Posts Tagged: "Inc."

USPTO Seeks Comments on Discretion to Institute Trials Before the PTAB

On October 20, the United States Patent and Trademark Office (USPTO) published a “Request for Comments on Discretion To Institute Trials Before the Patent Trial and Appeal Board” in the Federal Register. In particular, the USPTO is considering the codification or modification of its current policies and practices with respect to instituting trials before the Office under the Leahy-Smith America Invents Act (AIA). The Office submitted a proposed rulemaking to the White House’s Office of Management and Budget (OMB) last month with the aim of formalizing recent practices under precedential opinions including Apple Inc. v. Fintiv, Inc; General Plastic Industries Co. Ltd. v. Canon Kabushiki Kaisha; and Becton, Dickinson & Co. v. B. Braun Melsungen AG.

Let the Music Play: The Performance Rights License Marketplace Thrives Only with Vigilant Antitrust Enforcement

On January 26, CBS broadcast the 63rd Annual Grammy Awards, which celebrated America’s finest recording artists and songwriters. Drawing a global audience with performances by super stars such as Aerosmith, Blake Shelton, and Ariana Grande, the event highlighted the music industry’s talents, innovation, and extraordinary financial success. Yet, what keeps the music flowing in a thriving marketplace is the fair operation of the performing rights license marketplace made possible by vigilant antitrust enforcement. The Department of Justice, Antitrust Division (the Department) is currently reviewing the consent decrees between the federal government and two performance rights organization behemoths: ASCAP (American Society of Composers, Authors, and Publishers) and BMI (Broadcast Music, Inc.). While conducting periodic reviews of antitrust law is smart policy, altering or scrapping the music decrees would be a mistake.

Ninth Circuit Set to Clarify Aesthetic Functionality Doctrine

A case now pending before the Ninth Circuit, LTTB LLC v. Redbubble, Inc., Docket No. 19-16464, has the potential to clarify the controversial doctrine of aesthetic functionality. Aesthetic functionality has puzzled courts for decades. Particularly before the U.S. Supreme Court issued its modern guidance on functionality in Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844 (1982); TrafFix Devices v. Mktg. Displays, Inc., 532 U.S. 26 (2001), and Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159 (2d Cir. 2009), courts struggled with how to apply the aesthetic functionality doctrine and issued opinions that, in some instances, muddied the already murky aesthetic functionality waters. Perhaps the most notorious aesthetic functionality case is International Order of Job’s Daughters v. Lindeburg & Co., 633 F.2d 912 (9th Cir. 1980), a case that many observers believed to be abrogated by subsequent Supreme Court and Ninth Circuit opinions but that has recently continued to wreak havoc on trademark law.

Four Issues Highlighted in the Supreme Court Oral Argument on Copyrightability of Statutory Annotations

On December 2, the U.S. Supreme Court heard oral argument in the matter of Georgia v. Public.Resource.Org, Inc. The issue on appeal was on whether annotations to the Official Code of the State of Georgia, which were prepared by Mathew Bender & Co under the supervision of Georgia’s Code Revision Commission, which was itself created by Georgia’s General Assembly, were capable of copyright protection, or whether they were an integral part of the laws of the State of Georgia, which, like all legislation, is part of the public domain and cannot be copyrighted. The outcome of this decision will affect legal publishing schemes in a number of states which, similar to Georgia, contract the work of preparing annotations to private sector companies, which then monetize those copyrights through a license fee structure. Indeed, concern for states’ publishing schemes led to the Solicitor General’s office and various other states joining in on the side of petitioner, the State of Georgia, who is seeking to establish that the annotations are subject to copyright. The case also presents a fascinating, almost philosophical discussion on the nature of annotations and the legal or persuasive force they should be afforded.

Final Briefs Filed with SCOTUS in Romag Fasteners Case on Trademark Infringement Damages

On November 27, briefing concluded at the Supreme Court with the filing of Fossil’s respondent’s brief in Romag Fasteners, Inc., v. Fossil, Inc., et al. The final briefing sets the stage for the Court to hear the case on January 14, 2020. The Court will hopefully resolve a current Circuit split on the availability of disgorgement of profits as damages for trademark infringement. Currently, the First, Second, Eighth, Ninth, Tenth and D.C. Circuits all require willful infringement before allowing disgorgement of an infringer’s profits (the First Circuit requires willfulness if the parties are not direct competitors and there is also some disagreement on where the Eighth Circuit falls on the issue). The Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuits all allow for disgorgement of profits without willful infringement. There has been a Circuit split for some time on this issue and the Supreme Court previously denied certiorari on similar cases but the Court is now set to resolve the split.