Posts Tagged: "trademark"

On October 27, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed a decision of the United States Patent and Trademark Office’s Trademark Trial and Appeal Board (TTAB) in Corcamore, LLC v. SFM, LLC. In an opinion authored by Circuit Judge Reyna, the CAFC affirmed the TTAB’s decision that SFM was entitled to bring and maintain a petition under 15 U.S.C. § 1064 because it met the requirements to bring a cancellation action against Corcamore’s registered mark, and that the TTAB did not abuse its discretion in imposing default judgment as a sanction.

Sometimes a dog toy is just a dog toy. Maybe that’s how Sigmund Freud would have put it; certainly, that’s the message from our client, the International Trademark Association (INTA), to the U.S. Supreme Court. At issue is a Ninth Circuit decision that extends First Amendment protection to ordinary commercial goods like dog toys, at the expense of trademark rights. INTA, Jack Daniel’s competitors, alcohol beverage industry associations, and other trademark advocates this week asked SCOTUS to step in and reverse.

Companies trying to compete for supermarket shelf space and consumer attention frequently turn to packaging and product designs that will stand out. If the product succeeds, one unfortunate side effect for the brand owner is the market can become flooded with “me too” products that attempt to ride on the coattails of that success. How do owners of unique products protect themselves? Trade dress protection is one legal tool that companies should consider.

One of street artist Banksy’s most iconic images—a mural sprayed on a Jerusalem building of a protester preparing to hurl flowers—failed to win trademark approval from the European Union in September because the European Union Intellectual Property Office (EUIPO) doubted the sincerity of his attempt to merchandise the image. Banksy had hoped that the trademark would prevent unauthorized use of the image by a greeting card company, Yorkshire-based Full Colour Black. Famously private, the artist elected the unorthodox strategy of seeking trademark protection. The EUIPO said the artist’s company, Pest Control, had filed the mark in order to avoid using copyright laws, which would have required him to reveal his true identity—something he has managed to keep hidden for more than 15 years. (There are many theories about Banksy, including the possibility that he is a “we,” not a single individual but a team of street artists or artisans assisting him.) A copyright also would have limited the term of coverage.

Last week, the United States Court of Appeals for the Third Circuit affirmed a decision of the district court that granted summary judgment to Lotte International America Corp. because Ezaki Glico’s cookie design was functional and not entitled to trade dress protection in Kaisha v. Lotte International America Corp. Noting that trade dress protection does not extend to functional or useful features, and there was no dispute that Pocky’s design was useful, the Third Circuit explained that the trade dress was invalid and “[t]hat’s the way the cookie crumbles.”

In his address to the Intellectual Property Owners Virtual Annual Meeting yesterday, USPTO Director Andrei Iancu said that, despite sharp declines in filings and renewals, COVID-19 seems to have spurred innovation in some areas. “Small and micro entity patent filings are at a historic high, with more than 112,000 filed during the first 11 months of fiscal year 2020,” Iancu said. In an August interview with IPWatchdog Founder and CEO Gene Quinn, Iancu discussed one of the COVID-19 relief programs the Office has instituted to support small inventors during the pandemic. A pilot that offers free prioritization of COVID-19 related patent applications has been working well, Iancu told Quinn, and is expressly geared to assisting smaller entities.

Trademark law has seen substantial developments in 2019 and 2020, with four major cases in the United States and Europe rising to the top. The U.S. Supreme Court (SCOTUS) issued two of those decisions, the most recent being especially significant because the court has not opined on the topic of trademark genericism in nearly 100 years. The other SCOTUS case dealt with the hotly contested topic of awarding profits obtained through innocent (unknowing) trademark infringement.

Intellectual property rights continue to be the Rodney Dangerfield of assets – they “can’t get no respect.” The reasons are complex, but not terribly surprising, given the increased speed and importance of technology in recent years. Compounding the disconnect are many individuals and businesses who prefer to view IP rights as impediments, not assets that can be licensed or otherwise monetized. In their mind, pilfering content, using someone else’s invention or borrowing a name or image is akin to a “white” lie that does no real harm. This myth has been perpetuated over time in different ways by other IP holders and consumers who would prefer not to pay for what they need. The result is a strangely inhospitable environment for IP that dissuades innovation and depresses value.

The Washington Football Team’s (formerly the Washington Redskins’) move to change its name and logo has sparked a flurry of fans looking to “cash in” as national retailers pull the team’s merchandise off their shelves. Fans everywhere are hoping to snatch up any remaining Redskins-branded memorabilia they think may be worth money someday, which in turn is putting them at risk of purchasing knockoff items. Advancements in technology have made it harder to discern between what’s fake and what’s authentic, and the rush to find Redskins gear may make things worse as fans make snap-purchasing decisions and accidentally buy a knockoff item. 

Brazil’s accession to the Madrid Protocol has included several important changes to the country’s trademark system, such as simplifying the registration of trademarks, reducing costs, and implementing procedures that were not previously possible through the Brazilian Patent and Trademark Office (BPTO). Among these changes is the long-awaited possibility of co-ownership of trademarks.

In late July, water bottle maker Hydro Flask and parent company Helen of Troy Limited filed a complaint with the U.S. International Trade Commission (ITC) asking the agency to institute a Section 337 investigation against a series of 25 respondents, most of which are located in China, over their alleged infringement of Hydro Flask’s trademarks and design patents. The legal action highlights the difficulties being faced by many American brand owners during the COVID-19 pandemic and how Congressional action could help to ensure that these small businesses are able to effectively enforce their IP to prevent counterfeit imports.