On April 29, sometimes called “Duke Ellington Day,” we celebrate the life and artistic accomplishments of the great musician and bandleader, Edward Kennedy (“Duke”) Ellington, who was born in 1899 and passed away in 1974. On his 70th birthday, Ellington got a jam session at the Nixon White House and the Presidential Medal of Freedom. Now, for his 118th birthday,… More
Earth Day is coming up on April 22, which means that a lot of consumers are going to be reminded to think green, and to buy green. What if your company is looking to access this vast market of environmentally-minded shoppers, but your product or service isn’t really that environmentally conscious? Can you just go ahead and label yourself “Green” anyway? Who’s gonna notice?
Although marijuana is becoming legal to varying degrees in an increasing number of states, your chances of getting a marijuana trademark registered with the United States Patent and Trademark Office (PTO) are still grim. In order to register a trademark with the PTO, the applicant has to show that the goods or services with which the mark will be used are permitted under federal law. Therefore, until marijuana gets reclassified by or removed from the federal Controlled Substances Act,… More
On March 22, 2017, the Supreme Court established a test for determining whether a design that is incorporated into a useful article is entitled to copyright protection. In its much-awaited opinion in Star Athletica, L.L.C. v. Varsity Brands, Inc., the Supreme Court affirmed the Sixth Circuit and held that the two-dimensional designs appearing on the surface of cheerleading uniforms were entitled to copyright protection because they were sufficiently separable from the utilitarian aspects of the uniform.… More
There are many businesses focused on helping inventors develop and monetize their ideas. There are companies that, for instance, help people seek patents on their inventions, license their inventions, turn their ideas into tangible products, and promote those products. World Patent Marketing in Florida bills itself as one of those companies. But according to a complaint filed by the Federal Trade Commission this month,… More
If you’re interested in garbage, the crass objectification of male celebrities, or both – or if you consider the two roughly equivalent – have I got a false advertising case for you! Despite their “Don’t Get Mad; Get Glad” tagline, the makers of Glad trash bags got pretty mad at a recent advertising campaign launched by their competitor, Hefty. So mad, in fact, that they filed a complaint with the National Advertising Division (NAD) of the Better Business Bureau.… More
As all aspects of business inexorably shift toward online, it is not surprising that intellectual property infringement, cybersquatting, and related internet abuses abound. Luckily, there are various procedures available by which aggrieved companies can seek relief short of litigation.
A decision rendered by the European Court of Justice (ECJ) on March 2, 2017, affirming a General Court ruling and potentially ending a nearly twenty-year legal battle, is a reminder to trademark owners that what is generic in one territory can be distinctive in another.
Doughnuts are well-known in the U.S. but, until recently, they were far less known in Europe.… More
En route to Paris for the spring conference of the Pharmaceutical Trade Marks Group, I am contemplating trying to pay a visit to the PARIS BEACH CLUB. Paris Beach Club! Get it? It’s a joke because, as everyone of course knows, Paris is land-locked and has no beach.
Or so goes the reasoning of one of my favorite Trademark Trial & Appeal Board cases,… More
On March 14, 2017, the Consumer Review Fairness Act (CRFA) will officially invalidate a whole bunch of consumer contract clauses that pertain to online reviews.
During the last decade, we started hearing reports about professionals using form contracts to prevent their clients or patients from publishing negative online reviews. Here’s an example of how it worked: You showed up for a dentist appointment and,… More
It’s March, which means that wedding season is nearly upon us. Let’s say you run your own wedding-related business with one employee: you. A customer gives you a review on the internet that is not only negative, but contains false statements. Who is harmed by this false review: you, your business or both? And if you want to sue the former customer, what is your cause of action?… More
Last month, the Broadway hit-musical Jersey Boys closed its doors after a spectacular eleven-year run. As someone who hails from the great state of New Jersey and who saw the show twice, I thought it was only appropriate to give Jersey Boys a formal send off. And what better way for a copyright lawyer to honor Jersey Boys than to write about two Jersey Boys-related copyright suits?… More
Section 43(a) of the Lanham Act prohibits false or misleading statements in commerce that are likely to cause confusion as to a person’s affiliation, approval or sponsorship of someone else’s commercial activities. Here’s an easy example: You take an iconic photograph of a celebrity and, without the celebrity’s permission, incorporate it into the wrapper of a candy bar you are selling. Consumers are confused into thinking the celebrity has endorsed the candy bar,… More
Are journalists protected by anti-SLAPP statutes? Until last week, the likely answer would have been: “probably not,” at least in Massachusetts. But that was before Cardno Chemrisk, LLC v. Foytlin, a recent opinion by the Massachusetts Supreme Judicial Court (which we Bay Staters refer to as the “SJC”). The case involved a Huffington Post story about a chemical consulting firm involved in the Deepwater Horizon oil spill litigation.… More
Naming pharmaceutical and biologic products presents unique challenges from both trademark and regulatory perspectives. In addition to the traditional marketing goals of trademark selection, companies evaluating names for medications must also consider safety issues, false advertising concerns, and more. Importantly, pharmaceutical trademarks must pass muster not only with the Patent and Trademark Office (PTO), but also with the Food and Drug Administration (FDA). The recent advent of a market for biosimilars presents new questions and challenges.… More