Unless you are Leonardo Da Vinci or Julius Caesar, you would probably have trouble registering your last name as a trademark. This is because last names are not generally considered to be inherently distinctive enough to qualify for trademark protection without proof of secondary meaning. However, there is an exception for historical names that are likely to be recognized by the public as referring not to an ordinary surname,… More
Monthly Archives: June 2013
First Circuit Affirms $675,000 Award Against Joel Tenenbaum: Gore Test Does not Apply to Statutory Damages under Copyright Act
This week, the First Circuit affirmed a $675,0000 statutory damages award against college student Joel Tenenbaum for copyright infringement. The Court held that the damages award, based on Tenenbaum’s illegal downloading and distribution of 30 copyrighted songs, was not excessive or a violation of due process.
The Original Jury Award
“Be fruitful and multiply . . . but not in those words”: How much good faith is required when giving birth to a DMCA takedown notice?
Section 512 of the Digital Millennium Copyright Act (DMCA) provides copyright owners with the ability to demand that Internet Service Providers (ISPs) remove unauthorized copies from the internet. This can be a powerful tool. Risk-averse ISPs, unwilling to expose themselves to liability for copyright infringement, often comply with such notices without regard for their merit. Thus, even when a takedown notice is patently frivolous,… More
A decision this week from the Federal Circuit, in a patent invalidity action, has been getting a lot of press for its suggestion that patent (and by implication trademark) holders may be able to avoid challenges to the validity of their IP simply by crafting a website disclaimer explaining that they will not sue certain competitors or other potential challengers. The decision has been argued by some to be an extension of the reasoning of the U.S.… More
The Supreme Court has recently agreed to hear argument in Lexmark v. Static Control that will strike at the very heart of false advertising jurisprudence by asking who is allowed to bring false advertising claims. The Lanham Act states that such claims may be brought “by any person who believes that he or she is or is likely to be damaged by” an alleged misrepresentation “in commercial advertising or promotion.” Courts have varied in interpreting that language to determine exactly who is an appropriate plaintiff.… More
An interesting debate recently occurred in the New England Journal of Medicine between a physician and the U.S. Food and Drug Administration (FDA) regarding whether the letters X and Z are used too frequently in pharmaceutical trademarks.
As most of our readers are well aware, the touchstone of whether any two trademarks can coexist in the U.S. — on the United States Patent and Trademark Office (PTO) registers and in the marketplace —… More