is an associate in the Litigation Department at Debevoise, .
For more information or to contact Marissa, please visit her Firm Profile Page.
With brick-and-mortar stores closing at rapid paces and online sales surging, marketers are developing new models to facilitate sales through innovative online platforms. One of those new business models is Redbubble’s hybrid “print-on-demand” service. Two recent Court of Appeals decisions – from the Sixth and Ninth Circuits – consider important questions about when these new approaches to online sales gives rise to liability for trademark infringement, trademark counterfeiting, and right of publicity violations.
In the past week, the COVID-19 pandemic has led courts across the country to close buildings, postpone hearings, adjust filing rules, and revamp their typical approach to pending cases. These changes have created new uncertainties for litigants and their counsel in cases requiring emergency relief, but our initial survey of public statements and emerging practices from leading courts around the country provide some reassurance that courts are mostly continuing to function normally, with changes to filing procedures and arguments being heard by phone.
New rules governing all trademark filings with the United States Patent and Trademark Office (USPTO) went into effect two days ago, on February 15. Although the headline is a move to mandatory electronic filing for virtually all trademark applications, some of the rules have caused significant controversy within the trademark bar, especially a requirement that applicants provide a contact email address for the applicant, not just their counsel. The USPTO’s shift to mandatory electronic filing is relatively uncontroversial, since more than 99% of applications under Section 1 or Section 44 of the Trademark Act are already filed electronically. There are certain exceptions under the rule for foreign applicants under international agreements, and for non-traditional scent and flavor marks, where a physical specimen will still need to be mailed to the USPTO. But for all other applicants, electronic filing will now be mandatory unless the USPTO’s filing system – the Trademark Electronic Application System (TEAS) – goes down.