many U.S. companies have not had effective enforcement mechanisms against counterfeiters. This is of particular relevance in light of
- [Time to Face the .MUSIC](https://www.thetmca.com/time-to-face-the-music/) - And the new top level domain names just keep on coming. As our readers may know, ICANN, the organization that operates the internet domain name system, authorized the launch of the New gTLD Program – the largest expansion of the generic top-level domain name (“gTLD”) system on the Internet in history. Prior to the launch
- [SCOTUS Paves the Way for FUCT Trademark, Causing a Bit of an Application Sh**storm at the USPTO](https://www.thetmca.com/scotus-paves-the-way-for-fuct-trademark-causing-a-bit-of-an-application-shstorm-at-the-uspto/) - “FUCT.” You can pronounce it as four letters, one after the other. Or you can pronounce it like Justice Kagan as the “past participle form of a well-known word of profanity.” Either way, the word can be registered as a trademark under yet another civil rights victory at the Supreme Court: Iancu v. Brunetti. Erik
- [Give Me Aphukenbrake* – USPTO Issues Examination Guide on Treatment of Scandalous Marks Following Supreme Court Case](https://www.thetmca.com/give-me-aphukenbrake-uspto-issues-examination-guide-on-treatment-of-scandalous-marks-following-supreme-court-case/) - We recently posted about the U.S. Supreme Court’s June 24th holding in Iancu v. Brunetti, which upheld a ruling that the Lanham Act’s bar on the registration of scandalous or immoral marks is unconstitutional because it violates the right to free speech. On July 3rd, the USPTO issued written guidance via Examination Guide 2-19 outlining
- [Kim K’s “Kimono” – A Snapshot of Cultural Appropriation](https://www.thetmca.com/kim-ks-kimono-a-snapshot-of-cultural-appropriation/) - After receiving a wave of backlash against the decision to name her new shapewear line “Kimono” – as in the name for the traditional Japanese garment – Kim Kardashian has recently relented from adopting the term as a part of her brand. In 2018, she had tried to register the trademark KIMONO, but that application
- [Absolute Lowest Possible Statutory Damages Award Ordered for Infringing a Viral and Potentially Lucrative Photo of Trump](https://www.thetmca.com/absolute-lowest-possible-statutory-damages-award-ordered-for-infringing-a-viral-and-potentially-lucrative-photo-of-trump/) - You may have heard: infringing a viral photo of the current President of the United States will only cost you $750. Setting aside whether that valuation was at all related to the subject matter of the photo, let’s talk about how we got there. A Brief Recap of Otto v. Hearst In June of 2017,
- [Katy Perry’s Dark Horse Gets Trammeled—Is It Time For a New Breed of Music Copyright Protection?](https://www.thetmca.com/katy-perrys-dark-horse-gets-trammeled-is-it-time-for-a-new-breed-of-music-copyright-protection/) - This week, a California jury found that Katy Perry, Capitol Records and a few other players were liable for copyright infringement to the tune of approximately $2,800,000. The offending song is Katy Perry’s runaway smash hit “Dark Horse.” The Plaintiff’s work is a 2008 Christian rap entitled “Joyful Noise” by Flame. A thoughtful comparison and
- [New York Expands Data Privacy Protections](https://www.thetmca.com/new-york-expands-data-privacy-protections/) - New York continued its active legislative session last week, this time by expanding its data breach notification law. The SHIELD Act (Stop Hacks and Improve Electronic Data Security), signed by Governor Andrew Cuomo on July 25, 2019, notably expands the definition of a data breach and the scope of what constitutes personal information. But the
- [Equitable Estoppel Defense Denies Lego Full Victory in Copyright Case](https://www.thetmca.com/equitable-estoppel-defense-denies-lego-full-victory-in-copyright-case/) - The world-renowned Danish toy maker Lego has scored an important (albeit partial) win in its nearly 8-year-old copyright litigation against fellow toy maker Best-Lock Construction Toys. On July 25, 2019, Judge Haight of the U.S. District Court for the District of Connecticut issued an opinion on the parties’ competing motions for summary judgment in Lego
- [Defending Lack of Reasonable Opportunity of Access in Copyright Infringement Claims – Inference is Insufficient](https://www.thetmca.com/defending-lack-of-reasonable-opportunity-of-access-in-copyright-infringement-claims-inference-is-insufficient/) - The decision and damages awarded to Marcus Gray, Emanuel Lambert, and Chike Ojukwu in the Katy Perry “Dark Horse” copyright infringement case last week have the attention of the music industry. We provided some commentary here on the potential impact of the decision on what has been the historical development of the musical art form,
- [Gatorade: The Sport Fuel Company for "Average Joes"](https://www.thetmca.com/gatorade-the-sport-fuel-company-for-average-joes/) - In 2016, SportFuel sued PepsiCo for using their registered trademark “SPORTFUEL” in a slogan used to advertise Gatorade products. SportFuel is a personalized nutrition consulting firm in Chicago. They also market sports drinks and supplements, like their “energizing phytonutrient powder mix” which contains the antioxidant effect of “25+ Servings of Fruits & Vegetables” in a
- [Third Circuit Analyzes Work for Hire and Assignment Requirements and Explains Why the Distinction Matters](https://www.thetmca.com/third-circuit-analyzes-work-for-hire-and-assignment-requirements-and-explains-why-the-distinction-matters/) - When a judicial opinion refers to a “bitter feud”, a plaintiff “beset by acrimony”, and a “rock star” banker who “faced his peripeteia” (we looked it up for you –it’s Greek for “reversal of fortune”), you know there’s gotta be a good story behind a copyright dispute. That is indeed the case in TD Bank
- [Andy Warhol’s Prince Series Portraits Held Fair Use of Photograph](https://www.thetmca.com/andy-warhols-prince-series-portraits-held-fair-use-of-photograph/) - Earlier this summer, in The Andy Warhol Foundation for the Visual Arts v. Goldsmith, the federal district court for the Southern District of New York held that Andy Warhol’s artwork series depicting the late singer Prince was protectable fair use of a photograph taken by Lynn Goldsmith. Goldsmith photographed Prince in her studio in late
- [Series 89: A Secret Menu of Protected Non-Registered Marks](https://www.thetmca.com/series-89-a-secret-menu-of-protected-non-registered-marks/) - Who doesn’t love a secret menu, where one discovers delicious off-menu favorites and savors them along with the pleasure of feeling in the know? We’ll let you in on a “secret menu” of sorts for trademarks. A little known area of trademark law involves protection of trademarks by statute or convention. These marks are in
- [Déjà vu as EU court revisits online platform liability for infringing content uploaded by users](https://www.thetmca.com/deja-vu-as-eu-court-revisits-online-platform-liability-for-infringing-content-uploaded-by-users/) - The European Union’s highest court will have another opportunity to consider the issue of the liability of online platforms for copyright infringing content uploaded and shared by users. Two referrals from national courts (one Austrian and one German) are pending before the Court of Justice, both concerning infringing videos posted on YouTube and both raising
- [Context is King for the King of Beers: The “No Corn Syrup” Injunction Gets Sticky](https://www.thetmca.com/context-is-king-for-the-king-of-beers-the-no-corn-syrup-injunction-gets-sticky/) - Anyone who saw the Special Delivery commercial during the Super Bowl is familiar with Bud Light’s “No Corn Syrup” campaign. The Special Delivery commercial made it pretty clear that Miller Light and Coors Light are brewed with corn syrup whereas Bud Light is brewed with rice. As the campaign evolved to include dozens of commercials,
- [Breathing Room? California Legislature Passes Two Major Amendments to California Consumer Privacy Act (CCPA)](https://www.thetmca.com/breathing-room-california-legislature-passes-two-major-amendments-to-california-consumer-privacy-act-ccpa/) - Businesses may receive a bit of breathing room as a result of two amendments to the California Consumer Privacy Act (CCPA) passed on Friday, September 13, 2019, by the California Legislature. The Legislature gave businesses a one-year moratorium on two significant aspects of the law: its application to employees, job applicants, owners, officers, directors, medical
- [Google Wins At The Top EU Court: Privacy Can Be a Question of Geography](https://www.thetmca.com/google-wins-at-the-top-eu-court-privacy-can-be-a-question-of-geography/) - Earlier this week, the Court of Justice of the European Union, perhaps for the first time, drew a territorial limitation to the requirements imposed under the General Data Protection Regulation (‘GDPR’). The court held that an individual’s exercise of their “right to be forgotten” in relation to certain materials available online, which obliges Google’s search
- [No Laughing Matter: Court Dismisses Copyright Claims Against Jerry Seinfeld’s Comedians in Cars Getting Coffee Show](https://www.thetmca.com/no-laughing-matter-court-dismisses-copyright-claims-against-jerry-seinfelds-comedians-in-cars-getting-coffee-show/) - Judge Alison Nathan of the Southern District federal court in New York recently dismissed copyright infringement claims against comedian Jerry Seinfeld over the show Comedians in Cars Getting Coffee because the statute of limitations had lapsed. Plaintiff Christian Charles was a collaborator with Seinfeld on several projects, including several popular American Express commercials and the
- [Effective November 1: Amendment of PRC Trademark Law Aims to Combat Bad Faith Applications](https://www.thetmca.com/effective-november-1-amendment-of-prc-trademark-law-aims-to-combat-bad-faith-applications/) - On April 23, 2019, the Standing Committee of the National People’s Congress of the People’s Republic of China promulgated the fourth revision of the Trademark Law of the People’s Republic of China which will come into effect on November 1, 2019. This is the fourth amendment of the PRC Trademark Law after the amendments made in
- [Forever 21 and Ariana Grande “Face-Off” Over Lookalike Images](https://www.thetmca.com/forever-21-and-ariana-grande-face-off-over-lookalike-images/) - Ariana Grande, identified in a recent complaint filed in federal court as an “internationally renowned singer, songwriter and actress,” is challenging struggling retailer Forever 21’s use of images that allegedly mimic Ms. Grande’s likeness and persona. This is no small matter—Ms. Grande alleges that she has 160 million Instagram followers, and 64 million Twitter followers,
- [A Man Walks into a Bar… And Fair Use Is Found](https://www.thetmca.com/a-man-walks-into-a-bar-and-fair-use-is-found/) - It is no secret about the proliferation of copyright lawsuits that have been filed over the past four years over the unauthorized use of photos online, many against media companies that seek to shield themselves from liability with a fair use defense. A large number of these suits (over 1,600 at last count) have been
- [Booking.com Heads to the High Court](https://www.thetmca.com/booking-com-heads-to-the-high-court/) - Last Friday, the U.S. Supreme Court granted the USPTO’s writ of certiorari to review traveling website company Booking.com’s trademark application for “booking.com”. The TMCA previously covered developments in this case here and here. Back in 2016, the USPTO rejected the company’s trademark application because the proposed mark “Booking.com” was a generic term for the services
- [Adidas’ All-In Dispute with Church Sheds Light on Trademark Abandonment and Failure to Function as a Trademark](https://www.thetmca.com/adidas-all-in-dispute-with-church-sheds-light-on-trademark-abandonment-and-failure-to-function-as-a-trademark/) - In 2005, Christian Faith Fellowship Church, a Chicago-based church group, filed two trademark applications for the mark ADD A ZERO for use on clothing, including shirts and caps that they later sold to raise money for charity. One application was for a standard character word mark and the other application was a stylized
- [UPDATE re: The Ghosts of Past Licensing Agreements Continue to Haunt Ms. Pac-Man](https://www.thetmca.com/update-re-the-ghosts-of-past-licensing-agreements-continue-to-haunt-ms-pac-man/) - On November 6, 2019, I discussed a licensing dispute regarding Ms. Pac-Man between Bandai Namco and AtGames Holdings. At that time, Bandai Namco sought a preliminary injunction against AtGames based on AtGames’ alleged unauthorized infringement of Bandai Namco’s IP rights in Ms. Pac-Man. AtGames countered that it had not infringed Bandai Namco’s rights and had
- [PSALM WEST™: A Brand Is Born](https://www.thetmca.com/psalm-west-a-brand-is-born/) - On May 9, 2019, Kim Kardashian West and Kanye West’s fourth child, Psalm West, was born. On May 18, 2019, Kim Kardashian West’s company, fittingly named Kimsaprincess Inc., filed sixteen trademark applications for PSALM WEST for a litany of goods and services. Psalm isn’t the first child whose name Kim and Kanye have sought to
- [The Application of the First-to-File Rule Where Fruit is the First Ingredient](https://www.thetmca.com/the-application-of-the-first-to-file-rule-where-fruit-is-the-first-ingredient/) - In a dispute between two fruit product manufacturers concerning whether the phrase “Fruit is Our 1st Ingredient” is protectable as a trademark the parties initially litigated the application of the “first-to-file” rule where an anticipatory declaratory judgment suit is filed to achieve a jurisdictional advantage over a later-filed infringement action in another forum. J.M. Smucker Company
- [Google v. Oracle: SCOTUS Grants Cert In The “Copyright Lawsuit of the Decade"—Now What?](https://www.thetmca.com/google-v-oracle-scotus-grants-cert-in-the-copyright-lawsuit-of-the-decade-now-what/) - On November 15, 2019, the Supreme Court granted cert in Google LLC v. Oracle America Inc. For many observers, this was a long time coming; the parties have been litigating the underlying case since August 2010, and from its inception Google v. Oracle has been closely watched by commentators, earning the epithet of “copyright lawsuit
- [FDA a Buzzkill for 15 CBD Companies](https://www.thetmca.com/fda-a-buzzkill-for-15-cbd-companies/) - On November 25, 2019, the Food and Drug Administration sent a wave of warning letters to fifteen CBD companies claiming they are breaking federal food, drug, and cosmetic laws based on their current CBD product marketing and labelling. Prior to this, the FDA had separately sent letters to seven other CBD companies in 2019 and
- [’Tis the Season for Family Drama: Seventh Circuit Explains Reverse Trademark Confusion in Battle Over Family Name](https://www.thetmca.com/tis-the-season-for-family-drama-seventh-circuit-explains-reverse-trademark-confusion-in-battle-over-family-name/) - Just in time for the holidays, the U.S. Court of Appeals for the Seventh Circuit resolved a lawsuit rooted in the spirit of the season—family drama. Fabick, Inc. v. JFTCO, Inc. recounts a dispute that pit brother against brother and offers insight into the doctrine of reverse trademark confusion. The trademark at issue? The family’s
- [Dispute Over KIVA Trademark Continues to Smolder](https://www.thetmca.com/dispute-over-kiva-trademark-continues-to-smolder/) - A dispute over the trademark KIVA involving use of the mark with health food and cannabis continues to smolder in the Northern District of California. In late 2018, Kiva Health Brands (a national health food and supplements company) sued Kiva Brands (a company selling cannabis-infused edibles in California) under federal and state trademark law. Kiva
- [Syncing Workout Music with Licensing Requirements](https://www.thetmca.com/syncing-workout-music-with-licensing-requirements/) - 2019 brought many changes for fitness companies compiling the perfect playlist for group workout classes, especially for at-home virtual classes. Peloton’s most popular product is an indoor bicycle with live streaming and on-demand classes. Music is a key aspect of Peloton’s business because, unsurprisingly, users want inspiring tunes while they ride. These workouts, while similar
- [Jay-Z Has 99 Problems, and. . . Lack of Diversity Is One](https://www.thetmca.com/jay-z-has-99-problems-and-lack-of-diversity-is-one/) - Jay-Z and Iconix Brand recently settled a two-year old lawsuit centered on a $204 million licensing agreement. The settlement not only ends the federal lawsuit, but also ends an arbitration related to the suit which Jay-Z had petitioned to halt on novel grounds—i.e., lack of racial diversity among potential arbitrators. In its complaint, Iconix accused
- [Sued for Posting a Photo of Herself and Her Husband - The Kim Kardashian Version](https://www.thetmca.com/sued-for-posting-a-photo-of-herself-and-her-husband-the-kim-kardashian-version/) - Gigi Hadid’s done it, P. Diddy’s done it and now Kim Kardashian. Like any good social media influencer, Kim Kardashian posts photos of herself on her Instagram account. Back in October of 2018, she posted a rare picture of her husband, Kayne West, smiling with her by his side. To date more than 2.2 million
- [Romag v. Fossil: is “willfulness” the “principle of equity” or the “big kahuna,” or is this all “much ado about nothing”?](https://www.thetmca.com/romag-v-fossil-is-willfulness-the-principle-of-equity-or-the-big-kahuna-or-is-this-all-much-ado-about-nothing/) - The Supreme Court oral argument in the trademark case Romag v. Fossil provided an entertaining view of what some may consider a dry topic: legislative intent for damages awards in a trademark infringement case. Not to be lulled into a monotone and perfunctory argument, the parties engaged in spirited debate that quoted sources from Shakespeare
- [Slap A Logo On It – The Future of Winning a Design Patent Infringement Claim?](https://www.thetmca.com/slap-a-logo-on-it-the-future-of-winning-a-design-patent-infringement-claim/) - When I was a kid, we anxiously awaited Christmas Eve, with the exception of traditional lutefisk dinner. If you too have ingested lutefisk, you may agree that it is unpalatable. My Dad’s now family-famous quip was “just put more melted butter on it.” That quip went through my head while reading the Federal Circuit’s decision
- [The Coming Wave of California Consumer Privacy Act Lawsuits](https://www.thetmca.com/the-coming-wave-of-california-consumer-privacy-act-lawsuits/) - Since the beginning of the year, industry leaders and counsel advising clients on data security issues have held their collective breath in anticipation of the tsunami of California Consumer Privacy Act (CCPA) lawsuits. The CPPA, ballyhooed over the past few years as the next big thing in consumer litigation, is now the law in California.
- [From Pocket to Wrist: It’s Time to Watch Hamilton and Vortic](https://www.thetmca.com/from-pocket-to-wrist-its-time-to-watch-hamilton-and-vortic/) - I used to love pocket watches. My Wyatt Earp Halloween costume was not complete until I had a gold pocket watch hanging from my black vest. It’s no surprise then that reading the court’s decision on a motion for summary judgment in Hamilton Int’l Ltd. v. Vortic LLC piqued my interest. Vortic—a watchmaker that restores antique
- [Court Trims Cannabis Company’s Prior Use Defense Based on Preemption by Federal Trademark Law](https://www.thetmca.com/court-trims-cannabis-companys-prior-use-defense-based-on-preemption-by-federal-trademark-law/) - A federal district court has eliminated a cannabis company’s affirmative defense to federal trademark infringement claims based on the company’s prior use of a trademark that was legal under state law but not federal law. The Court concluded that, although use of the mark may have been legal under California law, “[c]annabis is illegal under
- [FTC Announces Regulatory Review of Endorsement Guides – Changes and Enforcement Actions Will Likely Follow](https://www.thetmca.com/ftc-announces-regulatory-review-of-endorsement-guides-changes-and-enforcement-actions-will-likely-follow/) - The FTC recently announced a regulatory review of its Endorsement Guides, which provide guidance to marketers to ensure that endorsements and testimonials for products and services are not misleading, particularly as to whether there is a “material connection” between the endorser and the marketer. The Guides interpret laws the FTC administers, and are therefore advisory
- [Hip-Hop Artist Drake Fairly Used Anti-Hip Hop Song Sample](https://www.thetmca.com/hip-hop-artist-drake-fairly-used-anti-hip-hop-song-sample/) - In an apparent win for musicians seeking to sample other’s works, on February 3, 2020, the Second Circuit declined to revive a copyright lawsuit against hip-hop musician Drake for his sampling of a 1980s spoken-word jazz recording, allowing the district court’s ruling to stand. Back in April of 2014, the estate of musician Jimmy Smith
- [Retrogaming Responsibly](https://www.thetmca.com/retrogaming-responsibly/) - In the past few years, retrogaming – collecting and playing video games from past generation consoles – has become incredibly popular. However, retrogaming raises some interesting copyright issues for both IP owners and gamers. One such issue is the gaming world concept of “abandonware.” This is the idea that, if an IP owner is no
- [This Could Change Everything: Nike Appeals Fleet Feet Injunction on Basis of Free Speech](https://www.thetmca.com/this-could-change-everything-nike-appeals-fleet-feet-injunction-on-basis-of-free-speech/) - Fleet Feet, Inc. is a national running equipment retail store chain and owner of the trademarks CHANGE EVERYTHING and RUNNING CHANGES EVERYTHING for retail sporting goods stores and athletic apparel and related goods and services. According to the company website, the company espouses the core belief that “running changes lives,” and thus transforms everything else.
- [Google v. Oracle: Should SCOTUS Declare Code is an Expression or an Idea?](https://www.thetmca.com/google-v-oracle-should-scotus-declare-code-is-an-expression-or-an-idea/) - In our prior post, we introduced the controversy at the center of “the copyright lawsuit of the decade” between Google and Oracle. Since then, both parties and 61 amici have submitted their briefs to the Supreme Court. This post focuses on the first question before the Court: whether copyright protection extends to the software interfaces
- [Led Zeppelin Reaches Heaven in Golden State Court: 9th Circuit Reverses Prior Decision in En Banc Ruling](https://www.thetmca.com/led-zeppelin-reaches-heaven-in-golden-state-court-9th-circuit-reverses-prior-decision-in-en-banc-ruling/) - We have previously written several posts about this copyright dispute over the signature opening guitar riff in the classic Led Zeppelin song “Stairway to Heaven.” You may recall, the estate of musician Randy Craig Wolfe, guitarist for the band Spirit, which reached some popularity in the 1960’s-70’s, filed suit against Led Zeppelin claiming that Jimmy
- [Shiver Me Timbers: Can the States Now Legitimately Hornswoggle Copyright Owners?](https://www.thetmca.com/shiver-me-timbers-can-the-states-now-legitimately-hornswoggle-copyright-owners/) - In a case where the subject matter (copyrights relating to footage of a salvaged pirate ship) is arguably more intriguing than the question presented, the Supreme Court held that a section of the Copyright Act allowing copyright lawsuits against States is unconstitutional. Under the statute in question—the Copyright Remedy Clarification Act of 1990 (“CRCA”)—a State “shall
- [First Circuit Shines Light on Murky Status of Copyright Sublicenses](https://www.thetmca.com/first-circuit-shines-light-on-murky-status-of-copyright-sublicenses/) - In a case of first impression at the appellate level, the First Circuit recently issued a decision highlighting that U.S. copyright law authorizes implied, not merely express, sublicenses of copyrighted works. Photographic Illustrators Corporation v. Orgill, Inc., Case No. 19-452 (1st Cir. Mar. 13, 2020). The case involved photos. Not just any photos mind you,
- [Copyrights & Coronavirus: The Copyright Register Steps Into the Breach](https://www.thetmca.com/copyrights-coronavirus-the-copyright-register-steps-into-the-breach/) - In the midst of our national pandemic, the Acting Register of Copyrights has issued a notice related to the timing of registration of copyrights. Here’s an explanation of what you need to know and why this may be an important development for your company or clients. Section 710 of the Copyright Act authorizes the Register,
- [TB Is Headed to TB…and He’s Taking His Trademark with Him](https://www.thetmca.com/tb-is-headed-to-tband-hes-taking-his-trademark-with-him/) - Even though professional sports are on an indefinite and unprecedented hiatus due to the global outbreak of coronavirus, professional athletes are still making moves behind the scenes. In particular, NFL quarterback and six-time Super Bowl champion, Tom Brady (often referred to as “TB”), will be relocating from Boston to Tampa Bay for the upcoming NFL
- [Epic Dance Moves Win Legal Dance-Off (Mostly)](https://www.thetmca.com/epic-dance-moves-win-legal-dance-off-mostly/) - In a recent decision, Judge John R. Padova of the federal court for the Eastern District of Pennsylvania dismissed seven out of eight of the claims brought by musician Leo Pellegrino alleging that Epic Games unlawfully copied his “Signature Move” in its massively popular online video game, “Fortnite.” Although Pellegrino’s false endorsement claims survives, this
- [Franzia’s Boxed Wine Packaging Redesign “Jammed” Up in Trademark Dispute](https://www.thetmca.com/franzias-boxed-wine-packaging-redesign-jammed-up-in-trademark-dispute/) - On April 1, 2020, JaM Cellars filed a trademark infringement lawsuit against The Wine Group, makers of the popular Franzia brand boxed wine. Plaintiff JaM Cellars is the owner of trademarks relating to the word JAM used in wine products (U.S. Trademark Registration Nos. 3,787,229 and 3,855,785). According to the complaint, since being introduced in
- [Are Color Trademarks on Product Packaging Inherently Distinctive?](https://www.thetmca.com/are-color-trademarks-on-product-packaging-inherently-distinctive/) - On April 8, 2020, the Court of Appeals for the Federal Circuit issued a decision on an appeal from the refusal of registration of a color trademark by the Trademark Trial and Appeal Board. In this case, the applicant, Forney Industries, Inc., a maker of welding and machining tools and accessories, filed a trademark application
- [FTC Works to Thwart Coronavirus Scams](https://www.thetmca.com/ftc-works-to-thwart-coronavirus-scams/) - As the collective consciousness coalesces around coronavirus fears, scammers are capitalizing on the opportunity to exploit the concerned. In recent months, the Federal Trade Commission (“FTC”) has noted the emergence of scams related to the coronavirus, including Medicare scams, scams around relief payments, scams implicating goods that are never delivered, and scams collecting money in
- [Ruling in Romag v. Fossil: Willfulness is Neither the “Principle of Equity” nor the “Big Kahuna,” and Infringer’s Profits Can be Awarded Even for Innocent Infringement](https://www.thetmca.com/ruling-in-romag-v-fossil-willfulness-is-neither-the-principle-of-equity-nor-the-big-kahuna-and-infringers-profits-can-be-awarded-even-for-innocent-infri/) - Yesterday the U.S. Supreme Court overturned the Second Circuit, and ruled that infringer’s profits can be awarded even without a showing of willful infringement. A jury had ruled that Fossil acted in “callous disregard” of Romag’s trademark rights when Fossil’s Chinese manufacturers used counterfeit Romag fasteners. To recap the case posture, described in a prior
- [#igers Beware - Embedded Instagram Post Found Not To Infringe Copyright](https://www.thetmca.com/igers-beware-embedded-instagram-post-found-not-to-infringe-copyright/) - A recent decision of the Southern District of New York shields digital publishers from copyright infringement when embedding public Instagram posts in news pieces posted online. In the case, Stephanie Sinclair, a Pulitzer-Prize winning photojournalist focusing on gender and human rights topics, sued the online publisher and entertainment platform Mashable in 2018 for using her
- [Not So Peachy in Georgia: Supreme Court Holds Annotated Code Not Eligible for Copyright Protection](https://www.thetmca.com/not-so-peachy-in-georgia-supreme-court-holds-annotated-code-not-eligible-for-copyright-protection/) - In a 5-4 decision with the majority opinion delivered by Chief Justice Roberts, the Supreme Court held that copyright protection does not extend to annotations in Georgia’s official annotated code. The Code Revision Committee of the State of Georgia (the “Commission”) had sued a company called Public.Resource.Org for posting a digital version of the annotated
- [Protecting Famous Names in China – Michael Jordan and His Eight-Year Trademark Battle in China](https://www.thetmca.com/protecting-famous-names-in-china-michael-jordan-and-his-eight-year-trademark-battle-in-china/) - On March 26, 2020, the Chinese Supreme People’s Court (the “SPC”), the highest court in China and thus China’s equivalent to the United States Supreme Court, issued its re-trial decision, giving Michael Jordan an assist against Registration No. 6020578 for the mark “Qiaodan in Chinese characters & Design” in Class 25 owned by Qiaodan Sports
- [Naming Conventions: According to the Ninth Circuit, Not Every Comic Convention Is a “Comic-Con”](https://www.thetmca.com/naming-conventions-according-to-the-ninth-circuit-not-every-comic-convention-is-a-comic-con/) - Even devoted comic book fans and other true believers might not know that the term “Comic-Con” is meant to refer to the king of comic conventions—the San Diego Comic Convention (“SDCC”)—not all comic conventions in general. Until now! In the recent San Diego Comic Convention v. Dan Farr Prods., No. 18-56221 (9th Cir. April 20,
- [Live Long and Mashup: Seussian-Style Universe Deemed Acceptable Fair Use](https://www.thetmca.com/live-long-and-mashup-seussian-style-universe-deemed-acceptable-fair-use/) - In June of 2017, channeling the Seussian musings of the case at hand, we first introduced you to the Southern District of California case, Seuss Enters., L.P. v. Comicmix LLC, 372 F. Supp. 3d 1101 (S.D. Cal. 2019), which promised to have a major impact on copyright fair use rulings. Since the time of our
- [Kawhi Leonard told to keep his hands off Nike’s logo](https://www.thetmca.com/kawhi-leonard-told-to-keep-his-hands-off-nikes-logo/) - In an oral ruling last month, Oregon District Court Judge Michael W. Mosman granted Nike’s motion dismissing NBA star Kawhi Leonard’s claims that he rightfully owned “The Claw” logo. The Claw is a logo depicting Leonard’s initials “KL” and jersey number “2” in the palm of an outstretched hand. Although no written order has been
- [New Developments in JaM Cellars Trademark Dispute With Franzia Wines](https://www.thetmca.com/new-developments-in-jam-cellars-trademark-dispute-with-franzia-wines/) - The TMCA has been covering two pending trademark infringement cases brought by JaM Cellars against The Wine Group’s “Flavor First” line extension of its Franzia brand, and since our last post, there have been two developments of note. In the first case, involving JaM’s claim that the Franzia RICH & BUTTERY Chardonnay infringed JaM’s registered
- [Seventh Circuit Decision in Corn Syrup Beer Advertising Battle – Ingredient List is Key to Decision](https://www.thetmca.com/seventh-circuit-decision-in-corn-syrup-beer-advertising-battle-ingredient-list-is-key-to-decision/) - A lot has happened since we last checked in on the Corn Syrup battle between the parent companies of Bud Light, Miller Lite, and Coors Light. The Seventh Circuit Court of Appeals, in a split opinion, issued an intervening order on October 18, 2019, finding that the District Court failed to properly issue the injunction
- [A Lucky Day at the Supreme Court for Lucky Brand](https://www.thetmca.com/a-lucky-day-at-the-supreme-court-for-lucky-brand/) - Lucky Brand has emerged victorious in the latest skirmish of its nearly 20-year trademark litigation battle with Marcel Fashions, a competitor in the apparel business. In Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc., its second trademark decision of this term, the Supreme Court unanimously reversed the U.S. Court of Appeals for the Second
- [The Greek Freak Flexes His Trademark Muscles](https://www.thetmca.com/the-greek-freak-flexes-his-trademark-muscles/) - NBA superstar and reigning NBA MVP Giannis Antetokounmpo recently filed a series of trademark infringement lawsuits in the Southern District of New York against online retailers and their operators. In the lawsuits, Antetokounmpo claims that the retailers were selling merchandise bearing his nickname—the Greek Freak—along with his likeness. Over the past several years, as Antetokounmpo
- [“Running Man” Case Trips, Falls, and Is Dismissed](https://www.thetmca.com/running-man-case-trips-falls-and-is-dismissed/) - Just two months ago, we published a post about an Eastern District of Pennsylvania decision in the Pellegrino v. Epic Games case regarding Epic’s online battle royale video game, Fortnite. In that case, saxophonist Leo Pellegrino alleged that a Fortnite “emote” (i.e., a feature sold by Epic to players to allow their avatars to perform
- [Divorce, Trademark Infringement, and Naked Licensing—Eighth Circuit Grapples With Lawn Care Quality Control](https://www.thetmca.com/divorce-trademark-infringement-and-naked-licensing-eighth-circuit-grapples-with-lawn-care-quality-control/) - When family feuds become federal trademark cases, this blog takes notice. In this edition, the U.S. Court of Appeals for the Eighth Circuit wades into a dispute between divorced lawn care proprietors. Their divorce “Mutual Separation Agreement” split their business in half but, for a time, permitted both businesses to use the same name. Central
- [Supreme Court Upholds Registrability of BOOKING.COM Trademark and Rejects Per Se Rule for Generic.Com Trademarks](https://www.thetmca.com/supreme-court-upholds-registrability-of-booking-com-trademark-and-rejects-per-se-rule-for-generic-com-trademarks/) - The Supreme Court handed down its decision today, affirming that BOOKING.COM is a protectable and registrable trademark for “hotel reservation services,” and rejecting the premise that a generic.com term is ineligible for trademark protection. The Court held that the USPTO’s attempted advancement of a per se rule that a “generic.com” results only in a generic
- [Take Two: Photographer’s Copyright Suit Over Embedded Instagram Post is Revived](https://www.thetmca.com/take-two-photographers-copyright-suit-over-embedded-instagram-post-is-revived/) - We recently blogged about an April 2020 decision of the federal court for the Southern District of New York, which dismissed a copyright infringement suit brought by Stephanie Sinclair, a Pulitzer-Prize winning photojournalist, against the online publisher and entertainment platform, Mashable. Mashable had embedded a public Instagram post of Sinclair’s featuring one of her images
- [AI Inventorship Still a No-Go, But Will the Copyright Office Change Its Tune for Music Created by AI?](https://www.thetmca.com/ai-inventorship-still-a-no-go-but-will-the-copyright-office-change-its-tune-for-music-created-by-ai/) - The rise of Artificial Intelligence (AI) over the past decade is undeniable, and we reap its benefits throughout the day when using our smartphones, managing our bank accounts, listening to a customized playlist, shopping online, etc. What may be less apparent to the casual observer is the use of AI in creative endeavors. Some AI
- [Washington Football Team to Change Its Name: Some Lessons on How Not to Get Sacked](https://www.thetmca.com/washington-football-team-to-change-its-name-some-lessons-on-how-not-to-get-sacked/) - The Washington, D.C. professional football team recently announced plans to cease using the name “Redskins” in favor of a new name. The “Redskins” name has been the source of both cultural and trademark conflict through the years. This sort of name change raises a number of legal issues that are germane to all types of
- [CNIPA Issues Systematic Guidelines for Determination of Trademark Infringement in Administrative Enforcement Actions](https://www.thetmca.com/cnipa-issues-systematic-guidelines-for-determination-of-trademark-infringement-in-administrative-enforcement-actions/) - An administrative enforcement action is one of the ways to enforce registered trademark rights in China against infringers, especially counterfeiters. Such enforcement actions are conducted by the Administration of Market Regulation (MSA) and its local branches. After receiving a complaint of trademark infringement, an MSA officer would need to first determine whether the complained-of act
- [Beyoncé Trademark Case Provides Evidentiary Lessons Before the TTAB](https://www.thetmca.com/beyonce-trademark-case-provides-evidentiary-lessons-before-the-ttab/) - Veronica Morales, a wedding/event planner providing services under the trademark BLUE IVY (depicted above), has unsuccessfully challenged a pending application for the mark BLUE IVY CARTER, filed by BGK Trademark Holdings, LLC (Beyoncé Giselle Knowles-Carter). The decision contains some helpful lessons on how to pursue a discovery dispute in accordance with Board procedures to ensure
- [Tiffany & Co. Jury Verdict Against Costco Loses All Its Luster](https://www.thetmca.com/tiffany-co-jury-verdict-against-costco-loses-all-its-luster/) - It is an epic trademark dispute with a lot of bling. Tiffany & Co. vs. Costco. The famed jeweler from the east vs. the titan of warehouse discounts from the west. A jury found that Costco was liable to Tiffany & Co. to the tune of over $21,000,000 for trademark infringement and related claims due
- [“Zone of Expansion”: A Lesson in Federal Trademark Protection For Unlawful Products?](https://www.thetmca.com/zone-of-expansion-a-lesson-in-federal-trademark-protection-for-unlawful-products/) - Now we wait. The final brief was submitted this past week in connection with an interlocutory appeal to the Second Circuit of the district court’s denial of a preliminary injunction over use of the WOODSTOCK mark. Potentially at issue in the appeal is whether Plaintiffs or Defendants, or neither, has the superior right to use
- [Hong Kong Prepares to Implement the Madrid Protocol and Makes Other Changes: Trade Marks (Amendment) Ordinance 2020](https://www.thetmca.com/hong-kong-prepares-to-implement-the-madrid-protocol-and-makes-other-changes-trade-marks-amendment-ordinance-2020/) - On June 19, 2020, the Trade Marks (Amendment) Ordinance was published in the Gazette of the Hong Kong Special Administrative Region Government, providing a basis for the application of the Madrid Protocol, consolidating the criminal enforcement powers, and making some other technical amendments to the Trade Marks Ordinance (Cap. 559, Laws of Hong Kong).
- [You Snooze, You Lose! Inadequate Disclosures in Native Advertising](https://www.thetmca.com/you-snooze-you-lose-inadequate-disclosures-in-native-advertising/) - If you’ve never had insomnia, consider yourself lucky. For the rest of us still awake at 3:00 am trying to count sheep, the promise of a plush mattress made out of clouds seems like a dream come true. With social distancing measures now in place, some mattress companies have continued to meet high demand through
- [Google v. Oracle: Fair Use and the Seventh Amendment](https://www.thetmca.com/google-v-oracle-fair-use-and-the-seventh-amendment/) - On August 7, 2020, Google and Oracle submitted their final written arguments to the Supreme Court regarding their decade-long copyright battle over the source code animating the Android platform. Now, we focus on the second question presented to the Supreme Court: whether Google’s copying of Oracle’s Java source code is a non-infringing fair use. Recall
- [Google v. Oracle: What We Learned from Oral Argument](https://www.thetmca.com/google-v-oracle-what-we-learned-from-oral-argument/) - On October 7, 2020, the Supreme Court heard arguments in Google v. Oracle, a decade-long battle challenging Oracle’s claim to own copyrights in certain aspects of its Java software platform that Google implemented in Android phones without taking a license. We’ve been tracking this case since last December, with deep dives on each of the
- [TTAB Weighs in on Registrability of CBD Trademarks](https://www.thetmca.com/ttab-weighs-in-on-registrability-of-cbd-trademarks/) - In a precedential decision earlier this year, the Trademark Trial and Appeal Board thinned some of the haze surrounding the registrability of trademarks for hemp-derived CBD products. In line with the U.S. Patent and Trademark Office guidelines issued last year, the Board confirmed that marks covering food and dietary supplements containing hemp-derived CBD are not
- [Infringers Beware! .Com gTLDs Now Supported by Trademark Clearinghouse](https://www.thetmca.com/infringers-beware-com-gtlds-now-supported-by-trademark-clearinghouse/) - In the ever-raging battle against trademark infringers gobbling up domain names for squatting purposes, trademark owners received a new tool in their arsenal, thanks to a recent update with the Ongoing Notification Service of the Trademark Clearinghouse (TMCH). The TMCH is a centralized database of verified trademarks, built into the Internet Corporation for Assigned Names
- [Who – What – Where? Trademark and Copyright Venue in 2020 and Beyond](https://www.thetmca.com/who-what-where-trademark-and-copyright-venue-in-2020-and-beyond/) - In recent years, commentators have discussed patent venue ad nasuem in the run-up to and following the Supreme Court’s 2017 decision in TC Heartland. In a nutshell: after TC Heartland restricted the circumstances under which venue can be found proper for patent cases, plaintiffs brought fewer cases in the Eastern District of Texas. (Before TC
- [#AdLaw - A Quick Wrap-Up From The 2020 ANA/BAA Marketing Law Conference](https://www.thetmca.com/adlaw-a-quick-wrap-up-from-the-2020-ana-baa-marketing-law-conference/) - Last week we quickly pivoted from watching the 24/7 "Map Show" to spending our screen time learning at the ANA 2020 Marketing Law Conference. It was a great three days in Chicago in our pajamas of educational seminars. If you didn’t make it this year, don’t worry – here’s a quick wrap-up of the highlights:
- [The Name Lives On: the eCommerce Rebirth of Brick and Mortar Brands](https://www.thetmca.com/the-name-lives-on-the-ecommerce-rebirth-of-brick-and-mortar-brands/) - The impact of COVID-19 restrictions and precautions, combined with trending consumer preferences to shop online, is fueling bankruptcy filings of well-known brick-and-mortar brands. As customers bid farewell to fond strip mall haunts, savvy and imaginative purchasers reap the benefits by snapping up household names like RadioShack, Pier 1 Imports, and Toys “R” Us. The retail
- [Fair Use Mashup Theory Ga-Fluppted by Ninth Circuit](https://www.thetmca.com/fair-use-mashup-theory-ga-fluppted-by-ninth-circuit/) - Just in time to steal ComicMix’s Christmas, the Ninth Circuit recently held that the bookmaker’s mashup story Oh, the Places You’ll Boldly Go! (which combines elements of the Dr. Seuss book Oh, the Places You’ll Go! with Star Trek) is not a defensible fair use under copyright law. The opinion reverses in part a summary
- [Highlights Part I of the Trademark Modernization Act of 2020: Irreparable Harm and TTAB Inferior Officers](https://www.thetmca.com/highlights-part-i-of-the-trademark-modernization-act-of-2020-irreparable-harm-and-ttab-inferior-officers/) - After a fair amount of end-of-year legislative drama, the Trademark Modernization Act of 2020 (“TMA”) was signed into law on December 27, 2020 as part of the Consolidated Appropriations Act for 2021, which also included needed funding for COVID-19 relief and support. The text of the Act from the House Report can be seen here.
- [What’s in a Name? Influencer Trademark Name Disputes Provide Lessons for the New Year on Clarity in Agreements](https://www.thetmca.com/whats-in-a-name-influencer-trademark-name-disputes-provide-lessons-for-the-new-year-on-clarity-in-agreements/) - Many industries were negatively impacted by the pandemic in 2020, but one industry that continues to grow is the influencer marketing industry. The influencer marketing model typically involves agreements between companies and influencers, where the influencer creates content promoting companies’ products for posts on social media and blog sites. Influencers have often built their brands,
- [Derby Pie Eats Humble Pie](https://www.thetmca.com/derby-pie-eats-humble-pie/) - Rupp v. Courier-Journal, Inc. involves a dispute between the makers of DERBY-PIE®—a trademarked chocolate-nut pie—and a local newspaper that published two articles about other businesses creating other chocolate-nut desserts. Departing somewhat from its own ruling decades earlier in a separate case involving “Derby pie,” the Sixth Circuit doled out a loss to Rupp, affirming the
- [Graham Cracker Caper or Class Action Case? Consumer Survey Evidence May Tell Us](https://www.thetmca.com/graham-cracker-caper-or-class-action-case-consumer-survey-evidence-may-tell-us/) - Graham Crackers—the ubiquitous, rectangular-shaped snack crackers with air holes and perforations—occupy a unique niche in American snack food lore. In the 1830s, the Rev. Sylvester Graham, a Presbyterian minister from Connecticut, became a ferocious advocate of healthy living. Among other things, he invented his “Graham Bread” made from coarsely ground unsifted wheat flour. Apparently, a
- [Down the Hatch: Jägermeister Douses Impaired Survey Evidence in Trademark Victory](https://www.thetmca.com/down-the-hatch-jagermeister-douses-impaired-survey-evidence-in-trademark-victory/) - Jägermeister: it’s no longer for “pukey frat guys.” Or, at least according to Jägermeister’s recent adversary, that was the sordid reputation Jägermeister wanted to shed in a PR blitz launched in 2016. Instead of being associated with “Jägerbombs” and spring break ragers, Jäger sought a more sophisticated, hip, and “KÜHL” vibe. Billboards, commercials, and digital
- [To Kalon: Trademark or Geographical Description](https://www.thetmca.com/to-kalon-trademark-or-geographical-description/) - The Northern District of California concluded last week that Constellation Brands has the exclusive right to use the TO KALON and TO KALON VINEYARD marks on wine, and that The Vineyard House, LLC (TVH) “cannot use the term in any way, shape or form.” At issue was Constellation’s claim that TVH was improperly selling wine using
- [Extricating the UK from the European Union IP Systems – Contrasting Approaches Across the Channel](https://www.thetmca.com/extricating-the-uk-from-the-european-union-ip-systems-contrasting-approaches-across-the-channel/) - The European Union (“EU”) has shaped and developed Intellectual property (“IP”) policy extensively over the years. IP law in EU member states is today largely a matter of EU law. Key areas of IP are dominated by EU rights and institutions. Separating the United Kingdom (“UK”) out of those systems can be a complicated matter.
- [Textile Design Similarity In The Eye Of The Beholder (The Jury): H&M Found Liable For Copyright Infringement](https://www.thetmca.com/textile-design-similarity-in-the-eye-of-the-beholder-the-jury-hm-found-liable-for-copyright-infringement/) - On December 7, a federal jury in Los Angeles awarded $846,720 in damages to Unicolors, Inc. in its suit against H&M Hennes & Mauritz, LP for copyright infringement of a textile design. Unicolors, Inc. v. H&M Hennes & Mauritz L.P., Case No. 2:16-cv-02322 (C.D. Cal). Here is a comparison of the designs at issue that
- [Uber Hits a Bump in the Road with Its Self-Driving Technology with Alleged Trade Secret and Patent Violations](https://www.thetmca.com/uber-hits-a-bump-in-the-road-with-its-self-driving-technology-with-alleged-trade-secret-and-patent-violations/) - In February, Waymo LLC, formerly Google’s self-driving car development company, sued Uber Technologies, Inc. and others in federal court in San Francisco for, among other things, violations of the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836 et seq., and patent infringement, and for a preliminary injunction against defendants’ use of the allegedly
- [Melania Trump's RNC Speech:  Plagiarism, Copyright Infringement, or Both?](https://www.thetmca.com/melania-trumps-rnc-speech-plagiarism-copyright-infringement-or-both/) - On the opening night of the Republican National Convention, Donald Trump’s wife, Melania, delivered a speech from the convention floor in support of Trump's nomination. The speech was infused with rhetoric about such things as “hard work,” “your word is your bond,” and that one should “treat others with respect.” Right after her speech,
- [Copyright Fair Use in the Land of Famous Potatoes](https://www.thetmca.com/copyright-fair-use-in-the-land-of-famous-potatoes/) - It isn’t all that often that copyright decisions get handed down by the federal district court in the great state of Idaho, so the recent decision in James Castle Collection v. Scholastic, Inc. caught our attention. The Court’s fair use analysis caught our attention too, particularly the first factor that analyzes the “purpose and character
- [Dr. Seuss is Drooling Over Court's Pre-Holiday Ruling](https://www.thetmca.com/dr-seuss-is-drooling-over-courts-pre-holiday-ruling/) - You know of this lawsuit, we’ve blogged on it twice, It’s time for a check-in, to see who’s naughty and nice. The Plaintiff as you know is the heir of Dr. Seuss, And fussing and fuming about an alleged unfair use. The work that’s at issue is one that you know, It’s a book
- [Louis Vuitton Not Liable for Attorneys’ Fees in Case of Parody Handbags](https://www.thetmca.com/louis-vuitton-not-liable-for-attorneys-fees-in-case-of-parody-handbags/) - In January 2016 and January 2017, we blogged about a trademark and copyright dispute between Louis Vuitton Malletier, S.A. and My Other Bag, Inc. (“MOB”) over a line of canvas tote bags that parodied Louis Vuitton’s iconic designer handbags. In this January 2018 blog edition, we report on a recent district court decision denying a motion
- [Extra Foam, Please:  Common Sense Prevails and Court Finds that Starbucks Lattes Contain Foam](https://www.thetmca.com/extra-foam-please-common-sense-prevails-and-court-finds-that-starbucks-lattes-contain-foam/) - Yes, you read the title of this post correctly – Judge Rogers of the Northern District of California granted summary judgement in favor of Starbucks in a proposed class action lawsuit alleging that the coffee company deceived consumers by underfilling lattes and mochas. The plaintiffs’ filed suit alleging common law breach of express warranty and
- [Champagne for the New Year – Trademark or Geographic Indicator?](https://www.thetmca.com/champagne-for-the-new-year-trademark-or-geographic-indicator/) - Did you celebrate with a sip of Champagne on New Year’s Eve? Champagne is not just a sparkly beverage consumed around the world, it also refers to the region in northeastern France where the drink originated. For centuries, this region has grown, produced, and labeled its sparkling wine under the “Champagne” name. However, California vintners
- [What’s up with WHOIS? The GDPR May Limit or Prevent Access to Domain Name Registration Information](https://www.thetmca.com/whats-up-with-whois-the-gdpr-may-limit-or-prevent-access-to-domain-name-registration-information/) - Domain name registrars and registries might soon be changing their mantra from, “I think ICANN,” to, “Maybe ICANN’T,” when it comes to providing publicly available WHOIS information for domain name registrants. New potential models for WHOIS will be posted January 15, 2018, and attempts to salvage at least most of the existing WHOIS system are
- [Federal Circuit Holds Lanham Act Prohibition Against Registration of Scandalous and Immoral Marks Is FUCT](https://www.thetmca.com/federal-circuit-holds-lanham-act-prohibition-against-registration-of-scandalous-and-immoral-marks-is-fuct/) - On December 15, 2017, a Federal Circuit panel held the Lanham Act prohibition against registration of “immoral” or “scandalous” marks (interpreted to include vulgar terms) unconstitutionally restricts free speech, and therefore the Patent and Trademark Office’s refusal to register the mark FUCT for clothing was improper. In re Brunetti, 2017 U.S. App. LEXIS 25336. The
- [Comic Convention Giant Victorious in Trademark Suit – “Comic-Con” is Not Generic](https://www.thetmca.com/comic-convention-giant-victorious-in-trademark-suit-comic-con-is-not-generic/) - Fan boys and fan girls may soon see changes to the names of their favorite pop culture events given a federal jury’s recent ruling that the term “Comic-Con” is not generic, but instead a valid, federally-registered trademark owned by San Diego Comic Convention. Following a ten-day trial, a jury in the Federal District Court in
- [Has Fox’s “Empire” Ended the Battle? Ninth Circuit Expands Scope of Permissible Promotion of Expressive Works](https://www.thetmca.com/has-foxs-empire-ended-the-battle-ninth-circuit-expands-scope-of-permissible-promotion-of-expressive-works/) - On the day after the airing of “Fortune Be Not Crost,” the sixth episode of season four of Fox’s popular show “Empire,” Fox had some good fortune of its own when the Ninth Circuit Court of Appeals affirmed a declaratory judgment of non-infringement involving “Empire.” In Twentieth Century Fox TV v. Empire Distrib., Inc., the
- [Another FTC Strike Against “Selfie” Certification Marks](https://www.thetmca.com/another-ftc-strike-against-selfie-certification-marks/) - We’ve blogged about recent enforcement actions taken by the FTC against companies using deceptive “selfie” certification marks. These are seals of approval created by or otherwise affiliated with the companies whose products or services are being marketed, without disclosure of the material connection between the certifier and the company. Last week, the FTC struck again
- [Consent Agreements - Not Always a Sure Path to Overcome Likelihood of Confusion Refusals in the USPTO](https://www.thetmca.com/consent-agreements-not-always-a-sure-path-to-overcome-likelihood-of-confusion-refusals-in-the-uspto/) - The Trademark Trial and Appeal Board recently affirmed a refusal to register the mark 8-Bit Aleworks for beer based on two prior registrations for the mark 8 bit Brewing Company for beer and other alcoholic malt beverages, notwithstanding a consent agreement entered into between the applicant and the prior registrant. The result in In re
- [Three Reasons to File a Design Patent with your Utility Patent](https://www.thetmca.com/three-reasons-to-file-a-design-patent-with-your-utility-patent/) - When filing a utility patent that includes design elements, the patentee is often faced with the question “should I also file a design patent?” The patentee may answer with “there is no need to file the design patent since the design elements are covered by the utility patent.” However, a recent case in the United
- [#MarketingLaw - Fake News, Auto-Renewal Subscription Plans, Influencers and the Latest from the FTC](https://www.thetmca.com/marketinglaw-fake-news-auto-renewal-subscription-plans-influencers-and-the-latest-from-the-ftc/) - We are back from the 2017 ANA/BAA Marketing Law Conference, Break Through: Legal Strategies for Dynamic Businesses. It was a great three days in Chicago of educational seminars and networking with colleagues, clients, friends and the FTC. If you didn’t make it this year, don’t worry – here’s a quick wrap-up of the highlights: Influencers
- [The TTAB Issued a TKO to a Licensee’s Claim of Priority](https://www.thetmca.com/the-ttab-issued-a-tko-to-a-licensees-claim-of-priority/) - When two boxing companies sparred before the TTAB, the gloves came off—and that wasn’t only because the dispute concerned a trademark registration for boxing gloves. In Moreno v. Pro Boxing Supplies, Inc., the petitioner, Julie Moreno, sought to cancel Pro Boxing Supplies’ existing trademark registration for Casanova and oppose the registration of two additional CASANOVA
- [Competitor’s Claim of False Advertising Through Use of Certification Mark Dismissed](https://www.thetmca.com/competitors-claim-of-false-advertising-through-use-of-certification-mark-dismissed/) - In Board-Tech Elec. Co. v. Eaton Electric Holdings LLC, the U.S. District Court for the Southern District of New York recently dismissed a novel claim that a competitor’s authorized use of a third party’s certification mark in connection with products that allegedly did not comply with the mark’s certification standards constituted false advertising in violation
- [DMCA Agent Registration Reminder](https://www.thetmca.com/dmca-agent-registration-reminder/) - If your company hosts any type of user generated content on a website, then you should appoint and record a Digital Millennium Copyright Act (“DMCA”) agent with the Copyright Office to take advantage of safe harbor provisions set forth in the Copyright Act. As we wrote in a post on November 2016, the Copyright Office
- [Can You Be Fired for Flipping off the President? Yes… Well… Maybe Not](https://www.thetmca.com/can-you-be-fired-for-flipping-off-the-president-yes-well-maybe-not/) - There is a widespread myth in this country that the First Amendment protects free speech in the workplace. Employees who loudly state controversial opinions often think the First Amendment protects them from being fired as a result. When Google fired James Damore last summer for posting what many described as an anti-diversity manifesto, social media
- [Advertising Your Glowing Online Reviews – How To Substantiate Ad Claims Based on Consumer Reviews](https://www.thetmca.com/advertising-your-glowing-online-reviews-how-to-substantiate-ad-claims-based-on-consumer-reviews/) - We’ve blogged a few times about consumers’ rights to post negative reviews online, and what businesses should know about the Consumer Review Fairness Act (the “CRFA”), but what happens if you are lucky enough to receive so many glowing reviews that you’d like to advertise the accumulation of over 10,000 five star reviews? The National
- [TTAB Appeal Fees – Winner Does Not Take All](https://www.thetmca.com/ttab-appeal-fees-winner-does-not-take-all/) - We recently wrote about the decision in the federal district court for the Eastern District of Virginia, which overturned in part the Trademark Trial and Appeal Board’s decision that the mark “Booking.com” is not registrable because the mark is generic. The route of the appeal of the refusal decision was unusual because Booking.com, B.V. did
- [#TidalTuesday #UseInCommerce #RegistrationFail](https://www.thetmca.com/tidaltuesday-useincommerce-registrationfail/) - A recent decision by the Trademark Trial and Appeal Board in Tidal Music AS v. The Rose Digital Entertainment LLC (Opp. No. 91232127) confirms the importance of ensuring proper use of a service mark before filing an allegation of use. The key take-away from the decision is that when filing an application based on use in
- [U.S. v. Microsoft: Supreme Court to Review Scope of Search Warrant Compliance in a Digital Age](https://www.thetmca.com/u-s-v-microsoft-supreme-court-to-review-scope-of-search-warrant-compliance-in-a-digital-age/) - The US Supreme Court has granted certiorari to review a decision by the Second Circuit Court of Appeals, which reversed a District Court’s refusal to quash a warrant issued by the Department of Justice to Microsoft that would have required it to produce information housed in an overseas server. The case underscores the increasingly challenging
- [The End of the Line for the Dirty Dancing Case](https://www.thetmca.com/the-end-of-the-line-for-the-dirty-dancing-case/) - We have previously blogged about claims brought by Lions Gate Entertainment against a TD Ameritrade ad campaign featuring the tagline “Nobody puts your old 401K in a corner.” This was an obvious and humorous allusion to the iconic line from Dirty Dancing that “Nobody puts Baby in a corner,” heightened by the ad’s depiction of
- [Whoomp! There It Is: A Copyright Judgment Creditor’s Final Recovery](https://www.thetmca.com/whoomp-there-it-is-a-copyright-judgment-creditors-final-recovery/) - 24 years after Tag Team’s hit song “Whoomp! (There It Is)” topped the charts, a long and ugly dispute regarding ownership rights to the song and related copyright infringement damages has been settled in bankruptcy court. The dispute and its resolution showcase a not uncommon end for large IP judgments: the judgment debtor files for
- [FTC Seal of Disapproval for “Selfie” Certification Marks](https://www.thetmca.com/ftc-seal-of-disapproval-for-selfie-certification-marks/) - For many years, consumers have relied on certification marks like the Good Housekeeping Seal of Approval and the UL logo as an assurance of product quality. Administered by independent organizations, consumers reasonably expect that the certification is not biased by a financial or ownership stake in the companies whose products are being certified. A different
- [Flawed Consumer Survey Wipes Out $54 Million Verdict in Trademark Infringement Dispute](https://www.thetmca.com/flawed-consumer-survey-wipes-out-54-million-verdict-in-trademark-infringement-dispute/) - In trademark infringement cases, consumer survey evidence can be a powerful tool. It can also badly malfunction, as Black & Decker recently experienced. In Black & Decker v. Positec USA, the trial court demolished a $54 million jury verdict because Plaintiff’s case was constructed upon a hopelessly flawed consumer survey. The trial court’s post-trial ruling
- [No Free Ride for Copycat Perfume Company – Fair Use Rejected, False Advertising Found, Accounting of Profits Awarded](https://www.thetmca.com/no-free-ride-for-copycat-perfume-company-fair-use-rejected-false-advertising-found-accounting-of-profits-awarded/) - Well-known perfume marketer Coty Inc. had a big win in New York federal district court, obtaining injunctive relief and $6.5 million dollars in an accounting of profits from copycat perfume seller Excell Brands, LLC. In an eighty-two page opinion (with product pictures helpfully included), Southern District Judge Furman rejected Excell’s arguments of nominative fair use and
- [Sued for Retweeting - Yes, That Just Happened](https://www.thetmca.com/sued-for-retweeting-yes-that-just-happened/) - On Monday this week, a sports psychologist named Keith Bell sued King’s College in Pennsylvania and its football coach, Jeffery Knarr, for retweeting a photo of a page of Dr. Bell’s book “Winning Isn’t Normal.” In his complaint, Dr. Bell alleged copyright infringement, trademark infringement and violations of Pennsylvania common law. Interestingly, Dr. Bell complains
- [Following The Earnhardt’s Race To the Courtroom, USPTO Raises the Bar on Surnames](https://www.thetmca.com/following-the-earnhardts-race-to-the-courtroom-uspto-raises-the-bar-on-surnames/) - Last month we reported on the Federal Circuit decision in Earnhardt v. Earnhardt, vacating and remanding the TTAB’s dismissal of the opposition by Teresa Earnhardt (widow of Dale Earnhardt) to the “Earnhardt Collection” trademark application filed by her stepson Kerry Earnhardt. On remand, the Court required the Board to determine the primary significance of both
- [Did You Attend the FTC’s #Influencers101 Twitter Chat? If Not, We Took Notes.](https://www.thetmca.com/did-you-attend-the-ftcs-influencers101-twitter-chat-if-not-we-took-notes/) - On Wednesday afternoon, the FTC hosted a live Q&A Twitter chat on influencer advertising. In case you missed it, we took some notes on the most helpful tweets. The Q&A covered topics such as Facebook likes, social media platform disclosure tools (the FTC Staff said they don't find these effective!), disclosures in videos, foreign-based influencers,
- [The Latest Influencer Advertising Tips from the FTC - When, How & Where to Make Effective Disclosures](https://www.thetmca.com/the-latest-influencer-advertising-tips-from-the-ftc-when-how-where-to-make-effective-disclosures/) - As we blogged about earlier this month, the FTC seems to have spent much of its summer checking out influencer advertising and focusing its attention on those who fail to make the necessary disclosures of material connections to the products and services they endorse. This resulted in the first-ever complaint against an individual influencer and
- [Booking it to the District Court](https://www.thetmca.com/booking-it-to-the-district-court/) - A recent decision out of the federal district court for the Eastern District of Virginia overturned in part the Trademark Trial and Appeal Board’s decision that the mark “Booking.com” is not registrable on the basis that the mark is generic. Judge Brinkema presided over the case, and she determined that the mark BOOKING.COM had acquired
- [Dr. Phil and His Texas-Sized Copyright Victory in the Lone Star State: Is This "EDTX 2.0" After TC Heartland?](https://www.thetmca.com/dr-phil-and-his-texas-sized-copyright-victory-in-the-lone-star-state-is-this-edtx-2-0-after-tc-heartland/) - And just like that, it was over. The U.S. Supreme Court’s decision in TC Heartland v. Kraft Foods Group sun-setted the reign of the U.S. District Court for the Eastern District of Texas as the country’s busiest (and arguably, friendliest) venue for patent plaintiffs. But rumors of that district’s demise as a haven for IP holders
- [The FTC Throws Shade at Influencer Bruhs Who Failed to Disclose Material Connections](https://www.thetmca.com/the-ftc-throws-shade-at-influencer-bruhs-who-failed-to-disclose-material-connections/) - We blogged last week about the FTC's triple play against deceptive influencer advertising. In one prong of the initiative, the FTC announced that its staff had sent 21 follow-up warning letters to influencers, asking them to respond to the agency as to whether the influencers had material connections to the products or companies featured in
- [Dear Influencers: It’s the FTC, Again - FTC Issues 21 Follow-up Warning Letters](https://www.thetmca.com/dear-influencers-its-the-ftc-again-ftc-issues-21-follow-up-warning-letters/) - Back in the Spring, we posted about a set of 90 warning letters the FTC sent to influencers and brands about the disclosure of material connections on Instagram. While you may have spent your summer trying to unplug, the FTC staff was busy perusing Instagram. Just yesterday, the FTC announced that the staff sent another
- [Star Athletica Leaves Parties Weeping in Copyright Dispute over Tear Drop Design](https://www.thetmca.com/star-athletica-leaves-parties-weeping-in-copyright-dispute-over-tear-drop-design/) - In Star Athletica v. Varsity Brands, the U.S. Supreme Court clarified the proper test for determining when a useful article is subject to copyright protection. That new standard was recently brought to bear in JetMax Limited v. Big Lots, Inc., a copyright dispute over a “tear drop” light design. Neither party is exactly cheering about
- [The Broad Umbrella Covering Joint Authors Also Protects Collaborators](https://www.thetmca.com/the-broad-umbrella-covering-joint-authors-also-protects-collaborators/) - A recent decision from the federal court of the Southern District of New York serves as a reminder of the broad rights enjoyed by a joint author under the Copyright Act, including the right to create and license derivative works without the knowledge or consent of the other joint authors. Authored by Judge Kimba Wood,
- [Plaintiff in Gridiron Battle Over Place of Expert Testimony in Software Copyright Claim Requests Supreme Court to Be Referee](https://www.thetmca.com/plaintiff-in-gridiron-battle-over-place-of-expert-testimony-in-software-copyright-claim-requests-supreme-court-to-be-referee/) - The software engineer who first coded the popular “John Madden Football” (now Madden NFL) computer video game has asked the U.S. Supreme Court to allow expert witness testimony to support his software copyright claim, over 25 years after the original work was completed and published. This lengthy stoppage in play resulted in a problem of
- [The Earnhardts’ Race To the Courtroom: Who Will Get The Checkered Flag?](https://www.thetmca.com/the-earnhardts-race-to-the-courtroom-who-will-get-the-checkered-flag/) - On July 27, 2017, the Federal Circuit decided Earnhardt v. Earnhardt, a trademark collision between two relatives of the famous race car driver, Dale Earnhardt. The case involved an appeal from a TTAB decision between Teresa Earnhardt, widow of Dale Earnhardt, who holds a portfolio of “Dale Earnhardt” and “Earnhardt” marks, and her stepson Kerry
- [Bringing Back the Oldies – Legislation for Equal Treatment in the Music Industry](https://www.thetmca.com/bringing-back-the-oldies-legislation-for-equal-treatment-in-the-music-industry/) - On July 19, 2017, the CLASSICS Act (H.R. 3301 - Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act) was introduced into the House, the purpose of which is to provide copyright protection for sound recordings fixed before February 15, 1972. The bill is widely supported by stakeholders in the music
- [Much Ado About Shoe Designs – Favorable Rulings for Adidas on Summary Judgment in Skechers Trademark Dispute](https://www.thetmca.com/much-ado-about-shoe-designs-favorable-rulings-for-adidas-on-summary-judgment-in-skechers-trademark-dispute/) - On August 3, 2017, the shoe manufacturer Adidas scored important legal victories in its long-running trademark dispute with the shoemaker Skechers. Adidas America, Inc. et al. v. Skechers USA, Inc. (D. Or. 2017) involved trademark infringement allegations by Adidas related to its iconic three-stripe logo, the trade dress of its “Stan Smith” shoe design and
- [Don’t Get Berned – An Important Limitation on Enforcement of Foreign Copyrights Under U.S. Law](https://www.thetmca.com/dont-get-berned-an-important-limitation-on-enforcement-of-foreign-copyrights-under-u-s-law/) - Since March 1, 1989, the United States has been a member of an international copyright treaty named the Berne Convention (formally called the “International Union for the Protection of Literary and Artistic Works”). This treaty was established on September 8, 1886 in, of course, Berne, Switzerland. The World Intellectual Property Organization, located in Geneva, Switzerland,
- [Who Owns that Trademark? An Incomplete Answer Voids Application](https://www.thetmca.com/who-owns-that-trademark-an-incomplete-answer-voids-application/) - A recent Trademark Trial and Appeal Board decision sustained an opposition based on the applicant’s failure to identify a co-owner at the time the application was filed, resulting in the application being declared void ab initio. Pynk Branded, LLC v. BleuLife Media & Entertainment, Inc. (TTAB July 14, 2017) (non-precedential). The principals of opposer Pynk Branded
- [Keeping Up With The Kopyrights](https://www.thetmca.com/keeping-up-with-the-kopyrights/) - Kendall and Kylie Jenner are beefing with the late Tupac Shakur. The Jenners are not singers or rappers (yet), but they do have a fashion line, the "Kendall + Kylie" brand. The famous sisters’ company used images of the late rapper on t-shirts. However, the images they used were from photographs taken by Michael Miller
- [Graffiti Artists Tag Camuto Fashion House for Copyright Infringement](https://www.thetmca.com/graffiti-artists-tag-camuto-fashion-house-for-copyright-infringement/) - Earlier this month, four Los Angeles-based graffiti artists, “Rime,” “Host18,” “Taboo” and “Reme” filed suit against the Vince Camuto fashion house and related entities alleging copyright infringement for “inexplicably featur[ing] Plaintiffs’ murals” as “the centerpiece of a marketing campaign for their Spring/Summer 2017 line [ ] without Plaintiffs’ knowledge or consent.” According to the complaint, Camuto launched the
- [Tea Rose, Swiss Cheese and Slam Dunk Evidence of Infringement – The 9th Circuit Weighs in on Remote Geographic Trademark Users](https://www.thetmca.com/tea-rose-swiss-cheese-and-slam-dunk-evidence-of-infringement-the-9th-circuit-weighs-in-on-remote-geographic-trademark-users/) - When two different companies adopt confusingly similar trademarks and use them in different parts of the United States, complications ensue. The adjudication of the respective rights of the parties will depend on the geographic extent to which the marks have become known to customers and will also be affected by whether and when either or
- [Second Circuit Holds Pro-Union Sentiment Outweighs Impropriety of Profanity-Laden Rant Against Supervisor, His Mother, and “His Entire ****ing Family”](https://www.thetmca.com/second-circuit-holds-pro-union-sentiment-outweighs-impropriety-of-profanity-laden-rant-against-supervisor-his-mother-and-his-entire-ing-family/) - Use of profanity by employees, whether in the workplace, outside the workplace, or on social media, presents difficult legal issues for the employer, as highlighted by a recent Second Circuit Court of Appeals decision overturning the firing of an employee who engaged in a highly profane Facebook rant against a supervisor. Although an employer has
- [Launched July 8, 2017:  New USPTO Rules to Clear “Deadwood” in the Federal Trademark Registry](https://www.thetmca.com/launched-july-8-2017-new-uspto-rules-to-clear-deadwood-in-the-federal-trademark-registry/) - With the latest rule changes having taken effect July 8, 2017, the United States Patent and Trademark Office continues its efforts to clear deadwood from the federal trademark register. Earlier this year, we reported on the PTO’s finalization of a rule allowing it to require trademark owners to provide multiple specimens of use per class in
- [Master of Your Domain – ACPA Damages Sought by Greg LeMond](https://www.thetmca.com/master-of-your-domain-acpa-damages-sought-by-greg-lemond/) - You might want to think twice before registering a domain name containing a competitor’s personal name or trademark. Three-time Tour de France winner Greg LeMond put his “pedal to the metal” recently, suing two Minnesota businessmen under the Anticybersquatting Consumer Protection Act (“ACPA”). LeMond is seeking $6.6 million in damages and a permanent injunction for
- [Use in commerce for federal trademark registration: the Federal Circuit slowly moves towards the Supreme Court](https://www.thetmca.com/use-in-commerce-for-federal-trademark-registration-the-federal-circuit-slowly-moves-towards-the-supreme-court/) - Is there any use of a trademark within the United States that is insufficient to support federal trademark registration? The federal trademark laws are based on the Commerce Clause of the United States Constitution, and trademark registrations granted under Section 1 of the Trademark Act require use in “commerce that can be regulated by Commerce.”
- [KISS That Trademark Application Goodbye](https://www.thetmca.com/kiss-that-trademark-application-goodbye/) - We recently provided some commentary on Gene Simmons and his application to register the “devil horns” rock and roll hand symbol. Well, you can now KISS that application goodbye, as Mr. Simmons has expressly abandoned his federal trademark application. No details on the reason for the abandonment were included in the filing with the USPTO,
- [USPTO Proposes Streamlined Cancellation Procedures](https://www.thetmca.com/uspto-proposes-streamlined-cancellation-procedures/) - In its latest effort to clear deadwood from the Trademark Register, the United States Patent and Trademark Office (“PTO”) has issued a Notice of Proposed Rulemaking that proposes an expedited version of a cancellation proceeding known as a “Streamlined Proceeding.” As described below, the proceedings have the potential for substantial savings to practitioners and trademark
- [How Much Fame Is Enough?](https://www.thetmca.com/how-much-fame-is-enough/) - In its recent decision in Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, the Court of Appeals for the Federal Circuit clarified the proper interpretation of the fame of the mark factor in determining whether there is a likelihood of confusion under the long-established multifactor test set forth in Application of E. I. DuPont DeNemours
- [Fair Use on The Loose For The Great Dr. Seuss!](https://www.thetmca.com/fair-use-on-the-loose-for-the-great-dr-seuss/) - You may remember, you may recall, A certain infringement suit filed last fall. It was filed by the heirs of the great Dr. Seuss, And now they've run smack dab into the doctrine of fair use. Let me tell you what happened, it's a tale worth telling, For the defendant
- [THE DEVIL MADE ME DO IT](https://www.thetmca.com/the-devil-made-me-do-it/) - On June 9, 2017, Gene Simmons of Kiss rock band fame applied with the United States Patent and Trademark Office (“PTO”) to register the following mark for “Entertainment, namely, live performances by a musical artist; personal appearances by a musical artist” in Class 41: Simmons describes the mark thusly: “The mark
- [The Federal Circuit Grapples With a Messy Breakup and Trademark Ownership](https://www.thetmca.com/the-federal-circuit-grapples-with-a-messy-breakup-and-trademark-ownership/) - Last week, the U.S. Court of Appeals for the Federal Circuit provided important guidance on the standard applicable to resolving disputes over the rightful ownership of a trademark where the mark has been used by a group of individuals in an organization and there is no agreement designating ownership. In its decision, the Federal Circuit
- [Endorsement Disclosures on the Front Burner Again at the FTC](https://www.thetmca.com/endorsement-disclosures-on-the-front-burner-again-at-the-ftc/) - Last week, the FTC announced a Complaint and proposed settlement with two trampoline sellers, brothers Sonny and Bobby Le. The Les sold Infinity and Olympus Pro brand trampolines through three websites that touted endorsements of these two brands, while criticizing the qualities of competitive products. The endorsements were conveyed through the use of the Trampoline
- [P. Diddy on Instagram – No Free Pass on Copyright Law](https://www.thetmca.com/p-diddy-on-instagram-no-free-pass-on-copyright-law/) - As Biggie said “Mo Money Mo Problems” – Last month, a New York-based photojournalist filed suit again Diddy’s record label, Bad Boy Records, for posting a photo of none other than P. Diddy himself on his own Instagram account. Social media is supposed to about sharing (and sometimes over-sharing), but that doesn’t mean the laws
- [The Supreme Court Rolled Back Patent Venue -- What Will Happen Now for Copyright?](https://www.thetmca.com/the-supreme-court-rolled-back-patent-venue-what-will-happen-now-for-copyright/) - The Supreme Court recently sounded the death knell for patent litigation in the Eastern District of Texas, overruling the Federal Circuit’s interpretation of 28 U.S.C. § 1400(b) and dramatically reducing forum shopping in patent cases. In TC Heartland LLC v. Kraft Foods Group Brands LLC, the Supreme Court overturned nearly thirty years of Federal Circuit
- [The Artist Formerly Known As…Warhol](https://www.thetmca.com/the-artist-formerly-known-aswarhol/) - Lynn Goldsmith is a professional photographer who rose to fame in the 1970’s for her portrait photography, especially for her work with musicians and other entertainers. Her work has appeared on over 100 album covers. In 1981, Goldsmith took this publicity photo of Prince: In 1984, Goldsmith
- [Got Registration? You Better if You're Filing a Copyright Case in the 11th Circuit](https://www.thetmca.com/got-registration-you-better-if-youre-filing-a-copyright-case-in-the-11th-circuit/) - Section 411(a) of the Copyright Act provides, in pertinent part, that "no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title." For many years, this provision has spawned a debate throughout the federal
- [Supreme Court Bolsters Patent Exhaustion Doctrine, Patent Laws Cannot Be Used Against Resellers](https://www.thetmca.com/supreme-court-bolsters-patent-exhaustion-doctrine-patent-laws-cannot-be-used-against-resellers/) - The Supreme Court ruled yesterday that Lexmark’s decision to sell its patented printer ink cartridge exhausted all of its patent rights in that cartridge, regardless of any contractual restrictions Lexmark attempted to impose on the purchaser’s use and resale of that cartridge and regardless of whether the sale was domestic or international. Lexmark makes and
- [Public Use of “Googling” Does Not Genericize Trademark](https://www.thetmca.com/public-use-of-googling-does-not-genericize-trademark/) - When faced with a random (but very important) question, how often is our response: “I’ll google it”? Using google as a verb, similar to the above question, was at the center of a recent decision by the U.S. Court of Appeals for the Ninth Circuit in David Elliott v. Google, Inc. The appellate court affirmed
- [The FTC Gets Specific on Influencer Material Connection Disclosures](https://www.thetmca.com/the-ftc-gets-specific-on-influencer-material-connection-disclosures/) - A few weeks ago we blogged about the FTC’s warning letter writing campaign to brands and influencers about disclosure of material connections on Instagram. At that time, the FTC had only released sample letters – one for celebrities, athletes and other influencers and another for marketers. This week, the FTC released copies of the 90
- [Locked Out:  Zillow’s Failure to Provide Insurer Timely Notice of DMCA Takedown Notice Precludes Coverage Under a Claims-Made Policy](https://www.thetmca.com/locked-out-zillows-failure-to-provide-insurer-timely-notice-of-dmca-takedown-notice-precludes-coverage-under-a-claims-made-policy/) - Last month the United States District Court for the Western District of Washington held that a Digital Millennium Copyright Act (“DMCA”) Takedown Notice triggered a policyholder’s obligation to notify its claims-made insurer. The case, National Union Fire Insurance Co. v. Zillow, Inc., occupies a unique position at the intersection of copyright and insurance law. The
- [You Can’t Fake Confusion:  A Lanham Act Lesson in Consumer Survey Design](https://www.thetmca.com/you-cant-fake-confusion-a-lanham-act-lesson-in-consumer-survey-design/) - In Phelan Holdings, Inc. v. Rare Hospitality Management, Inc., a federal court in the Middle District of Florida recently held that consumers were unlikely to be completely at sea when distinguishing between two trademarks for casual dining restaurants that begin with the phrase “You Can’t Fake.” The plaintiff, Phelan Holdings, uses the catchphrase “You Can’t
- [Fearless Girl Must Stay](https://www.thetmca.com/fearless-girl-must-stay/) - We teach girls to shrink themselves To make themselves smaller We say to girls "You can have ambition But not too much You should aim to be successful But not too successful Otherwise you will threaten the man" - Chimamanda Ngozi Adichie In honor of International Women’s Day, State Street Global Advisors installed a statue
- [No Marijuana in Margaritaville: TTAB Rejects Proposed “Marijuanaville” Mark](https://www.thetmca.com/no-marijuana-in-margaritaville-ttab-rejects-proposed-marijuanaville-mark/) - A recent decision in an opposition proceeding before the TTAB demonstrates that the leisure industry is sometimes anything but laid back. Rights holders who may be wasting away in paradise can be roused to action when their valuable trademarks are being threatened. Rachel Bevis, a resident of Colorado looking to capitalize on her state's legalization
- [Who Owns That Trademark – The Manufacturer or the Exclusive Distributor?](https://www.thetmca.com/who-owns-that-trademark-the-manufacturer-or-the-exclusive-distributor/) - The Court of Appeals for the Third Circuit, with a ringing endorsement of Prof. McCarthy’s trademark law treatise, issued a precedential opinion last week on the issue of whether a trademark is owned by the manufacturer or its exclusive distributor when there is no written agreement governing the issue. Covertech Fabricating, Inc. v. TVM Building
- [Advertising Standards Authority Rules That Instagram Post Contained Inadequate Disclosure](https://www.thetmca.com/advertising-standards-authority-rules-that-instagram-post-contained-inadequate-disclosure/) - A recent ruling of the Advertising Standards Authority (ASA) in the U.K. highlights the global crackdown on sponsored posts that do not make clear that they are advertising. A complaint was filed with the ASA about an Instagram post made by a popular make-up blogger Sheikhbeauty, which consisted of a mini video that promoted the
- [Dear Influencers: #FullDisclosure we use Instagram too. Love, The FTC - Warning letters provide guidance to influencers, celebrities and brand owners](https://www.thetmca.com/dear-influencers-fulldisclosure-we-use-instagram-too-love-the-ftc-warning-letters-provide-guidance-to-influencers-celebrities-and-brand-owners/) - Instagram is now home to more than 600 million users, including many popular brands, celebrities, online influencers, famous dogs, regular people and regular dogs (full disclosure this regular dog is mine). As its popularity has grown, especially with advertisers, regulators are taking a closer look to ensure that brands and their hired hands are complying
- [Court Finds Copyright DJ Action against Music Rights Holder Slightly Out of Tune](https://www.thetmca.com/court-finds-copyright-dj-action-against-music-rights-holder-slightly-out-of-tune/) - Does a demand letter from a music rights holder that alleges “millions of instances of infringement” create a case in controversy with the recipient? You may be inclined to answer with an emphatic “of course!” But think again, or so says a recent ruling by the U.S. District Court for the Southern District of New
- [What do Raging Bull and Adult Diapers Have in Common?](https://www.thetmca.com/what-do-raging-bull-and-adult-diapers-have-in-common/) - Apparently, quite a bit according to the Supreme Court. The Supreme Court has dipped its toe into the waters of intellectual property law again and has decided to overturn 150 years or more of common law precedent in its decision in SCA Hygiene last week. SCA Hygiene held a patent on an adult diaper design
- [Sis Boom Bah – Supreme Court Extends Copyright Protection to Cheerleading Uniform Designs](https://www.thetmca.com/sis-boom-bah-supreme-court-extends-copyright-protection-to-cheerleading-uniform-designs/) - In a decision announced today, the Supreme Court held that Varsity Brands is entitled to assert copyright protection in two-dimensional designs featured on its cheerleading uniforms. These designs consist of various lines, chevrons, and colorful shapes. Varsity Brands had sued Star Athletica for copyright infringement, alleging that Star’s uniform designs were substantially similar to Varsity
- [Lanham Act Lesson: Dropbox Drop Kicks Opponent and Scores Attorneys' Fees Award](https://www.thetmca.com/lanham-act-lesson-dropbox-drop-kicks-opponent-and-scores-attorneys-fees-award/) - As the sun set on 2016, the 9th Circuit Court of Appeals in Sunearth, Inc. v. Sun Earth Solar Power, Co. embraced a new standard for awarding attorneys' fees in Lanham Act cases. Adopting the U.S. Supreme Court's rationale in Octane Fitness, the 9th Circuit held that an exceptional case no longer required “malicious, fraudulent, deliberate
- [FedEx Can Keep On Copying for Creative Commons Licensee](https://www.thetmca.com/fedex-can-keep-on-copying-for-creative-commons-licensee/) - Fed Ex Office and Print Services recently scored a victory in Great Minds v. FedEx Office and Print Services, Inc., securing dismissal of a copyright infringement action based on the copying of educational materials for school districts. The case provides a useful reminder about the extent to which licensees with broad grants can utilize third
- [Bankruptcy Dispute Regarding “Coolcore” Trademark Heats Up in the First Circuit](https://www.thetmca.com/bankruptcy-dispute-regarding-coolcore-trademark-heats-up-in-the-first-circuit/) - In December 2015, the TMCA blogged about a decision in In re Tempnology, LLC, in which the Bankruptcy Court for the District of New Hampshire held that a debtor’s rejection of a licensing agreement in bankruptcy terminated the licensee’s rights to continue using the “Coolcore” brand for chemical-free cooling fabrics. Back then, we noted
- [The Five Year Divide: Limited Recourse to Cancel Registrations, Even Those Void Ab Initio](https://www.thetmca.com/the-five-year-divide-limited-recourse-to-cancel-registrations-even-those-void-ab-initio/) - The Sixth Circuit recently issued an opinion in NetJets Inc. v. IntelliJet Group, LLC Inc. (unpublished), holding that where a trademark registration is incontestable, it may not be cancelled on the ground that it was void ab initio due to failure to use the mark in commerce at the time of registration. NetJets is a
- [Lack of Bona Fide Intent to Use and Its Consequences According to the 6th Circuit](https://www.thetmca.com/lack-of-bona-fide-intent-to-use-and-its-consequences-according-to-the-6th-circuit/) - The Sixth Circuit Court of Appeals recently issued an important decision about the bona fide intent requirement when filing an intent to use (“ITU”) application and the consequences when there is a lack of bona fide intent as to some, but not all, of the goods or services identified in an application. While the issue
- [Improper Assignment of THE EMERALD CITY Mark – Registration Cancelled in Toto](https://www.thetmca.com/improper-assignment-of-the-emerald-city-mark-registration-cancelled-in-toto/) - Assignment of an intent-to-use trademark application can be fraught with risk. To deter “trafficking” in ITU applications, Section 10 of the Lanham Act prohibits the assignment of an ITU application before an amendment to allege use has been filed unless the assignment is to a successor to all or a portion of the business of
- [A March to Madness:  Can the NCAA Claim Ownership of the Third Month of the Year?](https://www.thetmca.com/a-march-to-madness-can-the-ncaa-claim-ownership-of-the-third-month-of-the-year/) - The NCAA has a well-deserved reputation for being quite zealous when it comes to protecting its registered trademark “March Madness.” We previously blogged about this here at TheTMCA.com. But a recent opposition filed by the NCAA at the TTAB takes “zealous advocacy” to new heights. About a year ago, the Big Ten Conference filed an
- [Frozen Until March 21: The USPTO’s New Evidence Requirements to Clear “Deadwood” From The Federal Trademark Register](https://www.thetmca.com/frozen-until-march-21-the-usptos-new-evidence-requirements-to-clear-deadwood-from-the-federal-trademark-register/) - President Trump’s deep freeze of regulatory actions has delayed the effective date of new rules issued by the United States Patent and Trademark Office (USPTO) to assess and promote the accuracy of the trademark register. Marks that receive federal protection but are not actually used in commerce are known as “deadwood.” Having an accurate and
- [Crossing the Line - Two More NAD Decisions on Unsubstantiated Comparative Line Claims](https://www.thetmca.com/crossing-the-line-two-more-nad-decisions-on-unsubstantiated-comparative-line-claims/) - Comparative advertising can be highly effective in touting the advantages of a company’s products against those of its competitor, but the language used must be carefully crafted and accompanying visual depictions should be examined to determine if they convey an unintended message about the scope of the ad claim. Two recent decisions by the National
- [A Trademark By Any Other Name…](https://www.thetmca.com/a-trademark-by-any-other-name/) - The Lanham Act prohibits registration on the Principal Register of a mark that is “primarily merely a surname” unless an applicant can show that the mark has acquired secondary meaning such that consumers perceive the surname as an identifier of source. 15 U.S.C. § 1052(e)(4). Alternatively, a surname mark can be registered on the Supplemental Register,
- [German Copyright Law Sets Limitations on Exclusive Licenses](https://www.thetmca.com/german-copyright-law-sets-limitations-on-exclusive-licenses/) - Authors and creators in Germany are given a leg up in dealing with the copyright industry and their publishers. The new rules introduced into German copyright law late last year focus on “full buy-out’ contracts where rights are granted to the publisher exclusively in consideration of a one-off lump sum payment (with no running royalties
- [Of Klingons and Copyrights: Trekkie Fan Film Hits Fair Use Flameout](https://www.thetmca.com/of-klingons-and-copyrights-trekkie-fan-film-hits-fair-use-flameout/) - A Star-Trek fan-film is boldly headed to a jury trial to determine whether Axanar Productions—the company behind the fan-film—is liable for copyright infringement. Paramount Pictures and CBS Studios sued Axanar Productions in December 2015 after it created a 20 minute fan-film that was based in the Star Trek universe, and to stop the company's planned
- [Copyrighting a Dream](https://www.thetmca.com/copyrighting-a-dream/) - This week we celebrated the life and legacy of Dr. Martin Luther King, Jr. Dr. King’s mission was to teach our nation the value of tolerance and mutual respect regardless of each person’s differences. These lessons still ring true today as they did 50 years ago. Dr. King’s words, including the famous and aspirational “I
- [Could the EU Unified Patent Court Start Working in December 2017?](https://www.thetmca.com/could-the-eu-unified-patent-court-start-working-in-december-2017/) - The Preparatory Committee charged with the implementation of the Unified Patent Court (“UPC”) announced on 16 January 2017 that it anticipates that the UPC agreement would come into force in December 2017, at which point it is assumed the court will open for business. The announcement coincides with a speech by Theresa May, the British
- [Another IP Lesson from Bikini Bottom:  What "The Krusty Krab" Teaches Us About Trademark Protection for Fictional Places](https://www.thetmca.com/another-ip-lesson-from-bikini-bottom-what-the-krusty-krab-teaches-us-about-trademark-protection-for-fictional-places/) - In a previous post we discussed what SpongeBob SquarePants can teach us about trademark licensing. Now, more IP lessons are bubbling up from the fathoms below thanks to our absorbent, yellow and porous friend. This time, we learn about how fictional places—such as the famed underwater greasy spoon, “The Krusty Krab”—can be protected under the
- [Change is Coming: New Rules for TTAB Opposition and Cancellation Proceedings](https://www.thetmca.com/change-is-coming-new-rules-for-ttab-opposition-and-cancellation-proceedings/) - The United States Patent and Trademark Office recently issued final rules amending the Trademark Trial and Appeal Board Rules of Practice and raising fees for many transactions involving trademarks. The new rules and fees will take effect on January 14, 2017, and will apply to all proceedings filed on or after that date and, to
- [Phish Snared in Trademark Office’s Net Due to Phan Products](https://www.thetmca.com/phish-snared-in-trademark-offices-net-due-to-phan-products/) - Ask any fan of the American improvisatory rock band Phish to explain the significance of the following pattern and you will invariably receive the same answer: It’s of course the pattern of drummer Jon Fishman’s iconic dress, which he has worn during nearly all of the band’s 1,700-plus shows. But the
- [The Second Circuit Gets the Joke – Affirms Dismissal of Trademark Parody Lawsuit](https://www.thetmca.com/the-second-circuit-gets-the-joke-affirms-dismissal-of-trademark-parody-lawsuit/) - Last January, we blogged about a district court decision involving trademark parody in Louis Vuitton Malletier, S.A. v. My Other Bag, Inc. In that decision, the court held that defendant My Other Bag had convincingly argued that its products, shown below, were a parody of Louis Vuitton’s iconic handbag and, as such, did not violate
- [Usher’s Still in the Clear in Copyright Suit](https://www.thetmca.com/ushers-still-in-the-clear-in-copyright-suit/) - The Third Circuit Court of Appeals recently affirmed the dismissal on summary judgment of copyright infringement claims brought by Daniel Marino (not that Dan Marino) against Usher and nineteen other defendants in Marino v. Usher. The decision underscores the bedrock principle that joint authors cannot sue their co-authors for copyright infringement and serves as a cautionary
- [Will forum shopping days, like holiday shopping days, soon come to an end?](https://www.thetmca.com/will-forum-shopping-days-like-holiday-shopping-days-soon-come-to-an-end/) - It’s no secret that plaintiffs bringing patent litigation choose the forum carefully. Though the appellate review of patent litigation is centralized in one appellate court with limited jurisdiction – the Court of Appeals for the Federal Circuit – patent litigations proceed in district courts of general jurisdiction throughout the nation. There is a remarkable concentration
- [Dear Fashion Santa, Let Me Explain…](https://www.thetmca.com/dear-fashion-santa-let-me-explain/) - We only want one thing for Christmas this year: clear and unambiguous terms for ownership of intellectual property. We know you’ll understand after the year you’ve been having. #FashionSanta was the social media sensation of the 2015 holiday season. Children and adults alike (including Canada’s own Justin Bieber) lined up for selfies with the sexy
- [Dropbox Gets “Thru” on Summary Judgment With Successful Laches Defense](https://www.thetmca.com/dropbox-gets-thru-on-summary-judgment-with-successful-laches-defense/) - “The Ninth Circuit has stated that laches is seldom susceptible of resolution by summary judgment,” but the federal district court for the Northern District of California recently held just that in Dropbox Inc. v. Thru Inc. Thru Inc. is a software company offering file management software, which first began using the designation “Dropbox” in 2004.
- [Friends, Family and High Blood Pressure - FTC Takes Action Against Undisclosed Family Reviews and Unsubstantiated Claims for Mobile Health App](https://www.thetmca.com/friends-family-and-high-blood-pressure-ftc-takes-action-against-undisclosed-family-reviews-and-unsubstantiated-claims-for-mobile-health-app/) - In previous posts, we’ve discussed the Federal Trade Commission's significant enforcement efforts focused on two hot button issues: unsubstantiated health marketing claims and deceptive product endorsements. Once again, both came together in a Complaint and Settlement announced by the agency on December 12, 2016. The target of the enforcement action was Aura Labs, Inc., which
- [China Adopts Tough and Sweeping Cybersecurity Law](https://www.thetmca.com/china-adopts-tough-and-sweeping-cybersecurity-law/) - On November 7, 2016, the Standing Committee of China’s National People’s Congress promulgated the Cybersecurity Law of the People’s Republic of China, a law James Zimmerman, chairman of the American Chamber of Commerce in China calls “a step backwards for innovation in China that won’t do much to improve security.” The law becomes effective on
- [Sound Marks in China](https://www.thetmca.com/sound-marks-in-china/) - A sound mark can be registered in China since May 1, 2014. According to a draft Standard of Examination issued by the Chinese Trademark Office, a sound mark can consist of a musical or non-musical sound, or a combination of both. Non-musical sound includes natural sound, human and animal voice. The first sound mark application
- [Comparative Advertising Do's and Don'ts from the NAD - Part 2](https://www.thetmca.com/comparative-advertising-dos-and-donts-from-the-nad-part-2/) - Last week we blogged about a recent decision of the National Advertising Division of the Better Business Bureau, holding that two YouTube videos for Rayovac brand batteries misleadingly communicated an unsupported "line" claim of superiority against all Energizer batteries. This post will discuss a second decision issued by NAD a few days later, also finding
- [Unexpected Post-Brexit IP Development: UK is to ratify the Unified Patent Court Agreement](https://www.thetmca.com/unexpected-post-brexit-ip-development-uk-is-to-ratify-the-unified-patent-court-agreement/) - On 28 November 2016, the UK Government made a surprising announcement at the meeting of the Competitiveness Council (an EU institution), stating that it intends to ratify the Unified Patent Court Agreement, marking its first commitment to a new EU initiative since the Brexit referendum in June. In a press release the UK Government stated
- [Comparative Advertising Do's and Don'ts from the NAD - Part 1](https://www.thetmca.com/comparative-advertising-dos-and-donts-from-the-nad-part-1/) - Two recent decisions of the National Advertising Division of the Better Business Bureau provide helpful insights into how product performance comparisons should (and should not) be crafted to be considered fair comparative advertising against competitors. The first decision, Spectrum Brands, Inc. (Case #6012 Oct. 26, 2016), involved a challenge by Energizer Holdings (of Energizer Bunny
- [Dr. Seuss Sues in Sue-ville This Holiday Season](https://www.thetmca.com/dr-seuss-sues-in-sue-ville-this-holiday-season/) - You know Green Eggs and Ham, and the Cat in The Hat, Horton, the Lorax, and others like that. But a new book is coming, although now a bit slow, It’s called “Oh, The Places You’ll Boldly Go!” Sure it sounds like the book already penned by Doc Seuss, But
- [Rubik’s Cube Shape Mark Falls on Functionality in the EU](https://www.thetmca.com/rubiks-cube-shape-mark-falls-on-functionality-in-the-eu/) - A trademark registration for the shape of a product (usually in the form of a drawing or 3D illustration) can be useful, particularly where the product is recognised predominantly by its distinctive visual appearance. However, if that shape or appearance is also essential for achieving a practical function, the exclusivity secured by the registration could
- [FDA Guidance on Evaporated Cane Juice Not So Sweet for Class-Action Defendants](https://www.thetmca.com/fda-guidance-on-evaporated-cane-juice-not-so-sweet-for-class-action-defendants/) - In recent years, a boomlet of litigation – primarily in California – has arisen regarding the product known as “evaporated cane juice” or “ECJ.” The product – made by extracting fluid from crushed sugar cane, clarifying the fluid, evaporating the fluid to create a concentrate, filtering and crystallizing the concentrate, and then separating out the
- [Ninth Circuit Finds “Gem-Shaped” USB Flash Drive Potentially Protectable Under the Copyright Act](https://www.thetmca.com/ninth-circuit-finds-gem-shaped-usb-flash-drive-potentially-protectable-under-the-copyright-act/) - The Sims is a popular series of video games in which players create virtual people called “Sims,” design these virtual peoples’ homes and neighborhoods, and help them navigate their in-game relationships, careers, and social lives. When a player controls a specific character, a green, gem-shaped icon called a “PlumbBob” appears over the character’s head. EA
- [“Meandering Evening Stroll” Helps Defeat Preliminary Injunction Motion Against AMAZON FIRE TV](https://www.thetmca.com/meandering-evening-stroll-helps-defeat-preliminary-injunction-motion-against-amazon-fire-tv/) - A recent decision by the United States Court of Appeals for the 11th Circuit highlights the perils of delay in filing a motion for a preliminary injunction in a trademark infringement case. In Wreal, LLC v. Amazon.com, Inc. (11th Cir. Oct. 28, 2016), the appellate court affirmed the denial of preliminary injunctive relief because the plaintiff “pursued
- [New Copyright Office Electronic Registration System for DMCA Agents – Are You Ready?](https://www.thetmca.com/new-copyright-office-electronic-registration-system-for-dmca-agents-are-you-ready/) - The Digital Millennium Copyright Act (DMCA) sets forth a mechanism through which online service providers can avail themselves of a safe harbor from copyright infringement liability by recording an agent with the Copyright Office and following notice and takedown procedures. 17 U.S.C. 512. The agent’s information must not only appear in the Copyright Office’s records,
- [The 9th Circuit Injects Some “Octane” into the Lanham Act Attorneys’ Fee Provision](https://www.thetmca.com/the-9th-circuit-injects-some-octane-into-the-lanham-act-attorneys-fee-provision/) - In the immortal words of the most recent Nobel Laureate in literature, “the times they are a changin.’” Section 35(a) of the Lanham Act provides that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” Until just last week, the Ninth Circuit had historically interpreted that provision to mean that
- [New Questions Raised by Judge Rakoff: Misuse of the ® Symbol and Literal Falsity Examined](https://www.thetmca.com/new-questions-raised-by-judge-rakoff-misuse-of-the-symbol-and-literal-falsity-examined/) - Judge Rakoff is back at it in Classic Liquor Importers, Ltd. v. Spirits International, B.V. We previously blogged about the dangers inherent in sending a cease and desist letter without the concurrent appetite for litigation, a post that was prompted by Judge Rakoff’s denial of defendant SPI’s motion to dismiss. Most recently, in the same case,
- [Likelihood of “Initial Interest” Confusion Powers The University of Houston to Preliminary Injunction Win in Law School Name Battle](https://www.thetmca.com/likelihood-of-initial-interest-confusion-powers-the-university-of-houston-to-preliminary-injunction-win-in-law-school-name-battle/) - On June 22, 2016, the South Texas College of Law announced that it was changing its name to Houston College of Law. This seems like a natural choice, as the school is based in Houston and is a stand-alone institution not affiliated with a university. But the name change immediately raised the ire of the
- [Is Marriage a “Material Connection”? The FTC Challenges an "Independent" Expert Based on Marital Status](https://www.thetmca.com/is-marriage-a-material-connection-the-ftc-challenges-an-independent-expert-based-on-marital-status/) - Medical endorsements can be powerful selling tools for health care products. But if a medical professional has a connection to the company marketing the products that would be material to consumers in evaluating the credibility of the endorsement, the connection must be disclosed in advertising and promotion. A company that ran afoul of this requirement
- [Supplemental Registrations – Actually Worth a Hill of (Coffee) Beans](https://www.thetmca.com/supplemental-registrations-actually-worth-a-hill-of-coffee-beans/) - The potential defensive value of a registration on the Supplemental Register is highlighted in a recent opinion of the Trademark Trial and Appeal Board, In re Morinaga Nyugyo Kabushiki Kaisha. While we often think of trademarks on the Supplemental Register as less valuable and “junior” in significance, this case reminds us that Supplemental Registrations may bar
- [Trick or Tweet?  Team Trump Gets Sued Over Skittles Twitter Pic](https://www.thetmca.com/trick-or-tweet-team-trump-gets-sued-over-skittles-twitter-pic/) - Life may not be bowl of cherries for Mr. Trump’s presidential campaign these days. It’s more like a bowl of Skittles, as that is exactly what landed Team Trump in a copyright infringement suit filed in Chicago federal court on Tuesday. It all started last month when Donald Trump Jr. tweeted this picture on behalf
- [Naturally Misleading?  Ninth Circuit Keeps “All Natural” Fruit Labeling Dispute Alive](https://www.thetmca.com/naturally-misleading-ninth-circuit-keeps-all-natural-fruit-labeling-dispute-alive/) - Does a food label advertising a product as “all natural fruit” mislead consumers when that product contains artificial preservatives? That is the question presented in Brazil v. Dole Food Co. Inc., which the Court of Appeals for the Ninth Circuit answered with a definitive “maybe.” The Court reversed the district court, sending the plaintiff’s claims
- [A Diamond is Forever. What About Your Advertising Claim?](https://www.thetmca.com/a-diamond-is-forever-what-about-your-advertising-claim/) - An advertising slogan like "A Diamond is Forever" may be eternal, but the same cannot be said about some comparative advertising claims. If a company advertises its product as superior to a competitive product, the ad claim may need to be re-assessed and potentially modified or withdrawn if the competitor upgrades or begins selling a
- [The Slants Set To Rock at the U.S. Supreme Court](https://www.thetmca.com/the-slants-set-to-rock-at-the-u-s-supreme-court/) - Simon Tam and The Slants now have a gig at the biggest judicial venue in the country: The U.S. Supreme Court. On September 29, 2016, the Court decided it will take the case of Lee v. Tam. At issue in the case is whether Mr. Simon Tam is entitled to a federal trademark registration for
- [LVL XIII and Louis Vuitton Go Toe-To-Toe Over Toe Plates](https://www.thetmca.com/lvl-xiii-and-louis-vuitton-go-toe-to-toe-over-toe-plates/) - In a previous post, we discussed Louis Vuitton’s unsuccessful lawsuit against My Other Bag, Inc., in which the “parody defense” was a key issue. Louis Vuitton is making trademark law news again – this time as a defendant/counterclaim plaintiff in a trademark infringement suit in federal court for the Southern District of New York, LVL
- [In What Way is False Advertising False and Why it Makes a Difference](https://www.thetmca.com/in-what-way-is-false-advertising-false-and-why-it-makes-a-difference/) - What is the difference between an advertisement that is literally false by necessary implication and one that is impliedly false? It may seem like a fine (and somewhat opaque) distinction, but determining the particular way in which an advertising message is false can have a significant impact on the evidence required to establish liability for
- [Copyright Claim against Beyoncé Gets Bounced in Scène à faire Tour de Force](https://www.thetmca.com/copyright-claim-against-beyonce-gets-bounced-in-scene-a-faire-tour-de-force/) - R&B sensation Beyoncé can go back to promoting her album Lemonade now that a federal court held that a copyright claim against her was nothing but a lemon. While the decision may seem a bit tart to the plaintiff, it is a solid example of how one cannot squeeze scène à faire into a viable
- [POM Wonderful Returns – Lanham Act False Advertising Claim Against Home Pregnancy Tests Not Precluded by FDCA](https://www.thetmca.com/pom-wonderful-returns-lanham-act-false-advertising-claim-against-home-pregnancy-tests-not-precluded-by-fdca/) - On September 9, 2016, the Court of Appeals for the Second Circuit issued an interesting decision in a false advertising case involving a dispute between competitors in the home pregnancy testing market. Church & Dwight Co. v. SPD Swiss Precision Diagnostics GMBH. The opinion addressed whether the Food, Drug and Cosmetic Act (FDCA) precluded the
- [“The Man Who Brought the Beatles to America” is Bringing Them Back…to a U.S. District Court](https://www.thetmca.com/the-man-who-brought-the-beatles-to-america-is-bringing-them-backto-a-u-s-district-court/) - Sid Bernstein was a legendary promoter and producer of iconic rock-and-roll performers including the Rolling Stones, the Moody Blues and, of course, the Beatles. Bernstein earned his moniker as “The Man Who Brought the Beatles to America” after arranging for the Beatles to play in New York’s Carnegie Hall and Shea Stadium in the 1960’s.
- [Strike a Pose and Say “Trademark”](https://www.thetmca.com/strike-a-pose-and-say-trademark/) - After visiting Rio to experience the Olympic Games a few weeks ago, I still feel like a winner. One athlete who won big in Rio was Usain Bolt, who took home three medals in three Track and Field events during the Games this year. Over the years, Bolt has built an impressive list of accomplishments:
- [EU Court Holds That Hyperlinks Can Infringe Copyright](https://www.thetmca.com/eu-court-holds-that-hyperlinks-can-infringe-copyright/) - In a landmark decision that departs from previous case law, the Court of Justice of the EU, the highest court of the EU, held that a website operator that posts hyperlinks to another site that contains copyright materials posted without the right holder's consent could itself be liable for copyright infringement. The facts of the
- [Trump Hotel False Advertising Suit Against Culinary Workers Union Gets Chopped](https://www.thetmca.com/trump-hotel-false-advertising-suit-against-culinary-workers-union-gets-chopped/) - Section 43(a) of the Lanham Act is generally considered a broad-based vehicle for asserting false advertising claims. For the owner and operator of the Trump Hotel Las Vegas, however, the statutory section was not broad enough to encompass alleged falsehoods in a flyer circulated by a culinary workers union attempting to unionize the Hotel. A
- [Brand Names as Stage Names – Tribute or Infringement?](https://www.thetmca.com/brand-names-as-stage-names-tribute-or-infringement/) - While all the world might be a stage, the famous U.K. fashion house Burberry Limited has now established that none of its players – except Burberry – has the right in the U.S. to use the famous Burberry trademark as a stage name. That’s the upshot of a decision issued by a Manhattan federal court
- [All That Glitters is Not Gold For Led Zeppelin’s Claim For Attorneys’ Fees](https://www.thetmca.com/all-that-glitters-is-not-gold-for-led-zeppelins-claim-for-attorneys-fees/) - Legendary rockers Jimmy Page and Robert Plant are probably still flying high over their defense verdict earlier this summer in the “Stairway to Heaven” copyright infringement trial. They may be slightly coming down, though, after the trial court rejected their claim for recovery of attorneys’ fees. The trial court’s ruling is one of the first to interpret
- [Dancing Baby Waltzes Up to The Biggest Dance Floor in the Land](https://www.thetmca.com/dancing-baby-waltzes-up-to-the-biggest-dance-floor-in-the-land/) - It’s not every day that SCOTUS is asked to review a case involving a video of a dancing baby. But that’s what happened late last week when the lawyers for Stephanie Lenz asked the Court to review the 9th Circuit’s decision in Lenz v. Universal Music Corp. In case you’ve been sleeping like a baby (and
- [Gossip Cop Gets Cuffed For Copyright Infringement](https://www.thetmca.com/gossip-cop-gets-cuffed-for-copyright-infringement/) - The U.S. District Court for the Southern District of New York recently found that Gossip Cop, a website that rates celebrity gossip on a scale of “real” to “rumor,” infringed the copyrights in three photographs of famous celebrities. The Court’s decision is a good reminder about the importance of the “purpose and character of the work”
- [Ed Sheeran Gears up to “Get it On” in Another Copyright Lawsuit](https://www.thetmca.com/ed-sheeran-gears-up-to-get-it-on-in-another-copyright-lawsuit/) - English pop musician Ed Sheeran once again finds himself in the crosshairs of a high-profile copyright infringement lawsuit, this time in the Southern District of New York over alleged similarities between his smash hit “Thinking Out Loud” and Marvin Gaye’s iconic “Let’s Get it On.” We wrote about another recent suit filed against Sheeran for
- [Avoiding the Road to Ruin in Your Road To Rio Marketing Blitz](https://www.thetmca.com/avoiding-the-road-to-ruin-in-your-road-to-rio-marketing-blitz/) - Late last month, the United States Olympic Committee (the “USOC”) sent a few not so nice warning letters to brands that sponsor athletes, but chose not to pay the “golden” price of becoming an “official” sponsor of the games. The USOC warned these brands about the high potential for intellectual property infringement as Olympic fever
- [Court's Reconsideration Gives “Lift” to Dirty Dancing Trademark Dilution Claim](https://www.thetmca.com/courts-reconsideration-gives-lift-to-dirty-dancing-trademark-dilution-claim/) - It’s been almost 30 years since we were introduced to bad boy dance instructor Johnny Castle (Patrick Swayze) and sweet daddy’s girl Frances “Baby” Houseman (Jennifer Grey). This star-crossed duo shimmied their way to stardom in the iconic 1980s movie, Dirty Dancing. You remember the last scene, don’t you? It’s the final night at the
- [UNWANTED BAGGAGE:  ASSET ACQUISITION AND SUCCESSOR LIABILITY](https://www.thetmca.com/unwanted-baggage-asset-acquisition-and-successor-liability/) - If you buy the assets of a company, have you also acquired the liabilities for infringement associated with those assets? That is the issue addressed in a recent decision by the federal district court for the Southern District of New York in Energy Intelligence Group, Inc. et al. vs. Cowen and Company, LLC, No. 14
- [In the Weeds Between Federal and State Law: Brand Name for Legal Marijuana Sales Denied Federal Registration](https://www.thetmca.com/in-the-weeds-between-federal-and-state-law-brand-name-for-legal-marijuana-sales-denied-federal-registration/) - In a precedential opinion, the Trademark Trial and Appeal Board (TTAB) affirmed a USPTO refusal to register the trademark HERBAL ACCESS on the basis the use of the mark in commerce was unlawful under the Controlled Substances Act (“CSA”). Though not unexpected, as the sale of marijuana is a Class 1 Felony under the CSA,
- [Avatar Wins Against Another Copyright Owner… in an Unusual Manner](https://www.thetmca.com/avatar-wins-against-another-copyright-owner-in-an-unusual-manner/) - “When I was lying there in the VA hospital, with a big hole blown through the middle of my life I started having these dreams of flying, I was free. Sooner or later though, you always have to wake up.” - Jake Sully, Avatar. A recent decision from the California Court of Appeal, Fourth Appellate
- [Security Interest v. License Agreement: Low Tech Precautions for the High Tech Investment](https://www.thetmca.com/security-interest-v-license-agreement-low-tech-precautions-for-the-high-tech-investment/) - In this exciting age of startups, the market is brimming with opportunities for individuals and entities alike to invest in emerging companies. Today’s rapid rate of technology development justifies investors’ eagerness to take an interest in innovative companies, hoping to find the next “unicorn.” Notwithstanding the fast pace of the tech industry, it remains important
- [BRAND NAMES AS FALSE ADVERTISING AND OTHER LESSONS ON COMPARATIVE PRODUCT TESTING](https://www.thetmca.com/brand-names-as-false-advertising-and-other-lessons-on-comparative-product-testing/) - In theory, a product brand name can communicate a false advertising message, but it doesn’t happen often in practice. Such an instance was found to have occurred according to a recent decision by the National Advertising Division in which it concluded that the name Painter’s Touch Ultra Cover 2X for a spray paint product marketed
- [Game Over:  Warner Bros. Settles FTC Charges Relating to Video-Based Influencer Campaign](https://www.thetmca.com/game-over-warner-bros-settles-ftc-charges-relating-to-video-based-influencer-campaign/) - Earlier this week, the FTC announced that Warner Brothers entered into a consent order as a result of a complaint charging failure to adequately disclose that the video game publisher paid influencers to promote a new video game called Middle Earth: Shadow of Mordor via YouTube in 2014. The story of Middle Earth: Shadow of
- [Is Music Sampling Back En Vogue?](https://www.thetmca.com/is-music-sampling-back-en-vogue/) - The mere mention of Madonna conjures many images and associations: feminism, reinvention, Kabbala, the cone bra, and her many memorable performances. But today we have yet another thing to associate with the Material Girl: an appellate court split on whether or not music sampling without a license amounts to copyright infringement. By definition, “music sampling”
- [Campaign IP Violations Part 3 – Huckabee’s Campaign Pays Up](https://www.thetmca.com/campaign-ip-violations-part-3-huckabees-campaign-pays-up/) - In December, we told you about Mike Huckabee’s campaign getting sued for copyright infringement for using “Eye of the Tiger” without permission at a rally supporting Kim Davis, the Tennessee clerk that refused to issue marriage licenses. Mr. Huckabee’s campaign settled the lawsuit on confidential terms. But campaign finance disclosure requirements roared back to bite
- [More Guidance for Advertisers and Influencers to Navigate Online Reviews and Endorsements](https://www.thetmca.com/more-helpful-guidance-for-advertisers-and-influencers-to-navigate-online-reviews-and-endorsements/) - Late last week, the International Consumer Protection and Enforcement Network ("ICPEN") published three sets of guidelines covering online reviews and endorsements. Why does this matter? ICPEN is an informal network of consumer protection law enforcement authorities from over 60 jurisdictions, including the US, the UK, and the EU, where authorities share information and seek to
- [Empire State Building Trademark Owner Vanquishes Beer Logo Design](https://www.thetmca.com/empire-state-building-trademark-owner-vanquishes-beer-logo-design/) - Can you trademark a building design? You can if the building in question is the Empire State Building. In the film classic King Kong, the iconic art deco building is the site of a titanic battle between Kong and the military planes that battle to succumb the creature. Now, in a recent non-precedential decision by
- [Practice Update: Publication of Mexican Bill for Trademark Opposition System](https://www.thetmca.com/practice-update-publication-of-mexican-bill-for-trademark-opposition-system/) - The Mexican Senate’s bill establishing a Trademark Opposition System in Mexico was approved by the Chamber of Deputies on April 28, 2016. The bill was approved by the President and will become effective August 30, 2016. The new system establishes a publication protocol by the Mexican Institute of Industrial Property (IMPI) whereby trademark applications will
- [What Brexit Means for EU Trade Marks](https://www.thetmca.com/what-brexit-means-for-eu-trade-marks/) - On 23 June 2016 the United Kingdom electorate took the historic decision in a national referendum that the country should leave the European Union. How will that impact EU trade marks (known until recently as Community trade marks)? Well, no-one really knows yet. The decision to leave the trading block is a big step into
- [Sheeran-nuff: Another Copyright Infringement Suit](https://www.thetmca.com/sheeran-nuff-another-copyright-infringement-suit/) - English pop musician Ed Sheeran has been sued for copyright infringement in the Central District of California over his recent hit song “Photograph,” which peaked at number ten on Billboard’s “The Hot 100” chart. The two songwriter-plaintiffs, Martin Harrington and Thomas Leonard, claim that “Photograph” is “strikingly similar” to their song “Amazing.” Among other forms
- [Led Zeppelin Legends Smackdown “Stairway to Heaven” Copyright Suit](https://www.thetmca.com/led-zeppelin-legends-smackdown-stairway-to-heaven-copyright-suit/) - Led Zeppelin copyright trial ends in success for British rock stars
- [The Second Circuit Re-Visits Dawn Donut and the Geographic Scope of Injunctive Relief in Trademark Cases](https://www.thetmca.com/the-second-circuit-re-visits-dawn-donut-and-the-geographic-scope-of-injunctive-relief-in-trademark-cases/) - More than half a century ago, the Court of Appeals for the Second Circuit issued an influential decision in Dawn Donut Co. v. Hart’s Food Stores, Inc., concerning the proper scope of injunctive relief in a trademark infringement case where the plaintiff owns a federal registration but is only doing business under its mark in
- [FTC Settles Charges with Misleading Websites:  Another Native Advertising Enforcement Action](https://www.thetmca.com/ftc-settles-charges-with-misleading-websites-another-native-advertising-enforcement-action/) - Following on the heels of the FTC’s March 2016 settlement with Lord & Taylor concerning a deceptive native advertising campaign, the FTC just announced that it has reached a settlement with SmartClick Media LLC over its phony doctor certification program and three deceptively formatted websites. While the FTC did not impose a monetary judgment on Lord &
- [Court Upholds Prison for Flea Market Owner for Counterfeiting by Tenants](https://www.thetmca.com/court-upholds-prison-for-flea-market-owner-for-counterfeiting-by-tenants/) - As trademark and copyright counterfeiting and piracy has grown, courts have become more willing to grant meaningful relief to rights owners and to penalize counterfeiters and those who facilitate their illicit activities. For example, for many years courts have held that landlords and operators of flea markets may be contributorily liable in civil cases for
- [The U.S. Supreme Court Clarifies Standard for Award of Attorneys' Fees in Copyright Cases](https://www.thetmca.com/the-u-s-supreme-court-clarifies-standard-for-award-of-attorneys-fees-in-copyright-cases/) - Today, the U.S. Supreme Court handed down an important decision regarding when the prevailing party in a copyright lawsuit is entitled to recover attorneys’ fees and costs. The Copyright Act provides that “the court may also award a reasonable attorney’s fee to the prevailing party.” The lower federal courts developed a variety of different “tests”
- [How to Infringe a Certification Mark - The Second Circuit Counts the Ways](https://www.thetmca.com/how-to-infringe-a-certification-mark-the-second-circuit-counts-the-ways/) - We blogged last week about a recent decision by the Court of Appeals for the Second Circuit in International Information Systems Security Certification Consortium, Inc. v. Security University, LLC, in which the Court confirmed the legal standard for assessing likelihood of confusion when a defendant has made nominative use of a plaintiff's trademark. The decision
- [Originality in Remastering: CBS Secures Victory in War Over Rights to Play Oldies](https://www.thetmca.com/originality-in-remastering-cbs-secures-victory-in-war-over-rights-to-play-oldies/) - CBS recently secured a potential landmark victory that could benefit radio stations, streaming services, and satellite radio providers—many of whom have been mired in litigation for years with owners of sound recordings of “oldies” music. The court in ABS Entertainment, Inc. v. CBS Corp., et al., No. 15-cv-6257, (C.D. Cal.) found that remastered versions of
- [Nominative Fair Use of a Trademark: The Second Circuit Weighs In](https://www.thetmca.com/nominative-fair-use-of-a-trademark-the-second-circuit-weighs-in/) - If a defendant in a trademark case uses the plaintiff's trademark, not to identify the defendant’s own products, but rather to refer accurately to the plaintiff's products, is that trademark infringement? Called "nominative fair use" because it is a use of a trademark to "name" the real owner of the mark, an illustrative example would
- [Trump University Playbooks Get Trumped By Trade Secrets Law](https://www.thetmca.com/trump-university-playbooks-get-trumped-by-trade-secrets-law/) - Chances are over the last several days you’ve heard presidential-hopeful Donald J. Trump express his displeasure with a certain federal judge sitting on the bench in the U.S. District Court for the Southern District of California. The judge decided an evidentiary ruling against Mr. Trump in a class-action case involving the now-defunct Trump University. The
- [Sorry Beliebers, But Justin Bieber Has Been Sued For Copyright Infringement.](https://www.thetmca.com/sorry-beliebers-but-justin-bieber-has-been-sued-for-copyright-infringement/) - Justin Bieber is headed to the land of the Grand Ole Opry. Not for concertizing, but for plagiarizing. Allegedly. On May 26, 2016, "the Biebs" was sued in the U.S. District Court for the Middle District of Tennessee for copyright infringement by an artist known as White Hinterland. According to the allegations in the complaint, Bieber
- [Comic-Con, Costumes, and Copyright Concerns](https://www.thetmca.com/comic-con-costumes-and-copyright-concerns/) - Get ready, nerds! This summer’s Comic-Con season is almost upon us and your costume is not going to make itself. But before you squeeze into your tights and cape, do you need to worry about copyright infringement? This blog recently discussed the Supreme Court’s grant of certiorari in Star Athletica, LLC v. Varsity Brands, a
- [Oracle vs. Google: More Than Just Coffee](https://www.thetmca.com/oracle-vs-google-more-than-just-coffee/) - Java – what does it mean to you? If you are like me, it’s your favorite morning beverage. It’s also an island in Indonesia that you hope to visit someday on a dive trip. If you are the owner of an Android smartphone, Java may mean more to you than that. For you, Java –
- [Tyson Foods Knocks It Out of the Park in Lanham Act Dispute over Hot Dogs](https://www.thetmca.com/tyson-foods-knocks-it-out-of-the-park-in-lanham-act-dispute-over-hot-dogs/) - Baseball parks and hot dogs are staples of Americana. So, it is no surprise that both were recently on display in a Lanham Act dispute in the U.S. District Court for the Eastern District of Pennsylvania. The court’s decision is a frank reminder about some of the core rules of the game when it comes
- [PRINCE Act Shelved by Minnesota Legislator](https://www.thetmca.com/prince-act-shelved-by-minnesota-legislator/) - Last week we reported on the right of publicity bill being considered by the Minnesota legislature in light of the passing of musical icon, Prince. As reported by the Minneapolis Star Tribune this evening, State Representative Joe Hoppe has decided to pull the proposed PRINCE Act legislation from consideration. In recent days, numerous commentators have criticized
- [Federal Court Travels “Wayback” and Takes Judicial Notice of Internet Archive](https://www.thetmca.com/federal-court-travels-wayback-and-takes-judicial-notice-of-internet-archive/) - Trademark attorneys often must determine when a third-party used a mark in commerce and the extent and nature of such use, particularly when considering whether to take legal action against a third party for the unauthorized use of a mark. The Internet Archive Wayback Machine (the “Wayback Machine”) provides access to a digital library of
- [USPTO Throws in the Towel in Dispute With Federal Judge](https://www.thetmca.com/uspto-throws-in-the-towel-in-dispute-with-federal-judge/) - In an earlier post, we discussed at length the curious case of The Board of Trustees of the University of Alabama and Paul W. Bryant, Jr. v. Houndstooth Mafia Enterprises LLC et al. Surprisingly, this dispute came to an abrupt end when the USPTO dropped its appeal to the 11th Circuit. Although the case started
- [THE DEFEND TRADE SECRETS ACT: Highlights and Implications for Employers](https://www.thetmca.com/the-defend-trade-secrets-act-highlights-and-implications-for-employers/) - Employers have something to cheer about with the passage of the Defend Trade Secrets Act of 2016! The Act provides several new tools to legally protect companies’ trade secrets and obtain relief when trade secrets have been stolen. Among other things, the law opens the door for suits in federal court for damages or injunctive relief,
- [Sign O’ the Times: the Right of Publicity Comes to Minnesota](https://www.thetmca.com/sign-o-the-times-the-right-of-publicity-comes-to-minnesota/) - The ability to control the use of one’s name, likeness, voice, and other personal attributes is known as the right of publicity. Unlike trademarks, patents, and copyrights, which are types of intellectual property governed by federal law, the right of publicity is governed by state law. Some states, such as California, New York, and Tennessee,
- [5th Circuit Adds Fuel to the Octane Fitness Fire in Lanham Act Cases](https://www.thetmca.com/5th-circuit-adds-fuel-to-the-octane-fitness-fire-in-lanham-act-cases/) - The prospect of recovering attorneys’ fees after notching a victory under the Lanham Act just got a bit rosier--at least if you find yourself prevailing in the 5th Circuit. The Lanham Act allows the recovery of attorneys’ fees in “exceptional cases.” Until just recently, in the 5th Circuit that meant the Lanham Act victor would
- [USING DESIGN PATENTS TO CLAIM FUNCTIONAL ELEMENTS???](https://www.thetmca.com/using-design-patents-to-claim-functional-elements/) - A recent opinion from the United States Court of Appeals for the Federal Circuit in Sport Dimension, Inc. v. The Coleman Co., No. 2015-1553, 7 (Fed. Cir. 2016), held that design patents can provide protection for ornamental features that are functional. In particular, the Federal Circuit found that a district court’s claim interpretation of a design
- [UK Court Finds no Glee – Evidence of Confusion Not Necessarily Needed to Succeed in a Trademark Infringement Case](https://www.thetmca.com/uk-court-finds-no-glee-evidence-of-confusion-not-necessarily-needed-to-succeed-in-a-trademark-infringement-case/) - It is not every day that a massive international TV hit show is found to infringe a trade mark. A decision of the English High Court, approved recently by the Court of Appeal, held that the popular 20th Century Fox teenage music show “glee” (including the accompanying live show and the merchandising trade it spawned)
- [China Supreme Court Has Spoken: Long Anticipated Decision on OEMs and Trademark Use](https://www.thetmca.com/china-supreme-court-has-spoken-long-anticipated-decision-on-oems-and-trademark-use/) - China has been the factory of the world for the past few decades. Countless foreign brand owners have taken advantage of the low-cost manufacturing environment and have flocked to the middle kingdom to source their goods – many of them via contract manufacturing with original equipment manufacturers (OEMs) or similar arrangements. Historically, most of these
- [What Happens in the U.S. Stays in the U.S.: IP Dispute Against Canadian Company Will Not be Moved to Canadian Forum](https://www.thetmca.com/what-happens-in-the-u-s-stays-in-the-u-s-ip-dispute-against-canadian-company-will-not-be-moved-to-canadian-forum/) - Although motions to dismiss or transfer a case based on a forum non conveniens theory typically focus on the relative merits of two U.S. jurisdictions, this theory may also be applied when a party claims that a case brought in a U.S. court should instead be decided by a court in another country. Where a
- [Reason to Cheer - SCOTUS Suits Up to Hear Copyright Clash Over Cheerleading Uniforms](https://www.thetmca.com/reason-to-cheer-scotus-suits-up-to-hear-copyright-clash-over-cheerleading-uniforms/) - Hold onto your pom-poms, copyright fans. The U.S. Supreme Court granted certiorari today to address a question that has vexed lower courts across the land: What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act? We will soon know the answer. The
- [Context Matters in False Advertising Cases – District Court Judge Denies Chobani Motion for Reconsideration of Scope of Injunction](https://www.thetmca.com/context-matters-in-false-advertising-cases-district-court-judge-denies-chobani-motion-for-reconsideration-of-scope-of-injunction/) - In a further development in the yogurt false advertising battle between Dannon and Chobani, the federal district court has rejected Chobani’s request that it reconsider and limit the scope of the injunction it issued in late January. As we blogged about here at The TMCA, the court earlier this year entered a preliminary injunction against Chobani’s
- [Dawning of New Era in Trade Secrets Litigation](https://www.thetmca.com/dawning-of-new-era-in-trade-secrets-litigation/) - Both houses of Congress have now approved a bill (the Defend Trade Secrets Act) that would create a federal civil cause of action for trade secrets misappropriation—a sea change for claims previously subject only to state law. The House of Representatives approved the bill in a landslide yesterday, while the bill passed the Senate
- [Pro Football Calls SCOTUS Audible](https://www.thetmca.com/pro-football-calls-scotus-audible/) - As we noted here last week, the Director of the USPTO filed a petition for writ of certiorari to the U.S. Supreme Court requesting that it review the Federal Circuit’s en banc decision, In re Tam. That decision held Section 2(a) of the Lanham Act is unconstitutional and that the USPTO could not rely on
- [USPTO to SCOTUS: SOS on the Lanham Act ASAP](https://www.thetmca.com/uspto-to-scotus-sos-on-the-lanham-act-asap/) - Today, the USPTO made it official: It formally requested the U.S. Supreme Court to review the en banc Federal Circuit decision that held Section 2(a) of the Lanham Act violated the First Amendment. The USPTO’s Petition can be found here. At issue in the case is whether Mr. Simon Tam is entitled to a federal
- [Who Should Own a Trademark Registration? The Case of the Not-So-Related Parent Company](https://www.thetmca.com/who-should-own-a-trademark-registration-the-case-of-the-not-so-related-parent-company/) - A recent precedential Trademark Trial and Appeal Board decision provides valuable guidance on the proper allocation of trademark registration ownership as between a corporate parent and a subsidiary, highlighting the perils of identifying the wrong entity as the owner. A trademark is not required to be used exclusively, or at all, by the owner of
- [U.S. TAX IMPLICATIONS OF OFFSHORE MIGRATION OF INTELLECTUAL PROPERTY](https://www.thetmca.com/u-s-tax-implications-of-offshore-migration-of-intellectual-property/) - In honor of Tax Day 2016, The TMCA provides a brief overview of the challenges of transferring intellectual property offshore, as well as early planning opportunities available to avoid these challenges. Intellectual property is essential in today’s technology-driven society. U.S. companies that create, develop and sell this IP are facing increasing incentives to transfer their
- [Federal Judge vs. TTAB – Trademark Battle over Bear Bryant's Houndstooth Hat](https://www.thetmca.com/federal-judge-vs-ttab-trademark-battle-over-bear-bryants-houndstooth-hat/) - The case of The Board of Trustees of the University of Alabama and Paul W. Bryant, Jr. v. Houndstooth Mafia Enterprises LLC et al. showcases an unusual clash between a federal judge and the Trademark Trial and Appeal Board (“TTAB”). The issue: if the parties to a trademark registration dispute settle while the case is
- [Can Science be Copyrighted?  You Might be Surprised...](https://www.thetmca.com/can-science-be-copyrighted-you-might-be-surprised/) - Biotechnology. For many, the mere mention of the word stirs up a thought of people in white lab coats working in underground bunkers trying to create superhuman mutant weapons, with beakers of green goo bubbling in the background. But, as is often the case, reality is far less sinister. Many scientists will tell you that
- [#Ad! -- Lessons from the FTC’s First Case since the Release of its Enforcement Policy on Native Ads](https://www.thetmca.com/ad-lessons-from-the-ftcs-first-case-since-the-release-of-its-enforcement-policy-on-native-ads/) - As was widely report here, here and here, the Federal Trade Commission entered into a settlement in March with Lord & Taylor over charges that the retailer allegedly deceived consumers through a native advertising campaign run on Instagram and an online fashion magazine in March of 2015. The settlement is noteworthy because this is the
- [Earn That Dough: The IP portfolio of “Master” Golf Putter Maker Scotty Cameron](https://www.thetmca.com/earn-that-dough-the-ip-portfolio-of-master-golf-putter-maker-scotty-cameron/) - With the 2016 Masters Golf Championship underway, we thought it would be interesting to examine the IP portfolio of golf putter maker Scotty Cameron. Most folks who have played a round or two of golf have probably heard the saying “Drive for show, putt for dough.” For those who aren’t into the world’s most frustrating
- [Right of Publicity Claim over Straight Outta Compton Gets Kicked Straight Outta Court](https://www.thetmca.com/right-of-publicity-claim-over-straight-outta-compton-gets-kicked-straight-outta-court/) - In August 2015, the film Straight Outta Compton was released. It’s a biopic about the struggles of several young African American males who formed the musical group “N.W.A.” back in the 1980s. A key player in the film is N.W.A.’s manager, Jerry Heller, who managed the group through tumultuous times. Heller is portrayed as a
- [The Slants' Trademark Application Remains in Purgatory as Federal Circuit Passes on Pushing PTO to Publish](https://www.thetmca.com/the-slants-trademark-application-remains-in-purgatory-as-federal-circuit-passes-on-pushing-pto-to-publish/) - Late last year, Simon Tam and his legal team scored a big-time victory: they convinced the U.S. Federal Circuit Court of Appeals (sitting en banc) that Section 2(a) of the Lanham Act violated the First Amendment. The Court remanded the case to the TTAB for "further proceedings." As we noted here, this ruling paved the
- [The Supreme Court Emerges From Its Carbon Freeze on Design Patents](https://www.thetmca.com/the-supreme-court-emerges-from-its-carbon-freeze-on-design-patents/) - When we last left our story, Jedi combatants Apple and Samsung were circling the Supreme Court imploring it to review their dispute involving design patents—an area of the law that the Court has not touched in over a century. This epic battle centers on what should be the correct measure of damages for infringement of
- [Passive Trademark Licensor Held Not Liable for Product Defect](https://www.thetmca.com/passive-trademark-licensor-held-not-liable-for-product-defect/) - Can merely licensing a trademark result in strict liability for injuries resulting from a product bearing the trademark? A decision earlier this month says no. In Shukrullo Dzhunaydov v. Emerson Elec. Co., et al., No. 12-CV-2188, 2016 BL 82209 (E.D.N.Y Mar. 17, 2016), plaintiff Dzhunaydov injured his hand while operating a table saw. He filed
- [Campaign IP Violations Part 2 – Trump Sued for Copyright Infringement](https://www.thetmca.com/campaign-ip-violations-part-2-trump-sued-for-copyright-infringement/) - In December, we blogged about the unauthorized use of copyrighted songs by political campaigns. Well, those campaigns should also double check the images they are using. Donald J. Trump For President, Inc. was sued in federal court in New York last week for copyright infringement by two nature photographers, Wendy Shattil and Robert Rozinski. They claim that
- [No Room at the USPTO: TTAB Rejects Booking.com Trademarks As Generic](https://www.thetmca.com/no-room-at-the-uspto-ttab-rejects-booking-com-trademarks-as-generic/) - Many online businesses prefer to use domain names that communicate as clearly and concisely as possible the types of goods and services offered on their websites. That may be good marketing strategy. But as a recent decision of the Trademark Trial and Appeal Board demonstrates, TTAB Decision, it can be very risky in terms of
- [U.S. Supreme Court Punts on Dispute Involving NFL Players’ Publicity Rights](https://www.thetmca.com/u-s-supreme-court-punts-on-dispute-involving-nfl-players-publicity-rights/) - The Supreme Court passed on an opportunity to review a recent appellate court decision holding that a video game publisher is not protected by the First Amendment for using the likenesses of former NFL football stars in the widely popular Madden NFL video game series. In the video game versions at issue, published by EA
- [Ninth Circuit Does a Two-Step in “Dancing Baby” Case](https://www.thetmca.com/ninth-circuit-does-a-two-step-in-dancing-baby-case/) - While many were focused on “The Big Dance” yesterday, the 9th Circuit Court of Appeals did some "dancing" of its own. The Court issued a revised opinion in Lenz v. Universal and thereby amended what has been referred to as the “Dancing Baby” Doctrine. Last fall, the Court issued its initial decision holding that before a
- [Drilling Down: Court Invalidates Design Patent on Wellbore Centralizer Due to Lack of Ornamentality](https://www.thetmca.com/drilling-down-court-invalidates-design-patent-on-wellbore-centralizer-due-to-lack-of-ornamentality/) - In an unusual patent claim construction order on March 2nd, a federal district court held a design patent invalid for functionality. See Order here. This is a relatively rare outcome because claim construction in design patent cases is often benign - the court merely holds that the scope of the patent’s claim is as shown
- [Avoiding The NCAA’s Full Court Press During the Month of Mental Anguish](https://www.thetmca.com/avoiding-the-ncaas-full-court-press-during-the-month-of-mental-anguish/) - It’s a wonderfully maddening time of year. “Selection Sunday” (all 2+ hours of it!) is in the rear view mirror, collegiate teams are scurrying off for their opening games, and millions of basketball fans are spending countless work hours filling out those brackets. Ah, March is back! And now is a perfect time for the
- [Former NFL Players’ Right of Publicity Claims Get Sidelined—Will We Hear From The Replay Officials?   ](https://www.thetmca.com/former-nfl-players-right-of-publicity-claims-get-sidelined-will-we-hear-from-the-replay-officials/) - In Dryer v. The National Football League, three former gridiron gladiators who played in the NFL had their claims for right of publicity under state law tossed out by the Eighth Circuit Court of Appeals. These three players (and twenty others who initially joined them) took on the NFL for its reproduction of “NFL Films”
- [Extreme Makeover Europe – Reforms to European Union Trade Mark Law](https://www.thetmca.com/extreme-makeover-europe-reforms-to-european-union-trade-mark-law/) - As seems to be in vogue recently (see explanation of significant change to Canada’s trade mark law here) the European Union adopted legislation to overhaul its trade mark law. The reforms are numerous and amendments to the regulations will come into force on 23 March 2016 (an updated trade marks directive, the harmonizing measure applicable
- [Fighting Cyberflight of Domain Names: ICANN Seeks Enforcement of New UDRP Rules](https://www.thetmca.com/fighting-cyberflight-of-domain-names-icann-seeks-enforcement-of-new-udrp-rules/) - In what appears to be a first, the Internet Corporation for Assigned Names and Numbers (“ICANN”), the organization responsible for maintenance of domain names and IP addresses, has sent a notice of non-compliance to a registrar, Visesh Infotecnics Ltd. d/b/a Signdomains.com, for failure to comply with new rules implemented by ICANN to prevent so-called “cyberflight.”
- [An IP Lesson from Bikini Bottom:  What SpongeBob Teaches Us about Trademark Licensing and Liability](https://www.thetmca.com/an-ip-lesson-from-bikini-bottom-what-spongebob-teaches-us-about-trademark-licensing-and-liability/) - It turns out that SpongeBob Squarepants is more than just an absorbent, yellow and porous cartoon character who lives in a pineapple under the sea. He can also teach us an important lesson about trademark licensing and liability. Nautical nonsense, you say? Read on about the recent 9th Circuit decision, Gibson Brands v. Viacom International.
- [Oscar “Swag Bag” Gets Booted From the Red Carpet By The Academy—Don’t Let This Happen To You!](https://www.thetmca.com/oscar-swag-bag-gets-booted-from-the-red-carpet-by-the-academy-dont-let-this-happen-to-you/) - In a recent post, we provided guidance on how an advertiser might execute a Super Bowl-related promotion even if it is not an authorized game sponsor. First, avoid mentioning the trademarked name of the event -- instead, refer more generally to the "Big Game" or other event descriptor. Second, don't include any content that suggests
- [Ninth Circuit Shoots Down Right of Publicity Lawsuit Involving Academy Award Juggernaut The Hurt Locker](https://www.thetmca.com/ninth-circuit-shoots-down-right-of-publicity-lawsuit-involving-academy-award-juggernaut-the-hurt-locker/) - As we kick off “Oscar Week” here at TheTMCA.com, it is particularly apropos to discuss a decision just handed down by the Ninth Circuit Court of Appeals involving the critically acclaimed movie, The Hurt Locker. It is a powerful film about a team of U.S. soldiers in the Iraq War that were responsible for identifying
- [#ThatPostCouldCauseALegalRoast (Are you using Instagram content illegally… without even knowing it?)](https://www.thetmca.com/thatpostcouldcausealegalroast-are-you-using-instagram-content-illegally-without-even-knowing-it/) - Love it or hate it, Instagram is coming to dominate the world of advertising. During Super Bowl 50, 38 million people reportedly made 155 million Super Bowl-related interactions on Instagram. And this week at New York Fashion Week, Tommy Hilfiger introduced the first ever “InstaPit,” treating a group of Instagrammers with celebrity status as they
- [Thinking of Sending a Cease and Desist Letter? Judge Rakoff Has Some Advice About the Declaratory Judgment Risk](https://www.thetmca.com/thinking-of-sending-a-cease-and-desist-letter-judge-rakoff-has-some-advice-about-the-declaratory-judgment-risk/) - A recent decision in federal court in New York serves both as a cautionary tale to companies looking to defend their trademarks and an important reminder to any company about to launch a new product under threat of an infringement claim. Authored by Judge Jed Rakoff, the opinion in Classic Liquor Importers, Ltd. v. Spirits
- [Avvo and Advertising in the Land of Lincoln](https://www.thetmca.com/avvo-and-advertising-in-the-land-of-lincoln/) - Illinois attorney Ms. Moira Bernstein is the latest advocate to take on Avvo.com, the Seattle-based lawyer information and rating site. On February 4, 2016, Ms. Bernstein filed a class action complaint against Avvo, Inc. (“Avvo”) in Cook County, Illinois. According to the allegations, Ms. Bernstein alleges on behalf of herself--and all lawyers similarly situated in
- [Chobani Yogurt Ad Campaign Enjoined – A Healthy Result for Yoplait and Dannon](https://www.thetmca.com/chobani-yogurt-ad-campaign-enjoined-a-healthy-result-for-yoplait-and-dannon/) - When I opened up a newspaper a few weeks ago and saw an ad by Chobani for its Simply 100 Greek Yogurt, my first thought was, “that’s going to provoke a false advertising dispute.” Here’s what Chobani said about its competitor Yoplait: “there’s potassium sorbate as a preservative in Yoplait Greek 100. Potassium sorbate? Really?
- [Did You Catch that Hashtag at the Super Bowl?](https://www.thetmca.com/did-you-catch-that-hashtag-at-the-super-bowl/) - Early in the game on Sunday night, Esurance ran a commercial announcing that it was giving away more than $1 million through a sweepstakes on Twitter. You may remember that Esurance made a splash with a Twitter-based sweepstakes directly after the 2014 Super Bowl. So what’s the big deal about this year’s sweepstakes? It was
- [Glue Company in Sticky Situation with FTC over “Made in the USA” Advertising Claims—Who Will Get Stuck Next?](https://www.thetmca.com/glue-company-in-sticky-situation-with-ftc-over-made-in-the-usa-advertising-claims-who-will-get-stuck-next/) - In a recent post, we discussed the potential perils and pitfalls of advertising consumer products as “Made in the USA.” As we noted there, different federal and state regulatory regimes do not necessarily follow the same standard on when something can be deemed “made” here. This legal patchwork means that product manufacturers and resellers of
- [Is LeBron James a “Medium of Expression” under the Copyright Act?  We May Soon Find Out.](https://www.thetmca.com/is-lebron-james-a-medium-of-expression-under-the-copyright-act-we-may-soon-find-out/) - Many professional athletes these days—particularly those in the National Basketball Association—have their bodies bedecked with all sorts of tattoos. It’s a trend that has steadily caught fire over the last several years with one recent estimate indicating that over 50% of all NBA players sport body art. These tattoos are not just trivial works, but play
- [Katy Perry, Last Year's Super Bowl, and a Shark with a Mark](https://www.thetmca.com/katy-perry-last-years-super-bowl-and-a-shark-with-a-mark/) - With Super Bowl 50 quickly approaching, it’s a perfect excuse to check in on one of the IP issues that made big waves at last year’s “Big Game.” You may recall that the Super Bowl halftime show last year featured Katy Perry crooning on a beach-themed stage flanked by two dancing sharks. The shark to
- [Don't Let Your Super Bowl Promotion Get Sidelined](https://www.thetmca.com/dont-let-your-super-bowl-promotion-get-sidelined/) - Every year at this time clients call who want to take advantage of Super Bowl frenzy, whether by running an online sweepstakes, offering a special deal to customers on Super Sunday, posting memes on their Facebook pages, sending out tweets in support of their favorite team or hosting a viewing party. If you are thinking of
- [Black Ops  Mission Accomplished by Federal Trademark Registration](https://www.thetmca.com/black-ops-mission-accomplished-by-federal-trademark-registration/) - A recent district court decision granting a preliminary injunction in The Brooklyn Brewery Corp. v. Black Ops Brewing, Inc. demonstrates the advantage of owning a federal trademark registration when products bearing the registered mark are not sold nationwide. The case, which arose in federal court for the Eastern District of California, involved a claim of trademark
- [Is the New York Road Runners Club Running a Sweepstakes or an Illegal Lottery?](https://www.thetmca.com/is-the-new-york-road-runners-club-running-a-sweepstakes-or-an-illegal-lottery/) - Is the New York City Marathon running an illegal lottery? According to a class action complaint filed in the Southern District of New York last week, the answer is “yes”. The two named plaintiffs in Konopa v. New York Road Runners Club, Inc. assert that the Marathon is an illegal lottery because entrants must pay an
- [Going Native? Part 2: The FTC’s Native Advertising Guide for Businesses – The Why, When and How of Effective Disclosures](https://www.thetmca.com/going-native-part-2-the-ftcs-native-advertising-guide-for-businesses-the-why-when-and-how-of-effective-disclosures/) - At the end of December, we blogged about the FTC’s long-awaited Enforcement Policy Statement on Deceptively Formatted Advertisements. Along with the policy, the FTC issued a Guide for Businesses that contains seventeen real-world examples to help businesses understand why and when disclosures are necessary in native advertising and how to effectively make those disclosures. Why
- [Louis Vuitton and My Other Bag – Do You Get The Joke?](https://www.thetmca.com/louis-vuitton-and-my-other-bag-do-you-get-the-joke/) - In a recent post, we discussed the trademark parody defense in the context of a California district court decision holding that the owner of the Superman “S” logo had adequately stated infringement claims asserted against a “DAD” t-shirt with a shield design allegedly parodying the Superman logo. Parody has made legal news yet again, but
- [The “Smart Phone” Wars – Episode VII: Will the Force of the Supreme Court Awaken?](https://www.thetmca.com/the-smart-phone-wars-episode-vii-will-the-force-of-the-supreme-court-awaken/) - Design patents protect the ornamental features of utilitarian objects, that is, the uniqueness of aesthetic features, form, or configuration of products. Design patents can be a significant weapon in the intellectual property protection arsenal, especially for companies that manufacture consumer goods. Take the case of Apple and Samsung. A portion of the ongoing, multinational patent
- [The Next Copyright "Fantasy" is Headed to The Supreme Court](https://www.thetmca.com/the-next-copyright-fantasy-is-headed-to-the-supreme-court/) - The last time the U.S. Supreme Court tackled the issue of attorneys’ fees under the Copyright Act was in Fogerty v. Fantasy. In that case, John Fogerty was sued for alleged copyright infringement over his song “The Old Man Down the Road.” The jury sided with Fogerty, but the trial court denied him fees because
- [Court tells Brooklyn Artist to “Fugetaboutit” on Her Copyright Claims against Starbucks](https://www.thetmca.com/court-tells-brooklyn-artist-to-fugetaboutit-on-her-copyright-claims-against-starbucks/) - Maya Hayuk is a Brooklyn artist known for her vivid murals that use a variety of geometric shapes punctuated by bright hues and layers of dripping paint. In June of 2015, Hayuk filed a complaint against Starbucks on copyright grounds. She claimed that Starbucks copied various pieces of her artwork for its Frappuccino advertising campaign, consisting of
- [ISPs on ALERT: Failing to Terminate Repeat Infringers Can Be Costly](https://www.thetmca.com/isps-on-alert-failing-to-terminate-repeat-infringers-can-be-costly/) - A recent court order from the United States District Court for the Eastern District of Virginia—and a resulting jury verdict - may be instructive to internet service providers (“ISPs”) when it comes to their “repeat infringer” policies under the DMCA. The Court found Cox Communications (“Cox”) was not entitled to “safe harbor” protection under the Digital Millennium
- [Seattle Seahawks’ Star Running Back Marshawn Lynch Scores a Federal Trademark Registration—Did The Examiner Misread The Playbook?](https://www.thetmca.com/seattle-seahawks-star-running-back-marshawn-lynch-scores-a-federal-trademark-registration-did-the-examiner-misread-the-playbook/) - Various media outlets were abuzz recently about how Marshawn Lynch received a federal trademark registration for “I’m Just Here So I Won’t Get Fined” for t-shirts and other apparel items. He uttered that phrase more than 20 times at a press conference before last year’s Super Bowl in response to a variety of questions from
- [Superman, Superdad, and the Limits of a Trademark Parody Defense](https://www.thetmca.com/superman-superdad-and-the-limits-of-a-trademark-parody-defense/) - Superman has triumphed yet again, this time with help from the federal court in the Central District of California. It wasn’t actually Superman that scored this particular victory, but DC Comics, owner of the trademark rights in Superman’s iconic shield design. On December 15, 2015, the court in DC Comics v. Mad Engine, Inc. denied the
- [Broadway Production Scores Home Run over It’s Use of “Who’s On First?” Comedy Routine](https://www.thetmca.com/broadway-production-scores-home-run-over-its-use-of-whos-on-first-comedy-routine/) - Bud Abbott and Lou Costello were a vaudeville comedic juggernaut. Among the duo’s many accomplishments during their heyday was the creation of “Who’s on First?” which is still widely considered one of the most famous comedy routines of all time. But the heirs of Abbott and Costello were hardly laughing when portions of the routine
- [Going Native?  The FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements Provides a Roadmap – Part 1](https://www.thetmca.com/going-native-the-ftcs-enforcement-policy-statement-on-deceptively-formatted-advertisements-provides-a-roadmap-part-1/) - Last week, the FTC issued its long-awaited Enforcement Policy Statement on Deceptively Formatted Advertisements, often referred to as "native advertising." For those unfamiliar with the term, the FTC helpfully explains that "native advertising" is advertising and promotional content designed to be integrated into -- and often indistinguishable from -- editorial and other non-commercial content published
- [The Impact of Rejection on Trademark Licensees’ Rights in Bankruptcy: the Latest Decision on an Issue that Has Courts Divided](https://www.thetmca.com/the-impact-of-rejection-on-trademark-licensees-rights-in-bankruptcy-the-latest-decision-on-an-issue-that-has-courts-divided/) - A decision by the Bankruptcy Court for the District of New Hampshire is the latest of a handful of cases in the past few years to weigh in on a circuit split as to whether a licensor of trademark rights can fully terminate a licensing agreement as a debtor in bankruptcy. While courts have trended
- [Federal Circuit Holds Lanham Act’s Bar on Registering “Disparaging Marks” Violates the First Amendment](https://www.thetmca.com/federal-circuit-holds-lanham-acts-bar-on-registering-disparaging-marks-violates-the-first-amendment/) - The U.S. Court of Appeals for the Federal Circuit has just gone where no other court has gone before. In a tour-de-force judicial opinion, the Court emphatically held that a small sliver of the Lanham Act—the “disparaging trademark” provision in Section 2(a)—violates the First Amendment. The case is In Re Simon Shiao Tam and the dispute
- [A Brief Decoding of Trademark Notice Guidelines](https://www.thetmca.com/a-brief-decoding-of-trademark-notice-guidelines/) - As the global nature of the economy and business grows, companies are faced with the challenge of determining when, whether and how to provide notice of trademark rights on product packaging and advertising materials. The laws governing use of notice symbols (or “marking”) and consequences for improper use vary, sometimes greatly, by jurisdiction. The consequences
- [Can My Website Subject My Business to Liability Under the Americans With Disabilities Act (ADA)?](https://www.thetmca.com/can-my-website-subject-my-business-to-liability-under-the-americans-with-disabilities-act-ada/) - It may come as a surprise that the answer to the above question is yes, or so a number of plaintiffs claim in lawsuits that have been filed recently in the U.S. More specifically, in the U.S. District Court for the Western District of Pennsylvania, dozens of cases have been filed by plaintiffs against large
- [A Fight Over the Abandoned STRATOTONE Guitar Brand – Federal District Court Picks a Winner](https://www.thetmca.com/a-fight-over-the-abandoned-stratotone-guitar-brand-federal-district-court-picks-a-winner/) - A recent federal district court decision involving the iconic STRATOTONE guitar brand, Agler v. Westheimer Corp. illustrates two important principles concerning the law of trademark abandonment: First, once a mark is deemed legally abandoned, it can be adopted by a third party unrelated to the legacy mark owner so long as no false representations are made
- [Famed Artist Jeffrey Koons Sued For Alleged Copyright Infringement…Again](https://www.thetmca.com/famed-artist-jeffrey-koons-sued-for-alleged-copyright-infringementagain/) - Jeffrey Koons is well-known to artists, auction houses, and copyright enthusiasts. His works of art have fetched substantial sums of money, including one that recently sold for more than $58 million—the most expensive work of art by a living artist sold at auction. Some of Mr. Koons’ works also wind up being exhibited in federal
- [Second Chances - USPTO Trademark Pilot Program Allows for Amendments Based on Technology Evolution](https://www.thetmca.com/second-chances-uspto-trademark-pilot-program-allows-for-amendments-based-on-technology-evolution/) - The USPTO recently launched a pilot program to allow amendments in limited circumstances to the identification of goods or services in existing trademark registrations, in order to account for changes in technology formats. The program provides new hope for the maintenance of trademark registrations for businesses whose products or services have changed due to evolving
- [When Are Jeans Made In The U.S.A.?](https://www.thetmca.com/when-are-jeans-made-in-the-u-s-a/) - A little over 30 years ago, Bruce Springsteen unleashed "Born in the USA"--the rock anthem about disaffected Vietnam veterans struggling as they returned home. Today, clothing manufacturers and their resellers riffing on that “U.S.A. theme” have unleashed something quite different: class action lawsuits spurred by allegedly-disaffected consumers. Citizens of Humanity, True Religion, Macy’s, and others
- [Healthy Holidays From the FTC: Reminders from the FTC to Keep Health Advertising Claims Healthy](https://www.thetmca.com/healthy-holidays-from-the-ftc-reminders-from-the-ftc-to-keep-health-advertising-claims-healthy/) - Late last week, the FTC Business Center Blog posted a short but important entry on health-related advertising representations entitled 5 principles to help keep your health claims healthy. This friendly reminder highlights lessons from a few of the FTC’s recent enforcement actions, including the $1.35 million settlement with Tommie Copper, Inc. The settlement was entered
- [Presidential Campaigns Using Songs Without Permission Hit a Sour Note](https://www.thetmca.com/presidential-campaigns-using-songs-without-permission-hit-a-sour-note/) - Republican Presidential hopeful Donald Trump is “Not Gonna Take It”. He recently received permission from Dee Snider to use Twisted Sister’s 1984 hit “We’re Not Gonna Take It” in his campaign. Trump sought permission after being admonished by Steven Tyler of Aerosmith, R.E.M., and Neil Young for using their songs at campaign events without authorization.
- [Instagram and the #FreeLunch:  FTC Guidelines on Social Media Endorsements](https://www.thetmca.com/instagram-and-the-freelunch-ftc-guidelines-on-social-media-endorsements/) - With Thanksgiving behind us and the holiday season in full swing, many of us will be dining out at local restaurants and picking up sumptuous desserts to bring to dinner parties. Looking for restaurant and bakery suggestions? Look no further than Instagram. A recent article in the Wall Street Journal, entitled “Food Instagrammers Turn Their Accounts
- [False Advertising Claims Dismissed Against Blue Moon Beer in Artfully Crafted Opinion](https://www.thetmca.com/false-advertising-claims-dismissed-against-blue-moon-beer-in-artfully-crafted-opinion/) - For the past few years, the courts have decided a number of cases involving claims of false advertising and labeling of food products. For example, consumers and health advocates contend that an “all natural” designation is false and misleading if certain ingredients are used and that the “organic” label is compromised by certain types of
- [Down Stream from Aereo:  FilmOn Pulled by Different Legal Currents](https://www.thetmca.com/down-stream-from-aereo-filmon-pulled-by-different-legal-currents/) - Last year in American Broad. Cos., Inc. v. Aereo, Inc., the Supreme Court dealt a significant victory to the broadcast industry when it concluded that Aereo’s online streaming services infringed the broadcasters’ copyrighted works. The crux of the case was whether Aereo publicly performed the works when it allowed users to stream content – the
- [FDA Seems Ready to Weigh In on “Natural” Food Labeling](https://www.thetmca.com/fda-seems-ready-to-weigh-in-on-natural-food-labeling/) - In 1960, Judge Friendly famously began an opinion by asking, “What is chicken?” Today, the question is, “What is ‘natural’?” Courts today are filled with cases claiming that foods labeled as “natural” are misleading because they contain chemical preservatives; genetically modified ingredients such as corn starch and canola oil; and such compounds as citric acid
- [YouTube to Take a Stand for Fair Use](https://www.thetmca.com/youtube-to-take-a-stand-for-fair-use/) - As we have written elsewhere on this blog, the Ninth Circuit Court of Appeals recently held that copyright owners must consider fair use before submitting takedown requests to internet service providers under the Digital Millennium Copyright Act (“DMCA”). The DMCA provides a “notice and takedown” mechanism under which copyright holders can formally request file service
- [Are Things Getting Nutty at the USPTO?](https://www.thetmca.com/are-things-getting-nutty-at-the-uspto/) - As we enter the Thanksgiving and holiday season this year, it is particularly apropos to ponder the following question: Is the TTAB going nuts? Congress tells us that the PTO cannot register trademarks that are scandalous or immoral due to Section 2(a) of the Lanham Act. This legal issue has now been laid bare in
- [Court Gives Backhand to Most of Plaintiff’s “Handmade” Vodka False Advertising Claims](https://www.thetmca.com/court-gives-backhand-to-most-of-plaintiffs-handmade-vodka-false-advertising-claims/) - In a recent post on TheTMCA.com, we discussed how a California court held that the phrase “artfully crafted” was not a false or misleading description of the popular Blue Moon microbrew. It turns out that a federal court in the Buckeye State dealt a swift blow to similarly-crafted claims against the Texas-based maker of Tito’s
- [Pandora Pays To Play the Oldies—Is It Time For Congress To Join The Chorus?](https://www.thetmca.com/pandora-pays-to-play-the-oldies-is-it-time-for-congress-to-join-the-chorus/) - The popular music app company Pandora Media Inc. has opened quite a musical box. It has been in litigation over what are known and loved as the “oldies.” Various record labels such as Capitol Records and Sony Music sued Pandora in New York on April 17, 2014 for common law copyright infringement over Pandora’s streaming of
- [Trademark Practice Tip: Services Must Actually be Rendered to Constitute “Use in Commerce” for Service Mark Registration](https://www.thetmca.com/trademark-practice-tip-services-must-actually-be-rendered-to-constitute-use-in-commerce-for-service-mark-registration/) - Has a service mark been used in commerce if the services have been offered but there are no takers? The Federal Circuit issued a decision earlier this year in Couture v. Playdom, Inc., 778 F.3d 1379 (Fed. Cir. 2015), which confirms that applicants seeking to register a service mark in the United States based on
- [Recipe Book Held Uncopyrightable Due to Insufficient Proof of Creative Content or Arrangement](https://www.thetmca.com/recipe-book-held-uncopyrightable-due-to-insufficient-proof-of-creative-content-or-arrangement/) - Longstanding interpretation of the Copyright Act establishes that recipes are not copyrightable. The reasoning for this determination is twofold: cooking ingredients are considered statements of fact, and instructions for food preparation are deemed merely functional directions. A recent appellate court involving a plaintiff with the Gershwin-inspired name of Tomaydo-Tomahhdo, LLC goes even further, holding that
- [“Oodles” of Evidence Support Marketing Professor's Opinion in Class Action False Advertising Suit](https://www.thetmca.com/oodles-of-evidence-support-marketing-professors-opinion-in-class-action-false-advertising-suit/) - If one takes as true the allegations in recent federal court false advertising complaints, then consumers are being duped at every turn by any number of corporate capers. "Crafty" beer manufacturers, purveyors of "all natural" products, and peddlers of misnamed coffee products are just a few recent examples of those that have supposedly hoodwinked unsuspecting
- [Pinterest Comes Up Short in Interesting Trademark Decision](https://www.thetmca.com/pinterest-comes-up-short-in-interesting-trademark-decision/) - The federal court for the Northern District of California has denied permanent injunctive relief in a lawsuit for trademark infringement and dilution brought by Pinterest against the use of the mark PINTRIPS for a website-based travel planning service. Pinterest, Inc. v. Pintrips, Inc., 13-cv-04608 (N.D. Cal. Oct. 21, 2015). The conclusion of non-infringement was based
- [Pierre Garçon v. FanDuel:  Will Plaintiff Score or Get Stopped Short of the Goal Line?](https://www.thetmca.com/pierre-garcon-v-fanduel-will-plaintiff-score-or-get-stopped-short-of-the-goal-line/) - On the eve of Halloween, NFL wide receiver Pierre Garçon dished up quite a treat for FanDuel, the beleaguered fantasy sports company. Garçon, on behalf of himself and other similarly-situated NFL football players, sued FanDuel in Maryland federal court claiming the fantasy sports company is violating the NFL players' "rights of publicity." He also claimed
- [Consumers Like You – Can you Like Them Back? Right of Publicity Issues on Social Media](https://www.thetmca.com/consumers-like-you-can-you-like-them-back-right-of-publicity-issues-on-social-media/) - A recent New York Times article serves as a helpful reminder that the use of a person’s name or photograph for commercial advertising and promotional purposes, without the person’s consent, would likely violate state right of publicity laws and potentially contravene a company’s privacy policy or website terms of service. http://www.nytimes.com/2015/09/21/business/media/retailers-use-of-their-fans-photos-draws-scrutiny.html?_r=0. Even if a
- [Sweepstakes Sponsors Take Note – Remedial Steps Can Save the Day](https://www.thetmca.com/sweepstakes-sponsors-take-note-remedial-steps-can-save-the-day/) - The Scotts Company, LLC, a leading provider of home and garden pest control solutions, ran a sweepstakes where consumers were invited to review -- good or bad -- a Scotts product for a chance to win a $25 gift card. We assume there was also a no-purchase-necessary way to enter because that wasn’t the subject
- [Tiffany v. Costco:  The Perils of Not Offering Consumer Survey Evidence](https://www.thetmca.com/tiffany-v-costco-the-perils-of-not-offering-consumer-survey-evidence/) - In trademark and advertising disputes, one question frequently rises to the top of the discussion between counsel and client: “Do we need a consumer survey?” Because well-designed surveys can act as proxies for what is happening in the marketplace among relevant consumers, many courts and juries will often place significant stock in them. Not all
- [“Compare To” Claims – NAD Holds that Competing Products With Different Levels of Clinical Support are Not Truly Comparable](https://www.thetmca.com/compare-to-claims-nad-holds-that-competing-products-with-different-levels-of-clinical-support-are-not-truly-comparable/) - Grammar guides advise that “compare to” is the proper formulation when two things are similar -- as in “Shall I compare thee to a summer’s day” -- whereas “compare with” should be used to point out dissimilarity or contrast. In the legal context, both NAD and the federal courts have grappled with the use of
- [Amazon.com Keeps on Ticking in 9th Circuit Reversal in Watch Maker Trademark Dispute](https://www.thetmca.com/amazon-com-keeps-on-ticking-in-9th-circuit-reversal-in-watch-maker-trademark-dispute/) - In a surprise move, a panel of the Ninth Circuit Court of Appeals withdrew its earlier decision in Multi Time Machine, Inc. v. Amazon.com and issued a new opinion holding that the online behemoth is not liable to specialty watch maker Multi Time Machine, Inc. (“MTM”) for trademark infringement. MTM manufactures an assortment of military-style watches. One particular
- [The Dancing Baby Doctrine:  9th Circuit Rules That Fair Use Must Be Considered Before Sending DMCA Takedown Notice](https://www.thetmca.com/the-dancing-baby-doctrine-9th-circuit-rules-that-fair-use-must-be-considered-before-sending-dmca-takedown-notice/) - In a closely-watched dispute stretching back to 2007, the Ninth Circuit Court of Appeals handed down an important copyright “fair use” decision in Lenz v. Universal. It all began in 2007 when a woman known as Ms. Stephanie Lenz was inspired by her toddler dancing and swaying to music in the family kitchen. Moved
- [While the jacket might be puffy, the claims weren’t puffery.  The NAD provides guidance on distinguishing performance claims from puffery.](https://www.thetmca.com/while-the-jacket-might-be-puffy-the-claims-werent-puffery-the-nad-provides-guidance-on-distinguishing-performance-claims-from-puffery/) - The National Advertising Division is already gearing up for winter, with a recent decision on the tagline “Lightest. Warmest. Guaranteed” for down jackets marketed by Eddie Bauer. Eddie Bauer, LLC, Report #5875 (NAD Case Reports ___). The decision provides useful guidance on the line between puffery and objective claims that require substantiation. As part
- [CAFC Addresses Evidence of Third Party Marks and Comparison of Marks as a Whole in the Likelihood of Confusion Analysis](https://www.thetmca.com/cafc-addresses-evidence-of-third-party-marks-and-comparison-of-marks-as-a-whole-in-the-likelihood-of-confusion-analysis/) - This past summer, the Court of Appeals for the Federal Circuit issued two decisions providing valuable insights on how the TTAB should evaluate evidence of third party marks and compare marks as a whole in the likelihood of confusion analysis in opposition proceedings. See Juice Generation, Inc. v. GS Enterprises LLC, No. 2014-1853, 2015 WL 4400033
- [2nd Circuit Rules Google’s Massive Book-Scanning Project is a Fair Use](https://www.thetmca.com/2nd-circuit-rules-googles-massive-book-scanning-project-is-a-fair-use/) - Google’s quest to assemble an enormous digital library of books got a big boost from the 2nd Circuit Court of Appeals in Authors Guild v. Google, Inc. The key issue in this longstanding legal battle was whether Google could scan the works still under copyright and make “snippets” of these digitized works available to the public for
- [Is it a Feeling or a Fact? NAD Addresses the Issue of Sensory Perception vs. Objective Performance Claims](https://www.thetmca.com/is-it-a-feeling-or-a-fact-nad-addresses-the-issue-of-sensory-perception-vs-objective-performance-claims/) - A recent NAD decision addresses the issue of when an advertising claim is “sensory“ in nature and can be supported by consumer perception evidence, and when a claim is a product performance claim, requiring objective testing for substantiation. See Kimberly-Clark Corp., Report #5866 (July 17, 2015) http://www.asrcreviews.org/?s=huggies&x=2&y=4. The case involved a challenge by Procter &Gamble
- [New Exemptions to the DMCA](https://www.thetmca.com/new-exemptions-to-the-dmca/) - The Digital Millennium Copyright Act (DMCA), enacted in 1998, prohibits users of copyrighted works from circumventing technological measures placed on those works (e.g., encryption), subject to limited exemptions. Some of the exemptions are permanent, such as reverse engineering to ensure interoperability. Other exemptions are revisited every three years by the Librarian of Congress. During this

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- [Contact](https://www.thetmca.com/contact/) - If you have any questions about this blog, Dorsey, or our practice group please contact one of our editors. Jeffrey Cadwell Minneapolis T:(612) 492-6842 F:(612) 340-8827 cadwell.jeffrey@dorsey.com LinkedIn J. Michael Keyes Seattle T:(206) 903-8757 Palo Alto T:(650) 843-2759 keyes.mike@dorsey.com LinkedIn Kaleb McNeely New York T:(212) 415-9215 F:(212) 953-7201 mcneely.kaleb@dorsey.com Sarah Robertson New York T:(212) 735-0788
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- [Simply 100](https://www.thetmca.com/tag/simply-100/)
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- [Abraham Lincoln](https://www.thetmca.com/tag/abraham-lincoln/)
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- [Vodka](https://www.thetmca.com/tag/vodka/)
- [Classic Liquor](https://www.thetmca.com/tag/classic-liquor/)
- [SPI](https://www.thetmca.com/tag/spi/)
- [Groupon](https://www.thetmca.com/tag/groupon/)
- [Copyright Law](https://www.thetmca.com/tag/copyright-law/)
- [hashtag](https://www.thetmca.com/tag/hashtag/)
- [The Hurt Locker](https://www.thetmca.com/tag/the-hurt-locker/)
- [The Oscars](https://www.thetmca.com/tag/the-oscars/)
- [Academy Awards](https://www.thetmca.com/tag/academy-awards/)
- [Sergeant Jeffrey Sarver](https://www.thetmca.com/tag/sergeant-jeffrey-sarver/)
- [Red Carpet](https://www.thetmca.com/tag/red-carpet/)
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- [Academy of Motion Picture Arts and Sciences](https://www.thetmca.com/tag/academy-of-motion-picture-arts-and-sciences/)
- [20th Century Fox](https://www.thetmca.com/tag/20th-century-fox/)
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- [Cyberflight](https://www.thetmca.com/tag/cyberflight/)
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- [Office of Harmonisation in the Internal Market](https://www.thetmca.com/tag/office-of-harmonisation-in-the-internal-market/)
- [Community Trade Mark](https://www.thetmca.com/tag/community-trade-mark/)
- [EU Trade Mark](https://www.thetmca.com/tag/eu-trade-mark/)
- [Communications Assistance for Law Enforcement Act (CALEA)](https://www.thetmca.com/tag/communications-assistance-for-law-enforcement-act-calea/)
- [National Commission on Security and Technology Challenges](https://www.thetmca.com/tag/national-commission-on-security-and-technology-challenges/)
- [National Football League](https://www.thetmca.com/tag/national-football-league/)
- [NFL](https://www.thetmca.com/tag/nfl/)
- [NFL Films](https://www.thetmca.com/tag/nfl-films/)
- [March Madness](https://www.thetmca.com/tag/march-madness/)
- [March Mayhem](https://www.thetmca.com/tag/march-mayhem/)
- [Final Four](https://www.thetmca.com/tag/final-four/)
- [Sweet Sixteen](https://www.thetmca.com/tag/sweet-sixteen/)
- [Elite Eight](https://www.thetmca.com/tag/elite-eight/)
- [Fox](https://www.thetmca.com/tag/fox/)
- [Fox Television](https://www.thetmca.com/tag/fox-television/)
- [Libel](https://www.thetmca.com/tag/libel/)
- [D'Lites ice cream](https://www.thetmca.com/tag/dlites-ice-cream/)
- [Dancing Baby](https://www.thetmca.com/tag/dancing-baby/)
- [booking.com](https://www.thetmca.com/tag/booking-com/)
- [generic](https://www.thetmca.com/tag/generic/)
- [Hulk Hogan](https://www.thetmca.com/tag/hulk-hogan/)
- [Gawker](https://www.thetmca.com/tag/gawker/)
- [Clems](https://www.thetmca.com/tag/clems/)
- [Nick Denton](https://www.thetmca.com/tag/nick-denton/)
- [Daulerio](https://www.thetmca.com/tag/daulerio/)
- [Chipotle Mexican Grill](https://www.thetmca.com/tag/chipotle-mexican-grill/)
- [Chipotle](https://www.thetmca.com/tag/chipotle/)
- [NLRA](https://www.thetmca.com/tag/nlra/)
- [Concerted Activity](https://www.thetmca.com/tag/concerted-activity/)
- [Trump](https://www.thetmca.com/tag/trump/)
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- [Emerson Electric](https://www.thetmca.com/tag/emerson-electric/)
- [Home Depot](https://www.thetmca.com/tag/home-depot/)
- [Guns n' Roses](https://www.thetmca.com/tag/guns-n-roses/)
- [Dr. Dre](https://www.thetmca.com/tag/dr-dre/)
- [NWA](https://www.thetmca.com/tag/nwa/)
- [Paul Giamatti](https://www.thetmca.com/tag/paul-giamatti/)
- [Jerry Heller](https://www.thetmca.com/tag/jerry-heller/)
- [Straight Outta Compton](https://www.thetmca.com/tag/straight-outta-compton/)
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- [Lord & Taylor](https://www.thetmca.com/tag/lord-taylor/)
- [#ad](https://www.thetmca.com/tag/ad/)
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- [biotechnology](https://www.thetmca.com/tag/biotechnology/)
- [DNA sequences](https://www.thetmca.com/tag/dna-sequences/)
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- [Crimson Tide](https://www.thetmca.com/tag/crimson-tide/)
- [Bear Bryant](https://www.thetmca.com/tag/bear-bryant/)
- [College Football](https://www.thetmca.com/tag/college-football/)
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- [NBC Chimes](https://www.thetmca.com/tag/nbc-chimes/)
- [sound mark](https://www.thetmca.com/tag/sound-mark/)
- [Floorco](https://www.thetmca.com/tag/floorco/)
- [Furnco](https://www.thetmca.com/tag/furnco/)
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- [EU Data Protection Regulation](https://www.thetmca.com/tag/eu-data-protection-regulation/)
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- [SCOTUS](https://www.thetmca.com/tag/scotus/)
- [Defend Trade Secrets Act](https://www.thetmca.com/tag/defend-trade-secrets-act/)
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- [cheerleading](https://www.thetmca.com/tag/cheerleading/)
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- [forum non conveniens](https://www.thetmca.com/tag/forum-non-conveniens/)
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- [PRC Supreme Court](https://www.thetmca.com/tag/prc-supreme-court/)
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- [OEM Trademark Infringement](https://www.thetmca.com/tag/oem-trademark-infringement/)
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- [ornamental feature](https://www.thetmca.com/tag/ornamental-feature/)
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- [Octane Fitness](https://www.thetmca.com/tag/octane-fitness/)
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- [Wayback Machine](https://www.thetmca.com/tag/wayback-machine/)
- [Internet Archive](https://www.thetmca.com/tag/internet-archive/)
- [University of Alabama](https://www.thetmca.com/tag/university-of-alabama/)
- [Houndstooth](https://www.thetmca.com/tag/houndstooth/)
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- [ball park](https://www.thetmca.com/tag/ball-park/)
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- [Java](https://www.thetmca.com/tag/java/)
- [Sun Microsystems](https://www.thetmca.com/tag/sun-microsystems/)
- [Oracle](https://www.thetmca.com/tag/oracle/)
- [Java API](https://www.thetmca.com/tag/java-api/)
- [Comic-Con](https://www.thetmca.com/tag/comic-con/)
- [Cosplay](https://www.thetmca.com/tag/cosplay/)
- [Varsity Brands](https://www.thetmca.com/tag/varsity-brands/)
- [Justin Bieber](https://www.thetmca.com/tag/justin-bieber/)
- [#wedontsteal](https://www.thetmca.com/tag/wedontsteal/)
- [Purpose Tour](https://www.thetmca.com/tag/purpose-tour/)
- [#Purpose](https://www.thetmca.com/tag/purpose/)
- [Make America Great Again](https://www.thetmca.com/tag/make-america-great-again/)
- [TrumpU](https://www.thetmca.com/tag/trumpu/)
- [nominative fair use](https://www.thetmca.com/tag/nominative-fair-use/)
- [SU](https://www.thetmca.com/tag/su/)
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- [La Contessa](https://www.thetmca.com/tag/la-contessa/)
- [Burning Man Festival](https://www.thetmca.com/tag/burning-man-festival/)
- [CBS](https://www.thetmca.com/tag/cbs/)
- [Satelite Radio](https://www.thetmca.com/tag/satelite-radio/)
- [Streaming](https://www.thetmca.com/tag/streaming/)
- [Terrestrial Radio](https://www.thetmca.com/tag/terrestrial-radio/)
- [SoundExchange](https://www.thetmca.com/tag/soundexchange/)
- [Certification Mark](https://www.thetmca.com/tag/certification-mark/)
- [CISSP](https://www.thetmca.com/tag/cissp/)
- [Ed Sheeran](https://www.thetmca.com/tag/ed-sheeran/)
- [Photograph](https://www.thetmca.com/tag/photograph/)
- [Harrington](https://www.thetmca.com/tag/harrington/)
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- [counterfeiting](https://www.thetmca.com/tag/counterfeiting/)
- [contributory liability](https://www.thetmca.com/tag/contributory-liability/)
- [Eighth Circuit](https://www.thetmca.com/tag/eighth-circuit/)
- [flea market](https://www.thetmca.com/tag/flea-market/)
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- [Disclosures](https://www.thetmca.com/tag/disclosures/)
- [clear and conspicuous](https://www.thetmca.com/tag/clear-and-conspicuous/)
- [SmartClick](https://www.thetmca.com/tag/smartclick/)
- [#stairwaytoheaven](https://www.thetmca.com/tag/stairwaytoheaven/)
- [Led Zeppelin](https://www.thetmca.com/tag/led-zeppelin/)
- [Robert Plant](https://www.thetmca.com/tag/robert-plant/)
- [injunctions](https://www.thetmca.com/tag/injunctions/)
- [Dawn Donut](https://www.thetmca.com/tag/dawn-donut/)
- [Guthrie](https://www.thetmca.com/tag/guthrie/)
- [ContextMedia](https://www.thetmca.com/tag/contextmedia/)
- [Jimmy Page](https://www.thetmca.com/tag/jimmy-page/)
- [Brexit](https://www.thetmca.com/tag/brexit/)
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- [UK](https://www.thetmca.com/tag/uk/)
- [Community Trade Marks](https://www.thetmca.com/tag/community-trade-marks/)
- [IMPI](https://www.thetmca.com/tag/impi/)
- [Mexican Institute of Industrial Property](https://www.thetmca.com/tag/mexican-institute-of-industrial-property/)
- [Trademark Opposition System](https://www.thetmca.com/tag/trademark-opposition-system/)
- [NYC](https://www.thetmca.com/tag/nyc/)
- [Empire State Building](https://www.thetmca.com/tag/empire-state-building/)
- [New York City](https://www.thetmca.com/tag/new-york-city/)
- [ICPEN](https://www.thetmca.com/tag/icpen/)
- [reviews](https://www.thetmca.com/tag/reviews/)
- [Madonna](https://www.thetmca.com/tag/madonna/)
- [de minimis](https://www.thetmca.com/tag/de-minimis/)
- [Nimmer](https://www.thetmca.com/tag/nimmer/)
- [Influencers](https://www.thetmca.com/tag/influencers/)
- [Rustoleum](https://www.thetmca.com/tag/rustoleum/)
- [comparative product testing](https://www.thetmca.com/tag/comparative-product-testing/)
- [comparative advertising](https://www.thetmca.com/tag/comparative-advertising/)
- [2X](https://www.thetmca.com/tag/2x/)
- [Cyber Solutions](https://www.thetmca.com/tag/cyber-solutions/)
- [Priva](https://www.thetmca.com/tag/priva/)
- [security interest](https://www.thetmca.com/tag/security-interest/)
- [chapter 11](https://www.thetmca.com/tag/chapter-11/)
- [startup](https://www.thetmca.com/tag/startup/)
- [license agreement](https://www.thetmca.com/tag/license-agreement/)
- [US](https://www.thetmca.com/tag/us/)
- [Republican National Convention](https://www.thetmca.com/tag/republican-national-convention/)
- [Donald J. Trump](https://www.thetmca.com/tag/donald-j-trump/)
- [Melania Trump](https://www.thetmca.com/tag/melania-trump/)
- [Michelle Obama](https://www.thetmca.com/tag/michelle-obama/)
- [Avatar](https://www.thetmca.com/tag/avatar/)
- [anti-SLAPP](https://www.thetmca.com/tag/anti-slapp/)
- [James Cameron](https://www.thetmca.com/tag/james-cameron/)
- [Shelia the Warrior](https://www.thetmca.com/tag/shelia-the-warrior/)
- [Trademark Trial and Appeal Board](https://www.thetmca.com/tag/trademark-trial-and-appeal-board/)
- [Controlled Substances Act (CSA)](https://www.thetmca.com/tag/controlled-substances-act-csa/)
- [Marijuana](https://www.thetmca.com/tag/marijuana/)
- [de facto merger doctrine](https://www.thetmca.com/tag/de-facto-merger-doctrine/)
- [Assignment and Assumption Agreement](https://www.thetmca.com/tag/assignment-and-assumption-agreement/)
- [successor liability](https://www.thetmca.com/tag/successor-liability/)
- [Dirty Dancing](https://www.thetmca.com/tag/dirty-dancing/)
- [Patrick Swayze](https://www.thetmca.com/tag/patrick-swayze/)
- [Jennifer Grey](https://www.thetmca.com/tag/jennifer-grey/)
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- [Rule 40](https://www.thetmca.com/tag/rule-40/)
- [ambush marketing](https://www.thetmca.com/tag/ambush-marketing/)
- [photographs](https://www.thetmca.com/tag/photographs/)
- [gossip cop](https://www.thetmca.com/tag/gossip-cop/)
- [Microsoft-Ireland](https://www.thetmca.com/tag/microsoft-ireland/)
- [Marvin Gaye](https://www.thetmca.com/tag/marvin-gaye/)
- [Thinking Out Loud](https://www.thetmca.com/tag/thinking-out-loud/)
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- [Lenz](https://www.thetmca.com/tag/lenz/)
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- [Section 43(a)](https://www.thetmca.com/tag/section-43a/)
- [Trump Hotel](https://www.thetmca.com/tag/trump-hotel/)
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- [hyperlink](https://www.thetmca.com/tag/hyperlink/)
- [secondary infringement](https://www.thetmca.com/tag/secondary-infringement/)
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- [Usain Bolt](https://www.thetmca.com/tag/usain-bolt/)
- [bolting](https://www.thetmca.com/tag/bolting/)
- [Sid Bernstein](https://www.thetmca.com/tag/sid-bernstein/)
- [Beatles](https://www.thetmca.com/tag/beatles/)
- [Eight Days A Week](https://www.thetmca.com/tag/eight-days-a-week/)
- [Ron Howard](https://www.thetmca.com/tag/ron-howard/)
- [The Beatles at Shea Stadium](https://www.thetmca.com/tag/the-beatles-at-shea-stadium/)
- [Copyright Office](https://www.thetmca.com/tag/copyright-office/)
- [ClearBlue](https://www.thetmca.com/tag/clearblue/)
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- [SPD Swiss Precision Diagnostics GMBH](https://www.thetmca.com/tag/spd-swiss-precision-diagnostics-gmbh/)
- [POM Wonderful](https://www.thetmca.com/tag/pom-wonderful/)
- [Coca-Cola](https://www.thetmca.com/tag/coca-cola/)
- [Zara](https://www.thetmca.com/tag/zara/)
- [Zara USA](https://www.thetmca.com/tag/zara-usa/)
- [Unfair Competition Law](https://www.thetmca.com/tag/unfair-competition-law/)
- [LVL XIII](https://www.thetmca.com/tag/lvl-xiii/)
- [Dyson](https://www.thetmca.com/tag/dyson/)
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- [Skittles](https://www.thetmca.com/tag/skittles/)
- [Morinaga Nyugyo Kabushiki Kaisha](https://www.thetmca.com/tag/morinaga-nyugyo-kabushiki-kaisha/)
- [Mount Rainier Coffee Company](https://www.thetmca.com/tag/mount-rainier-coffee-company/)
- [Supplemental Register](https://www.thetmca.com/tag/supplemental-register/)
- [South Texas College of Law](https://www.thetmca.com/tag/south-texas-college-of-law/)
- [University of Houston](https://www.thetmca.com/tag/university-of-houston/)
- [Houston College of Law](https://www.thetmca.com/tag/houston-college-of-law/)
- [Digital Millennium Copyright Act](https://www.thetmca.com/tag/digital-millennium-copyright-act/)
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- [plumbob](https://www.thetmca.com/tag/plumbob/)
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- [data share](https://www.thetmca.com/tag/data-share/)
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- [Cybersecurity Law of the People’s Republic of China](https://www.thetmca.com/tag/cybersecurity-law-of-the-peoples-republic-of-china/)
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- [Dropbox](https://www.thetmca.com/tag/dropbox/)
- [Dropbox Inc.](https://www.thetmca.com/tag/dropbox-inc/)
- [Thru](https://www.thetmca.com/tag/thru/)
- [Thru Inc.](https://www.thetmca.com/tag/thru-inc/)
- [laches](https://www.thetmca.com/tag/laches/)
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- [TC Heartland](https://www.thetmca.com/tag/tc-heartland/)
- [Kraft Foods](https://www.thetmca.com/tag/kraft-foods/)
- [Third Circuit](https://www.thetmca.com/tag/third-circuit/)
- [Usher](https://www.thetmca.com/tag/usher/)
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- [US Patent and Trademark Office](https://www.thetmca.com/tag/us-patent-and-trademark-office/)
- [klingons](https://www.thetmca.com/tag/klingons/)
- [trekkie](https://www.thetmca.com/tag/trekkie/)
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- [Mr. Krabs](https://www.thetmca.com/tag/mr-krabs/)
- [Squidward](https://www.thetmca.com/tag/squidward/)
- [Bikini Bottom](https://www.thetmca.com/tag/bikini-bottom/)
- [Patrick Star](https://www.thetmca.com/tag/patrick-star/)
- [Chum Bucket](https://www.thetmca.com/tag/chum-bucket/)
- [Unified Patent Court](https://www.thetmca.com/tag/unified-patent-court/)
- [Martin Luther King Jr.](https://www.thetmca.com/tag/martin-luther-king-jr/)
- [MLK](https://www.thetmca.com/tag/mlk/)
- [I Have A Dream](https://www.thetmca.com/tag/i-have-a-dream/)
- [EMI Publishing](https://www.thetmca.com/tag/emi-publishing/)
- [MLK Estate](https://www.thetmca.com/tag/mlk-estate/)
- [Consumer Review Fairness Act](https://www.thetmca.com/tag/consumer-review-fairness-act/)
- [Gag Clauses](https://www.thetmca.com/tag/gag-clauses/)
- [Better Business Bureau](https://www.thetmca.com/tag/better-business-bureau/)
- [German Copyright Law](https://www.thetmca.com/tag/german-copyright-law/)
- [Benthin factors](https://www.thetmca.com/tag/benthin-factors/)
- [ADLON](https://www.thetmca.com/tag/adlon/)
- [Surname](https://www.thetmca.com/tag/surname/)
- [Kroma Makeup](https://www.thetmca.com/tag/kroma-makeup/)
- [Boldface Licensing](https://www.thetmca.com/tag/boldface-licensing/)
- [The Kardashians](https://www.thetmca.com/tag/the-kardashians/)
- [Lee Tillet](https://www.thetmca.com/tag/lee-tillet/)
- [The Eleventh Circuit](https://www.thetmca.com/tag/the-eleventh-circuit/)
- [arbitration clause](https://www.thetmca.com/tag/arbitration-clause/)
- [Procter & Gamble](https://www.thetmca.com/tag/procter-gamble/)
- [Bath & Body Works](https://www.thetmca.com/tag/bath-body-works/)
- [implied claims](https://www.thetmca.com/tag/implied-claims/)
- [NCAA](https://www.thetmca.com/tag/ncaa/)
- [College Basketball](https://www.thetmca.com/tag/college-basketball/)
- [The Emerald City](https://www.thetmca.com/tag/the-emerald-city/)
- [Emerald Cities](https://www.thetmca.com/tag/emerald-cities/)
- [intent-to-use](https://www.thetmca.com/tag/intent-to-use/)
- [trademark assignment](https://www.thetmca.com/tag/trademark-assignment/)
- [ITU](https://www.thetmca.com/tag/itu/)
- [Kelly Services](https://www.thetmca.com/tag/kelly-services/)
- [WORKWIRE](https://www.thetmca.com/tag/workwire/)
- [Creative Harbor](https://www.thetmca.com/tag/creative-harbor/)
- [bona fide intent to use](https://www.thetmca.com/tag/bona-fide-intent-to-use/)
- [NetJets](https://www.thetmca.com/tag/netjets/)
- [IntelliJet](https://www.thetmca.com/tag/intellijet/)
- [Void Ab Initio](https://www.thetmca.com/tag/void-ab-initio/)
- [Sixth Circuit](https://www.thetmca.com/tag/sixth-circuit/)
- [incontestable](https://www.thetmca.com/tag/incontestable/)
- [cancellation](https://www.thetmca.com/tag/cancellation/)
- [FedEx Office](https://www.thetmca.com/tag/fedex-office/)
- [Great Minds](https://www.thetmca.com/tag/great-minds/)
- [Creative Commons](https://www.thetmca.com/tag/creative-commons/)
- [Eureka Math](https://www.thetmca.com/tag/eureka-math/)
- [US Supreme Court](https://www.thetmca.com/tag/us-supreme-court/)
- [Modern Appealing Clothing](https://www.thetmca.com/tag/modern-appealing-clothing/)
- [Ivanka Trump Marks LLC](https://www.thetmca.com/tag/ivanka-trump-marks-llc/)
- [Ivanka Trump](https://www.thetmca.com/tag/ivanka-trump/)
- [Nordstrom](https://www.thetmca.com/tag/nordstrom/)
- [Kellyanne Conway](https://www.thetmca.com/tag/kellyanne-conway/)
- [Waymo](https://www.thetmca.com/tag/waymo/)
- [Uber](https://www.thetmca.com/tag/uber/)
- [self-driving cars](https://www.thetmca.com/tag/self-driving-cars/)
- [LiDAR](https://www.thetmca.com/tag/lidar/)
- [Raging Bull](https://www.thetmca.com/tag/raging-bull/)
- [SCA Hygiene](https://www.thetmca.com/tag/sca-hygiene/)
- [BMG](https://www.thetmca.com/tag/bmg/)
- [Windstream](https://www.thetmca.com/tag/windstream/)
- [declaratory judgment](https://www.thetmca.com/tag/declaratory-judgment/)
- [Advertising Standards Authority](https://www.thetmca.com/tag/advertising-standards-authority/)
- [Sheikhbeauty](https://www.thetmca.com/tag/sheikhbeauty/)
- [Flat Tummy Tea](https://www.thetmca.com/tag/flat-tummy-tea/)
- [Covertech Fabricating](https://www.thetmca.com/tag/covertech-fabricating/)
- [TVM Building Products](https://www.thetmca.com/tag/tvm-building-products/)
- [Exclusive Distributor](https://www.thetmca.com/tag/exclusive-distributor/)
- [Trademark Ownership](https://www.thetmca.com/tag/trademark-ownership/)
- [Marijuanaville](https://www.thetmca.com/tag/marijuanaville/)
- [Margaritaville](https://www.thetmca.com/tag/margaritaville/)
- [Visual Artists Rights Act of 1990](https://www.thetmca.com/tag/visual-artists-rights-act-of-1990/)
- [Fearless Girl](https://www.thetmca.com/tag/fearless-girl/)
- [Arturo Di Modica](https://www.thetmca.com/tag/arturo-di-modica/)
- [Charging Bull](https://www.thetmca.com/tag/charging-bull/)
- [National Union Fire Insurance](https://www.thetmca.com/tag/national-union-fire-insurance/)
- [Zillow](https://www.thetmca.com/tag/zillow/)
- [VHT](https://www.thetmca.com/tag/vht/)
- [hast](https://www.thetmca.com/tag/hast/)
- [IP rights](https://www.thetmca.com/tag/ip-rights/)
- [Parliament](https://www.thetmca.com/tag/parliament/)
- [cease and desist](https://www.thetmca.com/tag/cease-and-desist/)
- [genericide](https://www.thetmca.com/tag/genericide/)
- [Lexmark](https://www.thetmca.com/tag/lexmark/)
- [Impression Product](https://www.thetmca.com/tag/impression-product/)
- [first-sale doctrine](https://www.thetmca.com/tag/first-sale-doctrine/)
- [exhaustion](https://www.thetmca.com/tag/exhaustion/)
- [TC Heartland LLC](https://www.thetmca.com/tag/tc-heartland-llc/)
- [Kraft Foods Group Brands LLC](https://www.thetmca.com/tag/kraft-foods-group-brands-llc/)
- [forum shopping](https://www.thetmca.com/tag/forum-shopping/)
- [Purple Rain](https://www.thetmca.com/tag/purple-rain/)
- [Andy Warhol](https://www.thetmca.com/tag/andy-warhol/)
- [Diddy](https://www.thetmca.com/tag/diddy/)
- [Bad Boy Records](https://www.thetmca.com/tag/bad-boy-records/)
- [Mo Money Mo Problems](https://www.thetmca.com/tag/mo-money-mo-problems/)
- [Matthew McDermott](https://www.thetmca.com/tag/matthew-mcdermott/)
- [Kim Kardashian](https://www.thetmca.com/tag/kim-kardashian/)
- [Harry Styles](https://www.thetmca.com/tag/harry-styles/)
- [One Direction](https://www.thetmca.com/tag/one-direction/)
- [Ezequiel Scagnetti](https://www.thetmca.com/tag/ezequiel-scagnetti/)
- [photographers](https://www.thetmca.com/tag/photographers/)
- [commercial speech](https://www.thetmca.com/tag/commercial-speech/)
- [trampolines](https://www.thetmca.com/tag/trampolines/)
- [Infinity](https://www.thetmca.com/tag/infinity/)
- [Olympus Pro](https://www.thetmca.com/tag/olympus-pro/)
- [Trampoline Mom](https://www.thetmca.com/tag/trampoline-mom/)
- [U.S. Court of Appeals](https://www.thetmca.com/tag/u-s-court-of-appeals/)
- [AVSMR](https://www.thetmca.com/tag/avsmr/)
- [athletic animals](https://www.thetmca.com/tag/athletic-animals/)
- [VSO](https://www.thetmca.com/tag/vso/)
- [Kiss](https://www.thetmca.com/tag/kiss/)
- [Gene Simmons](https://www.thetmca.com/tag/gene-simmons/)
- [Devil Horns](https://www.thetmca.com/tag/devil-horns/)
- [Mash-up](https://www.thetmca.com/tag/mash-up/)
- [Fame](https://www.thetmca.com/tag/fame/)
- [Likelihood of Confusion](https://www.thetmca.com/tag/likelihood-of-confusion/)
- [INSIGNIA](https://www.thetmca.com/tag/insignia/)
- [Fairmont](https://www.thetmca.com/tag/fairmont/)
- [nonuse](https://www.thetmca.com/tag/nonuse/)
- [Notice of Proposed Rulemaking](https://www.thetmca.com/tag/notice-of-proposed-rulemaking/)
- [Commerce Clause](https://www.thetmca.com/tag/commerce-clause/)
- [Wickard v. Filburn](https://www.thetmca.com/tag/wickard-v-filburn/)
- [Christian Faith Fellowship Church v. Adidas AG](https://www.thetmca.com/tag/christian-faith-fellowship-church-v-adidas-ag/)
- [Gonzales v. Raich](https://www.thetmca.com/tag/gonzales-v-raich/)
- [Taylor v. US](https://www.thetmca.com/tag/taylor-v-us/)
- [ACPA](https://www.thetmca.com/tag/acpa/)
- [Tour de France](https://www.thetmca.com/tag/tour-de-france/)
- [Greg LeMond](https://www.thetmca.com/tag/greg-lemond/)
- [Grail](https://www.thetmca.com/tag/grail/)
- [URS](https://www.thetmca.com/tag/urs/)
- [domain name](https://www.thetmca.com/tag/domain-name/)
- [TESS](https://www.thetmca.com/tag/tess/)
- [Crescendo Designs](https://www.thetmca.com/tag/crescendo-designs/)
- [Yelp](https://www.thetmca.com/tag/yelp/)
- [Techovate v Fanelli](https://www.thetmca.com/tag/techovate-v-fanelli/)
- [online review](https://www.thetmca.com/tag/online-review/)
- [remote geographic user](https://www.thetmca.com/tag/remote-geographic-user/)
- [Tea Rose](https://www.thetmca.com/tag/tea-rose/)
- [Stone Creek](https://www.thetmca.com/tag/stone-creek/)
- [Tea Rose-Rectanus doctrine](https://www.thetmca.com/tag/tea-rose-rectanus-doctrine/)
- [Tupac](https://www.thetmca.com/tag/tupac/)
- [Kylie Jenner](https://www.thetmca.com/tag/kylie-jenner/)
- [Kendall Jenner](https://www.thetmca.com/tag/kendall-jenner/)
- [Pynk](https://www.thetmca.com/tag/pynk/)
- [BleuLife](https://www.thetmca.com/tag/bleulife/)
- [statutory damages](https://www.thetmca.com/tag/statutory-damages/)
- [Adidas](https://www.thetmca.com/tag/adidas/)
- [Skechers](https://www.thetmca.com/tag/skechers/)
- [Stan Smith](https://www.thetmca.com/tag/stan-smith/)
- [Onix](https://www.thetmca.com/tag/onix/)
- [CLASSICS ACT](https://www.thetmca.com/tag/classics-act/)
- [Fair Play Fair Pay Act](https://www.thetmca.com/tag/fair-play-fair-pay-act/)
- [music performance royalties](https://www.thetmca.com/tag/music-performance-royalties/)
- [sound recordings](https://www.thetmca.com/tag/sound-recordings/)
- [Compensating Legacy Artists for their Songs](https://www.thetmca.com/tag/compensating-legacy-artists-for-their-songs/)
- [NASCAR](https://www.thetmca.com/tag/nascar/)
- [Earnhardt](https://www.thetmca.com/tag/earnhardt/)
- [Dale Earnhardt](https://www.thetmca.com/tag/dale-earnhardt/)
- [Madden Football](https://www.thetmca.com/tag/madden-football/)
- [Antonick](https://www.thetmca.com/tag/antonick/)
- [Electronic Arts Inc.](https://www.thetmca.com/tag/electronic-arts-inc/)
- [Derivative Work](https://www.thetmca.com/tag/derivative-work/)
- [BMG Rights Management](https://www.thetmca.com/tag/bmg-rights-management/)
- [Atlantic Recording](https://www.thetmca.com/tag/atlantic-recording/)
- [Chris Brown](https://www.thetmca.com/tag/chris-brown/)
- [Came to Do](https://www.thetmca.com/tag/came-to-do/)
- [Post to Be](https://www.thetmca.com/tag/post-to-be/)
- [warning letters](https://www.thetmca.com/tag/warning-letters/)
- [hiQ](https://www.thetmca.com/tag/hiq/)
- [Dr. Phil](https://www.thetmca.com/tag/dr-phil/)
- [EDTX](https://www.thetmca.com/tag/edtx/)
- [acquired distinctiveness](https://www.thetmca.com/tag/acquired-distinctiveness/)
- [TTAB Appeal](https://www.thetmca.com/tag/ttab-appeal/)
- [genericness](https://www.thetmca.com/tag/genericness/)
- [International Trademark Association](https://www.thetmca.com/tag/international-trademark-association/)
- [Canadian Intellectual Property Office](https://www.thetmca.com/tag/canadian-intellectual-property-office/)
- [Earnhardt v. Earnhardt](https://www.thetmca.com/tag/earnhardt-v-earnhardt/)
- [TMEP](https://www.thetmca.com/tag/tmep/)
- [Retweet](https://www.thetmca.com/tag/retweet/)
- [Dr. Bell](https://www.thetmca.com/tag/dr-bell/)
- [Kings College](https://www.thetmca.com/tag/kings-college/)
- [Jeffery Knarr](https://www.thetmca.com/tag/jeffery-knarr/)
- [Coty](https://www.thetmca.com/tag/coty/)
- [Excell Brands](https://www.thetmca.com/tag/excell-brands/)
- [Calvin Klein](https://www.thetmca.com/tag/calvin-klein/)
- [accounting of profits](https://www.thetmca.com/tag/accounting-of-profits/)
- [Benjamin Moore & Co.](https://www.thetmca.com/tag/benjamin-moore-co/)
- [Moonlight Slumber LLC](https://www.thetmca.com/tag/moonlight-slumber-llc/)
- [certification marks](https://www.thetmca.com/tag/certification-marks/)
- [Whoomp! (There It Is)](https://www.thetmca.com/tag/whoomp-there-it-is/)
- [Tag Team](https://www.thetmca.com/tag/tag-team/)
- [Bellmark Records](https://www.thetmca.com/tag/bellmark-records/)
- [TD Ameritrade](https://www.thetmca.com/tag/td-ameritrade/)
- [Lions Gate Entertainment](https://www.thetmca.com/tag/lions-gate-entertainment/)
- [Dastar](https://www.thetmca.com/tag/dastar/)
- [Tidal Music](https://www.thetmca.com/tag/tidal-music/)
- [Rose Digital Entertainment](https://www.thetmca.com/tag/rose-digital-entertainment/)
- [use in commerce](https://www.thetmca.com/tag/use-in-commerce/)
- [James Castle](https://www.thetmca.com/tag/james-castle/)
- [Picasso](https://www.thetmca.com/tag/picasso/)
- [Warhol](https://www.thetmca.com/tag/warhol/)
- [Dali](https://www.thetmca.com/tag/dali/)
- [Idaho](https://www.thetmca.com/tag/idaho/)
- [Famous Potatoes](https://www.thetmca.com/tag/famous-potatoes/)
- [UGC](https://www.thetmca.com/tag/ugc/)
- [Briskman](https://www.thetmca.com/tag/briskman/)
- [free speech](https://www.thetmca.com/tag/free-speech/)
- [Underwriters Laboratories](https://www.thetmca.com/tag/underwriters-laboratories/)
- [Moreno](https://www.thetmca.com/tag/moreno/)
- [CASANOVA](https://www.thetmca.com/tag/casanova/)
- [boxing gloves](https://www.thetmca.com/tag/boxing-gloves/)
- [Pro Boxing Supplies](https://www.thetmca.com/tag/pro-boxing-supplies/)
- [Columbia Sportswear](https://www.thetmca.com/tag/columbia-sportswear/)
- [Seirus Innovative](https://www.thetmca.com/tag/seirus-innovative/)
- [HeatWave gear](https://www.thetmca.com/tag/heatwave-gear/)
- [ANA](https://www.thetmca.com/tag/ana/)
- [BAA](https://www.thetmca.com/tag/baa/)
- [#MarketingLaw](https://www.thetmca.com/tag/marketinglaw/)
- [#AdLaw](https://www.thetmca.com/tag/adlaw/)
- [chatbots](https://www.thetmca.com/tag/chatbots/)
- [negative option](https://www.thetmca.com/tag/negative-option/)
- [Tarr Inc.](https://www.thetmca.com/tag/tarr-inc/)
- [Fabletics](https://www.thetmca.com/tag/fabletics/)
- [Doug the Pug](https://www.thetmca.com/tag/doug-the-pug/)
- [8-Bit Aleworks](https://www.thetmca.com/tag/8-bit-aleworks/)
- [8 bit Brewing Company](https://www.thetmca.com/tag/8-bit-brewing-company/)
- [Bay State Brewing Co.](https://www.thetmca.com/tag/bay-state-brewing-co/)
- [Consent Agreements](https://www.thetmca.com/tag/consent-agreements/)
- [5Pointz](https://www.thetmca.com/tag/5pointz/)
- [recognized stature](https://www.thetmca.com/tag/recognized-stature/)
- [graffiti art](https://www.thetmca.com/tag/graffiti-art/)
- [Selfie Certification](https://www.thetmca.com/tag/selfie-certification/)
- [NextGen Nutritionals](https://www.thetmca.com/tag/nextgen-nutritionals/)
- [Certified Ethical Site](https://www.thetmca.com/tag/certified-ethical-site/)
- [Empire](https://www.thetmca.com/tag/empire/)
- [Rogers test](https://www.thetmca.com/tag/rogers-test/)
- [Rogers v. Grimaldi](https://www.thetmca.com/tag/rogers-v-grimaldi/)
- [expressive work](https://www.thetmca.com/tag/expressive-work/)
- [public shaming](https://www.thetmca.com/tag/public-shaming/)
- [Off-Duty Conduct Laws](https://www.thetmca.com/tag/off-duty-conduct-laws/)
- [Unicolors](https://www.thetmca.com/tag/unicolors/)
- [H&M](https://www.thetmca.com/tag/hm/)
- [substantial similarity](https://www.thetmca.com/tag/substantial-similarity/)
- [textile designs](https://www.thetmca.com/tag/textile-designs/)
- [independent creation](https://www.thetmca.com/tag/independent-creation/)
- [willful infringement](https://www.thetmca.com/tag/willful-infringement/)
- [San Diego Comic-Con](https://www.thetmca.com/tag/san-diego-comic-con/)
- [Comic Con International](https://www.thetmca.com/tag/comic-con-international/)
- [Champagne](https://www.thetmca.com/tag/champagne/)
- [sparkling wine](https://www.thetmca.com/tag/sparkling-wine/)
- [Prosecco](https://www.thetmca.com/tag/prosecco/)
- [Cava](https://www.thetmca.com/tag/cava/)
- [Geographic Indicator](https://www.thetmca.com/tag/geographic-indicator/)
- [Starbucks](https://www.thetmca.com/tag/starbucks/)
- [latte](https://www.thetmca.com/tag/latte/)
- [foam](https://www.thetmca.com/tag/foam/)
- [milk foam](https://www.thetmca.com/tag/milk-foam/)
- [common sense](https://www.thetmca.com/tag/common-sense/)
- [LV](https://www.thetmca.com/tag/lv/)
- [My Other Bag Inc.](https://www.thetmca.com/tag/my-other-bag-inc/)
- [MOB](https://www.thetmca.com/tag/mob/)
- [Spanx](https://www.thetmca.com/tag/spanx/)
- [R and A Synergy](https://www.thetmca.com/tag/r-and-a-synergy/)
- [Sleevey Wonders](https://www.thetmca.com/tag/sleevey-wonders/)
- [fashion design](https://www.thetmca.com/tag/fashion-design/)
- [Bollman Hat Company](https://www.thetmca.com/tag/bollman-hat-company/)
- [Made In USA](https://www.thetmca.com/tag/made-in-usa/)
- [American Made Matters - Choose American seal](https://www.thetmca.com/tag/american-made-matters-choose-american-seal/)
- [Gibson Brands](https://www.thetmca.com/tag/gibson-brands/)
- [Funko](https://www.thetmca.com/tag/funko/)
- [Pitney Bowes](https://www.thetmca.com/tag/pitney-bowes/)
- [specimens of use](https://www.thetmca.com/tag/specimens-of-use/)
- [Statements of Use](https://www.thetmca.com/tag/statements-of-use/)
- [ex parte appeal](https://www.thetmca.com/tag/ex-parte-appeal/)
- [Pyeongchang](https://www.thetmca.com/tag/pyeongchang/)
- [TeamUSA](https://www.thetmca.com/tag/teamusa/)
- [Iowa State University](https://www.thetmca.com/tag/iowa-state-university/)
- [ISU](https://www.thetmca.com/tag/isu/)
- [NORML](https://www.thetmca.com/tag/norml/)
- [8th circuit](https://www.thetmca.com/tag/8th-circuit/)
- [ICO](https://www.thetmca.com/tag/ico/)
- [blockchain](https://www.thetmca.com/tag/blockchain/)
- [CSA](https://www.thetmca.com/tag/csa/)
- [California Attorney General](https://www.thetmca.com/tag/california-attorney-general/)
- [#diversity](https://www.thetmca.com/tag/diversity/)
- [Trade secret](https://www.thetmca.com/tag/trade-secret/)
- [AI](https://www.thetmca.com/tag/ai/)
- [musical compositions](https://www.thetmca.com/tag/musical-compositions/)
- [music licensing](https://www.thetmca.com/tag/music-licensing/)
- [Taylor Swift](https://www.thetmca.com/tag/taylor-swift/)
- [Shake it Off](https://www.thetmca.com/tag/shake-it-off/)
- [Short phrases](https://www.thetmca.com/tag/short-phrases/)
- [song lyrics](https://www.thetmca.com/tag/song-lyrics/)
- [Morrisons](https://www.thetmca.com/tag/morrisons/)
- [Carphone Warehouse](https://www.thetmca.com/tag/carphone-warehouse/)
- [Woodgate & Clark](https://www.thetmca.com/tag/woodgate-clark/)
- [Laudatory Terms](https://www.thetmca.com/tag/laudatory-terms/)
- [New York Court of Appeals](https://www.thetmca.com/tag/new-york-court-of-appeals/)
- [Forman](https://www.thetmca.com/tag/forman/)
- [Henkin](https://www.thetmca.com/tag/henkin/)
- [Abiodun Oyewole](https://www.thetmca.com/tag/abiodun-oyewole/)
- [Notorious B.I.G.](https://www.thetmca.com/tag/notorious-b-i-g/)
- [Biggy Smalls](https://www.thetmca.com/tag/biggy-smalls/)
- [Rita Ora](https://www.thetmca.com/tag/rita-ora/)
- [.app gTLD](https://www.thetmca.com/tag/app-gtld/)
- [New gTLD Program](https://www.thetmca.com/tag/new-gtld-program/)
- [Blurred Lines](https://www.thetmca.com/tag/blurred-lines/)
- [player piano](https://www.thetmca.com/tag/player-piano/)
- [satellite radio](https://www.thetmca.com/tag/satellite-radio/)
- [Music Modernization Act](https://www.thetmca.com/tag/music-modernization-act/)
- [digital music](https://www.thetmca.com/tag/digital-music/)
- [Assembled in the USA](https://www.thetmca.com/tag/assembled-in-the-usa/)
- [In Re Brown](https://www.thetmca.com/tag/in-re-brown/)
- [Gray v. Daffy Dan's Bargaintown](https://www.thetmca.com/tag/gray-v-daffy-dans-bargaintown/)
- [FX](https://www.thetmca.com/tag/fx/)
- [de Havilland](https://www.thetmca.com/tag/de-havilland/)
- [Fued](https://www.thetmca.com/tag/fued/)
- [Lindsay Lohan](https://www.thetmca.com/tag/lindsay-lohan/)
- [Grand Theft Auto](https://www.thetmca.com/tag/grand-theft-auto/)
- [New England Patriots](https://www.thetmca.com/tag/new-england-patriots/)
- [the Brady Photo](https://www.thetmca.com/tag/the-brady-photo/)
- [Goldman](https://www.thetmca.com/tag/goldman/)
- [Lizard Skins](https://www.thetmca.com/tag/lizard-skins/)
- [Hot Glove](https://www.thetmca.com/tag/hot-glove/)
- [bat tape](https://www.thetmca.com/tag/bat-tape/)
- [functionality](https://www.thetmca.com/tag/functionality/)
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- [Magnuson-Moss](https://www.thetmca.com/tag/magnuson-moss/)
- [Magnuson-Moss Warranty Act](https://www.thetmca.com/tag/magnuson-moss-warranty-act/)
- [warranties](https://www.thetmca.com/tag/warranties/)
- [DRK Photo](https://www.thetmca.com/tag/drk-photo/)
- [McGraw Hill](https://www.thetmca.com/tag/mcgraw-hill/)
- [stock photo](https://www.thetmca.com/tag/stock-photo/)
- [photography](https://www.thetmca.com/tag/photography/)
- [Copyright Act of 1976](https://www.thetmca.com/tag/copyright-act-of-1976/)
- [Anastasia](https://www.thetmca.com/tag/anastasia/)
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- [scenes a faire](https://www.thetmca.com/tag/scenes-a-faire/)
- [fastest growing](https://www.thetmca.com/tag/fastest-growing/)
- [claim substantiation](https://www.thetmca.com/tag/claim-substantiation/)
- [Serial](https://www.thetmca.com/tag/serial/)
- [dde facto secondary meaning](https://www.thetmca.com/tag/dde-facto-secondary-meaning/)
- [blanket licenses](https://www.thetmca.com/tag/blanket-licenses/)
- [royalty rights](https://www.thetmca.com/tag/royalty-rights/)
- [TM Symbol](https://www.thetmca.com/tag/tm-symbol/)
- [SM symbol](https://www.thetmca.com/tag/sm-symbol/)
- [Multi-Media](https://www.thetmca.com/tag/multi-media/)
- [Yazhong](https://www.thetmca.com/tag/yazhong/)
- [GIDGET](https://www.thetmca.com/tag/gidget/)
- [Dr. Drai](https://www.thetmca.com/tag/dr-drai/)
- [False Connection](https://www.thetmca.com/tag/false-connection/)
- [Mexico Industrial Property Law](https://www.thetmca.com/tag/mexico-industrial-property-law/)
- [Tempnology](https://www.thetmca.com/tag/tempnology/)
- [rejection](https://www.thetmca.com/tag/rejection/)
- [Section 365(a)](https://www.thetmca.com/tag/section-365a/)
- [irreparable harm](https://www.thetmca.com/tag/irreparable-harm/)
- [preliminary injunction](https://www.thetmca.com/tag/preliminary-injunction/)
- [Trump Place](https://www.thetmca.com/tag/trump-place/)
- [200 Riverside](https://www.thetmca.com/tag/200-riverside/)
- [contract](https://www.thetmca.com/tag/contract/)
- [INTA](https://www.thetmca.com/tag/inta/)
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- [#INTA2018](https://www.thetmca.com/tag/inta2018/)
- [morality clauses](https://www.thetmca.com/tag/morality-clauses/)
- [FUCT](https://www.thetmca.com/tag/fuct/)
- [Matal v. Tam](https://www.thetmca.com/tag/matal-v-tam/)
- [Brunetti](https://www.thetmca.com/tag/brunetti/)
- [scandalousness](https://www.thetmca.com/tag/scandalousness/)
- [Scandalous Marks](https://www.thetmca.com/tag/scandalous-marks/)
- [BigCommerce Inc.](https://www.thetmca.com/tag/bigcommerce-inc/)
- [Eastern District of Texas](https://www.thetmca.com/tag/eastern-district-of-texas/)
- [principal place of business](https://www.thetmca.com/tag/principal-place-of-business/)
- [Chinese People’s Congress](https://www.thetmca.com/tag/chinese-peoples-congress/)
- [Amended Anti-Unfair Competition Law](https://www.thetmca.com/tag/amended-anti-unfair-competition-law/)
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- [NY State AG](https://www.thetmca.com/tag/ny-state-ag/)
- [Association of National Advertisers](https://www.thetmca.com/tag/association-of-national-advertisers/)
- [Digital Single Market Directive](https://www.thetmca.com/tag/digital-single-market-directive/)
- [online piracy](https://www.thetmca.com/tag/online-piracy/)
- [CJEU](https://www.thetmca.com/tag/cjeu/)
- [ULD](https://www.thetmca.com/tag/uld/)
- [Wirtschafts Academy](https://www.thetmca.com/tag/wirtschafts-academy/)
- [WHOIS](https://www.thetmca.com/tag/whois/)
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- [Grumpy Cat](https://www.thetmca.com/tag/grumpy-cat/)
- [Grenade Beverages](https://www.thetmca.com/tag/grenade-beverages/)
- [American Flag](https://www.thetmca.com/tag/american-flag/)
- [United States Flag Code](https://www.thetmca.com/tag/united-states-flag-code/)
- [4 USC 1](https://www.thetmca.com/tag/4-usc-1/)
- [Salad Spinner](https://www.thetmca.com/tag/salad-spinner/)
- [Zyliss](https://www.thetmca.com/tag/zyliss/)
- [OXO](https://www.thetmca.com/tag/oxo/)
- [superiority claims](https://www.thetmca.com/tag/superiority-claims/)
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- [California Consumer Privacy Act of 2018](https://www.thetmca.com/tag/california-consumer-privacy-act-of-2018/)
- [Kavanaugh](https://www.thetmca.com/tag/kavanaugh/)
- [EUTM](https://www.thetmca.com/tag/eutm/)
- [Community Registered Designs](https://www.thetmca.com/tag/community-registered-designs/)
- [grafitti](https://www.thetmca.com/tag/grafitti/)
- [AWCPA](https://www.thetmca.com/tag/awcpa/)
- [Cowboy Bourbon](https://www.thetmca.com/tag/cowboy-bourbon/)
- [Nielsen](https://www.thetmca.com/tag/nielsen/)
- [Rule 10b-5](https://www.thetmca.com/tag/rule-10b-5/)
- [ROGUE](https://www.thetmca.com/tag/rogue/)
- [OBC](https://www.thetmca.com/tag/obc/)
- [Oregon Brewing Company](https://www.thetmca.com/tag/oregon-brewing-company/)
- [Excelled](https://www.thetmca.com/tag/excelled/)
- [Falkner](https://www.thetmca.com/tag/falkner/)
- [General Motors](https://www.thetmca.com/tag/general-motors/)
- [European Union’s General Data Protection Regulation](https://www.thetmca.com/tag/european-unions-general-data-protection-regulation/)
- [Semiconductor Chip Protection Act of 1984](https://www.thetmca.com/tag/semiconductor-chip-protection-act-of-1984/)
- [SCPA](https://www.thetmca.com/tag/scpa/)
- [Brooktree Corp](https://www.thetmca.com/tag/brooktree-corp/)
- [Semiconductor](https://www.thetmca.com/tag/semiconductor/)
- [Directive on Copyright in the Digital Market](https://www.thetmca.com/tag/directive-on-copyright-in-the-digital-market/)
- [EU Parliament](https://www.thetmca.com/tag/eu-parliament/)
- [US policy](https://www.thetmca.com/tag/us-policy/)
- [The Cyber Strategy](https://www.thetmca.com/tag/the-cyber-strategy/)
- [MMA](https://www.thetmca.com/tag/mma/)
- [ICC Marketing Codes](https://www.thetmca.com/tag/icc-marketing-codes/)
- [#AmericanMade](https://www.thetmca.com/tag/americanmade/)
- [Consumer Reviews](https://www.thetmca.com/tag/consumer-reviews/)
- [#NAD2018](https://www.thetmca.com/tag/nad2018/)
- [#HonestAds](https://www.thetmca.com/tag/honestads/)
- [Madrid Protocol](https://www.thetmca.com/tag/madrid-protocol/)
- [Section 66(a)](https://www.thetmca.com/tag/section-66a/)
- [trademark opposition](https://www.thetmca.com/tag/trademark-opposition/)
- [Serralles](https://www.thetmca.com/tag/serralles/)
- [common law rights](https://www.thetmca.com/tag/common-law-rights/)
- [ESTTA](https://www.thetmca.com/tag/estta/)
- [General Data Protection Regulation](https://www.thetmca.com/tag/general-data-protection-regulation/)
- [Coronavirus](https://www.thetmca.com/tag/coronavirus/)
- [COVID-19](https://www.thetmca.com/tag/covid-19/)
- [CBD](https://www.thetmca.com/tag/cbd/)
- [California Privacy Rights Act](https://www.thetmca.com/tag/california-privacy-rights-act/)
- [CPRA](https://www.thetmca.com/tag/cpra/)
- [United States Department of Commerce National Telecommunications and Information Administration](https://www.thetmca.com/tag/united-states-department-of-commerce-national-telecommunications-and-information-administration/)
- [National Institute of Standards and Technology](https://www.thetmca.com/tag/national-institute-of-standards-and-technology/)
- [graffiti](https://www.thetmca.com/tag/graffiti/)
- [Marrakesh Treaty Implementation Act](https://www.thetmca.com/tag/marrakesh-treaty-implementation-act/)
- [MTIA](https://www.thetmca.com/tag/mtia/)
- [Dollar General](https://www.thetmca.com/tag/dollar-general/)
- [Hilton Worldwide](https://www.thetmca.com/tag/hilton-worldwide/)
- [Federal Court of Canada](https://www.thetmca.com/tag/federal-court-of-canada/)
- [Rock-A-Fella Records](https://www.thetmca.com/tag/rock-a-fella-records/)
- [breach of contract](https://www.thetmca.com/tag/breach-of-contract/)
- [Jay-Z](https://www.thetmca.com/tag/jay-z/)
- [Statute of Frauds](https://www.thetmca.com/tag/statute-of-frauds/)
- [unauthorized changes](https://www.thetmca.com/tag/unauthorized-changes/)
- [unauthorized users](https://www.thetmca.com/tag/unauthorized-users/)
- [spam](https://www.thetmca.com/tag/spam/)
- [brand registries](https://www.thetmca.com/tag/brand-registries/)
- [CGI Influencers](https://www.thetmca.com/tag/cgi-influencers/)
- [Lil Miquela](https://www.thetmca.com/tag/lil-miquela/)
- [Converse Inc.](https://www.thetmca.com/tag/converse-inc/)
- [Chuck Taylors](https://www.thetmca.com/tag/chuck-taylors/)
- [outsole design](https://www.thetmca.com/tag/outsole-design/)
- [secondary meaning](https://www.thetmca.com/tag/secondary-meaning/)
- [EU General Data Protection Regulation](https://www.thetmca.com/tag/eu-general-data-protection-regulation/)
- [Forney Industries](https://www.thetmca.com/tag/forney-industries/)
- [color marks](https://www.thetmca.com/tag/color-marks/)
- [Heksenkaas](https://www.thetmca.com/tag/heksenkaas/)
- [The Court of Justice of the European Union](https://www.thetmca.com/tag/the-court-of-justice-of-the-european-union/)
- [EJC](https://www.thetmca.com/tag/ejc/)
- [Dunster Live LLC](https://www.thetmca.com/tag/dunster-live-llc/)
- [PRC](https://www.thetmca.com/tag/prc/)
- [ecommerce law](https://www.thetmca.com/tag/ecommerce-law/)
- [Bureau of Cannabis Control](https://www.thetmca.com/tag/bureau-of-cannabis-control/)
- [California Department of Public Health](https://www.thetmca.com/tag/california-department-of-public-health/)
- [California Department of Food and Agriculture](https://www.thetmca.com/tag/california-department-of-food-and-agriculture/)
- [Palm Restaurant](https://www.thetmca.com/tag/palm-restaurant/)
- [breach of fiduciary duty](https://www.thetmca.com/tag/breach-of-fiduciary-duty/)
- [royalty rate](https://www.thetmca.com/tag/royalty-rate/)
- [Mayweather](https://www.thetmca.com/tag/mayweather/)
- [DJ Khaled](https://www.thetmca.com/tag/dj-khaled/)
- [cryptocurrency](https://www.thetmca.com/tag/cryptocurrency/)
- [Honey Badger](https://www.thetmca.com/tag/honey-badger/)
- [The Crazy Nastyass Honey Badger](https://www.thetmca.com/tag/the-crazy-nastyass-honey-badger/)
- [Christopher Gordon](https://www.thetmca.com/tag/christopher-gordon/)
- [Drape Creative Inc.](https://www.thetmca.com/tag/drape-creative-inc/)
- [logos](https://www.thetmca.com/tag/logos/)
- [authorship](https://www.thetmca.com/tag/authorship/)
- [ReDigi](https://www.thetmca.com/tag/redigi/)
- [Trump National Golf Club](https://www.thetmca.com/tag/trump-national-golf-club/)
- [Hearst Communications](https://www.thetmca.com/tag/hearst-communications/)
- [Cheez-It](https://www.thetmca.com/tag/cheez-it/)
- [Whole Grain](https://www.thetmca.com/tag/whole-grain/)
- [slogans](https://www.thetmca.com/tag/slogans/)
- [mottos](https://www.thetmca.com/tag/mottos/)
- [Minnesota Vikings](https://www.thetmca.com/tag/minnesota-vikings/)
- [New York Giants](https://www.thetmca.com/tag/new-york-giants/)
- [Chicago Bulls](https://www.thetmca.com/tag/chicago-bulls/)
- [TiVo](https://www.thetmca.com/tag/tivo/)
- [Tivoli](https://www.thetmca.com/tag/tivoli/)
- [TIVOTAPE](https://www.thetmca.com/tag/tivotape/)
- [TIVOBAR](https://www.thetmca.com/tag/tivobar/)
- [famous marks](https://www.thetmca.com/tag/famous-marks/)
- [Curtin](https://www.thetmca.com/tag/curtin/)
- [Rapunzel](https://www.thetmca.com/tag/rapunzel/)
- [Twombly](https://www.thetmca.com/tag/twombly/)
- [motion to dismiss](https://www.thetmca.com/tag/motion-to-dismiss/)
- [Iqbal](https://www.thetmca.com/tag/iqbal/)
- [Gigi Hadid](https://www.thetmca.com/tag/gigi-hadid/)
- [Xclusive](https://www.thetmca.com/tag/xclusive/)
- [reposting](https://www.thetmca.com/tag/reposting/)
- [covfefe](https://www.thetmca.com/tag/covfefe/)