• You Can’t Make Him Drink

    10/26/21

    In Brief: A former employee can’t always be forced to assign a patent to a former employer.

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  • Pizza Wars Part II: New York Style

    10/19/21

    In Brief: Trademarks that co-exist for a long time don’t always create a likelihood of confusion.

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  • Pizza Wars Part I: Chicago Style

    10/12/21

    In Brief:  Use of a licensed trademark is limited by the scope of the license.

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  • Naming Rights in the Gig Economy

    10/5/21

    In Brief:  Using someone else’s descriptive trademark can be fair use.

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  • Copyrighting a Trademark

    9/28/21

    In Brief:  A trademark has to meet minimum standards of creativity for a copyright registration.

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  • My Own Private Emoji

    9/22/21

    In Brief:   An emoji trademark wasn’t used in commerce.

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  • Nerdy High

    8/24/21

    In Brief:  Cannabis edibles cannot use a variation of non-cannabis trademark for candy.

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  • Honestly

    8/17/21

    In Brief:  Failure to be honest during a lawsuit can result in the court vacating a judgment.

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  • Glittery Fish Sticks and Tater Tots

    8/10/21

    In Brief:  Fleeting use of a copyrighted work in a documentary is fair use.

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  • The Sting That Narrowed the Sting of Computer Fraud

    8/3/21

    In Brief:  The US Supreme Court pretty much removed the stinger from the hornet that was Computer Fraud and Abuse Action (CFAA).

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  • A Thriller Judgment Against the Tax Man

    7/27/21

    In Brief:  In a recent decision, the Tax Court determined the value of Michael Jackson’s image at the time he died.

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  • Putting Confusion to Bed

    7/20/21

    In Brief: Initial interest confusion is still alive (sort of) despite a lot of criticism.

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  • Who Judges Whom?

    7/13/21

    In Brief:   The US Supreme Court held that Patent Trial and Appeal Board judges need oversight by the Director of Patents.

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  • Clearly, the Clear Brand Wasn’t Clear

    6/22/21

    In Brief:  The Trademark Trial and Appeal Board refused to register “Clear” for opaque goods.

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  • No Silver Lining for the Producer

    6/15/21

    In Brief: The producer of Silver Linings Playbook won’t see all of the backend.

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  • Just in Time for Summer BBQ

    6/8/21 1

    In Brief:   Metchup survives a trademark challenge, but barely.

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  • Bankruptcy Doesn’t “Un-Terminate” a Patent License.

    5/25/21

    In Brief:  Terminating a patent license prior to the filing of a bankruptcy doesn’t result in an avoidable fraudulent transfer.

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  • Copyrighted Flowers Have Only So Many Damages Petals

    5/18/21

    In Brief:  A plaintiff can’t get multiple statutory damages awards for the infringement of one work.

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  • Wrinkly Excuses

    5/11/21

    In Brief:   A trademark adopted in bad faith will not be registered.

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  • Oh, I Was Supposed to Keep it a Secret?

    5/4/21

    In Brief:  The duty to keep a trade secret arises at the time the secret was acquired.

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  • Musical Tushies Means Something More Than You Think

    4/27/21

    JHR Entertainment LLC filed an intent to use application for the trademark “Musical Tushies”. The trademark was going to be used for musical greeting cards that included images of the posteriors of humans and animals. JHR disclaimed the word “Musical” because it was descriptive of a feature of the cards. The Examining Attorney refused registration arguing that “Tushies” is descriptive of a feature of the goods. 

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  • SCOTUS Has Spoken on Fair Use

    4/13/21

    Oracle America, Inc. owns the copyright to the Java computer language. In 2005, Google LLC acquired Android and wanted to build a new software platform for mobile devices. To allow the programmers familiar with Java to help build the platform, Google copied about 11,500 lines of code from the Java program. These lines of code are part of a programming tool called that’s called an “Application Programming Interface (API)”. 

    Oracle sued for copyright infringement.

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  • Fair Use Gets Transformed

    4/6/21

    In a recent blog post, I looked at the meaning of transformative use as it relates to fair use in a suit involving well-known photographer, Lynn Goldsmith, and The Andy Warhol Foundation for the Visual Arts, Inc. Lynn had taken some photos of the music artist, Prince. Vanity Fair magazine had licensed one of Lynn’s photos and commissioned Andy Warhol to create paintings from it for an article. Warhol then went a step further and used Lynn’s other photographs as the foundation for series of Prince paintings. Years later, Vanity Fair published an article using Warhol’s paintings. This was when Lynn learned about Warhol’s additional paintings. Lynn threatened to sue for copyright infringement. The Warhol Foundation brought a suit for declaratory judgment that the additional paintings were fair use. The district court held that Warhol’s treatment of Lynn’s photographs was transformative and therefore fair use.

    Andy Warhol’s art was innovative. But it may not have been transformative when it comes to fair use.

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  • Menu Patent is Invalid No Matter How You Slice It

    3/30/21

    Ameranth, Inc. sued numerous pizza chains and delivery companies for patent infringement relating to its patents for menus. But it met its match with Domino’s Pizza Inc.

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  • Goodwill Clucking

    3/23/21

    For the Mother Cluckers trademark saga, we need a little background about goodwill. A trademark establishes a connection between the owner’s goods and services and the consumer. That connection is the goodwill in the trademark. In order to be effective, a trademark assignment requires the assignment of the goodwill attached to it. 

    Assigning goodwill along with the assignment of a trademark isn’t form over substance.

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