Smiles Like Teen Spirit: “Smiley Face” Copyright and Trademark Litigation

You may think the phrase “million-dollar smile” is just a metaphor, but a smile could cost you millions of dollars in litigation damages if you aren’t careful, at least according to Nirvana LLC, the legal entity that owns the intellectual property rights relating to the 90’s rock band Nirvana.

Nirvana’s Smiley Face Logo

If you thought the image of a yellow smiley face was too common to be owned by anyone,… More

French Court Finds Jeff Koons Guilty of Copyright Infringement Again

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.

We commented on this blog on a decision rendered by the Paris District Court on March 9, 2017 in which the Court found that for one of his Banality sculptures,… More

Under the Sea: Sneaky Trademark Filings for Cautious Companies

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

“Let’s Get Ready to Register!” Or not. Supreme Court Entertains Oral Argument Rumble on Copyright Circuit Split

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

Yes, We Have No More Extensions! Copyrighted Works Age Into Public Domain for First Time in Twenty Years

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

Second Circuit: Sales of Pre-Owned Digital Music Infringe Copyright

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

Is Your Turkey Wishbone Protected By Copyright?

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

Watch: Social Media Pitfalls and Best Practices

Co-Hosted by Foley Hoag LLP and ACC – Northeast

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

The Ultimate Girls Versus Boys Battle Of The Trademarks: Girl Scouts Sue Boy Scouts for Trademark Infringement and Dilution

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

Frankenstein and Copyright: 5 Things You Should Know

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.

The public did not learn until years later that this masterpiece had been penned by Mary Wollstonecraft Shelley.… More

Five Takeaways from the Pharmaceutical Trade Marks Group Autumn Conference in Dubrovnik

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:

  1. Game of Thrones “Set Jetters” are everywhere. Dubrovnik,…
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MoMA and New York City Shut Down Trademark Infringing Eateries on the Same Day

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

A Five-Minute Read on Current Patent Litigation Trends for People who get Bored by Patents

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

First Circuit Affirms Personal Jurisdiction Based on Global Web Activity in Trademark Action

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

European Union Copyright Directive’s Back on the Radar

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