At the end of 2014 and beginning of 2015, the Pompidou Museum organized a retrospective of the work of Jeff Koons, which attracted thousands of visitors but gave rise to several lawsuits.
The general rule of thumb for trademarks in the U.S. – and everywhere else, for that matter – is “the earlier, the better.” It’s almost always the right move to file a trademark application as early as possible, and well in advance of a product or service announcement, both to (a) minimize the possibility of conflicting marks and filings; and (b) mitigate the potential for attempted trademark and domain name “squatting” that inevitably follows a well-publicized product/service announcement. … More
Is copyright registration required before you can bring a copyright infringement suit? Everyone agrees that the answer is yes. But not everyone agrees on the definition of “registration.” That’s the question that will be under consideration by the Supreme Court at oral argument on January 8, 2019, in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC.
Registration is not required for valid copyright ownership,… More
While scholars and pundits are busy listing the most important copyright rulings of 2018, a development that arguably beats them all is about to occur just as 2018 turns into 2019. On January 1, 2019, copyrighted works will start to age into the public domain for the first time in twenty years, beginning with works published in 1923.
Why did we go twenty years without anything aging into the public domain?… More
A copyright owner’s exclusive rights, codified at Section 106 of the Copyright Act, include the right to control both the reproduction and the distribution of a work. The exclusive distribution right is tempered by the “first sale doctrine,” codified at Section 109 which provides that, once you lawfully obtain a copy of something, you usually can resell the physical object (e.g., a used book) containing that copy.… More
The use of a bird’s furcula, or “wishbone,” for divination purposes dates back to the ancient Etruscans, and the ritual of two people pulling on the furcula to determine who would get married first has its origins in late medieval Europe. From there, some version of the custom likely was brought to America by the pilgrims, who would have referred to the bone as a “merrythought.” Given all that history,… More
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Social media platforms present countless opportunities for companies looking to connect to consumers and clients in real time. But, like so much else in our connected age, these opportunities come with a host of risks ranging from minor public relations blips to unpleasant regulatory run-ins with government agencies, and from DMCA takedowns to right of publicity lawsuits.
Foley Hoag,… More
When I heard that the Girl Scouts of the United States of America filed a lawsuit against the Boy Scouts of America last week, I was fascinated. As a former Girl Scout and troop leader myself, who also happens to practice trademark law, I have a lot of thoughts about this case. Many people predicted that the Boy Scouts’ decision to admit girls last year would put the organizations on a collision course. … More
The first edition of Frankenstein, or The Modern Prometheus, was published in 1818, two hundred years ago. Originally offered to the public as an anonymous work, Frankenstein was both the apogee of the gothic horror novel and the birth of the science fiction genre.
I recently returned from this autumn’s PTMG conference in Dubrovnik, Croatia, where I enjoyed catching up with colleagues from near and far, learning about trends in pharmaceutical industry trademark law around the world, and exploring a lovely corner of the Adriatic. Here are my top five takeaways from the meeting:
Disputes over restaurant trademarks are not exactly rare. However, we couldn’t help noticing that on September 28, 2018, injunctions issued hours apart in two restaurant name disputes involving high profile New York marks.
City of New York v. Tavern on the Green
The iconic Tavern on the Green restaurant in Central Park is owned by the City of New York, but has been operated by concessionaires since it opened in 1934.… More
Frequent Trademark and Copyright Law Blog contributor Peter Sullivan has written about some pretty fun topics, including Sponge Bob trademarks and Grumpy Cat copyrights. But when he’s not having fun, he’s also a patent lawyer. Check out his recent article on trends in patent litigation for the International Bar Association: The Impact of inter partes review on patent rights and patent litigation in the United States.… More
When does the globally available website of a foreign company subject that company to jurisdiction in the United States for purposes of a trademark infringement action? Does it make a difference if the foreign company has applied for a United States trademark registration? In Plixner International v. Scrutinizer GmbH, the First Circuit was reluctant to adopt any rules of general applicability,… More
We previously commented in early July on the proposed European Union (“EU”) Copyright Directive. At that time, the proposed Directive had just endured a setback before the Parliament, which decided to revise it.
After the summer break, on September 12, 2018, the EU Parliament finally adopted its “revised negotiating position.” The Parliament announced in its press release that it had added to the text “safeguards to protect small firms and freedom of expression”.… More
In anticipation of our visit to Chicago next week for the Intellectual Property Owners Association’s Annual Meeting, we took a tour through the USPTO’s trademark database in search of Chicago-themed trademarks. Among marks consisting of the word CHICAGO and no other words, we found quite a few gems, including some whose histories illustrate interesting trademark issues. Unsurprisingly, many of these marks have faced resistance on the basis that they lack distinctiveness because they merely describe the geographic origin of the goods or services they seek to identify,… More