Two companies with similar marks operated in the same region for more than 40 years without any actual confusion arising for consumers. Nonetheless, the Trademark Trial and Appeal Board (TTAB) found a disqualifying likelihood of confusion when one company tried to...
Supreme Court slaps down PTO pursuit of attorneys’ fees
The U.S. Supreme Court has weighed in on a new U.S. Patent and Trademark Office (PTO) practice when patent applicants appeal adverse decisions in district court. And the Court’s conclusion is welcome news for applicants who want to go this route to contest the denial...
Attorneys’ fees awards in trademark cases
Appellate court lowers the bar When most people think about what it takes to qualify as “exceptional,” they probably imagine a fairly high bar. That’s not how the U.S. Court of Appeals for the Seventh Circuit sees it, though — at least when it comes to the standard...
Prescription for copyright protection: Register stat!
Copyright protection generally takes effect as soon as you create an original work, but it might not be as extensive as you think. To get the full protection, including the ability to sue for infringement, you must register your work with the U.S. Copyright Office —...
Look before you leap
Foreign publication leads to patent invalidation It’s not easy out there for a patent owner. Even after a patent is granted, an owner can find the patent’s validity challenged if it hasn’t thoroughly searched for “prior art.” That’s what happened to one...
No harm, no foul
Fair use defense wins trademark infringement case Athletes are known for “leaving it all on the field,” or going all out in competition. A nutritional consultant firm for athletes recently took the same mindset to a trademark battle — but it didn’t emerge...
Back to the future
Federal Circuit rejects narrow approach to relation back doctrine The U.S. Court of Appeals for the Federal Circuit, the appellate court that hears all patent-related appeals, recently revived an infringement lawsuit based on the relation back doctrine. The court...
Food for thought: Court rules banana costume is copyrightable
In 2017, the U.S. Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc., established a two-part test for analyzing which elements of a piece of clothing are design elements protectable by copyright and which are nonprotectable functional elements. The U.S....
Third Circuit rejects copyright presumption in favor of permanent injunctions
After securing a copyright infringement verdict, it should be easier to obtain a permanent injunction against the infringing party, right? Not so in several jurisdictions. The U.S. Court of Appeals for the Third Circuit has now made it harder for copyright holders to...
Actual consumer confusion irrelevant in trademark profits determination
It’s easy to understand why willful infringement deserves a harsher punishment than nonwillful infringement. But it’s not always so easy to understand the type of conduct that gives rise to the level of “willful.” The U.S. Court of Appeals for the Second Circuit has...