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The Outdoor Recreation Economy

Sports & Recreation
04/25/2017 - By: Douglas Tumminello

This morning, the Outdoor Industry Association released its latest Outdoor Recreation Economy Report in connection with its annual Capitol Summit in Washington D.C., and the numbers are HUGE:  The report estimates that the outdoor recreation economy generates $887 billion in annual consumer spending, $65.3 billion in federal tax revenue and an additional $59.2 billion […]

Fame is fleeting, especially for the TTAB.

04/20/2017 - By: Mike Koplow, Gary Nelson

They say an elephant never forgets.  The TTAB?  Perhaps not so much.  At least when it comes to its prior findings of fame on the same marks in later proceedings. A finding of fame is an important factor when engaging in a likelihood of confusion analysis.  As the TTAB has noted, “[w]hen a prior user’s […]

Turns out: Alice is a Wonderland for Sports Fans and Digital Content Distributors….Go ALICE!!!!

Sports & Recreation
04/19/2017 - By: Gary Nelson

In November of 2016, the Federal Circuit upheld a district court’s invalidation of Affinity Lab’s Patent No. 7,970,379 (“the ‘379 Patent), which was directed to a method and system for streaming regional broadcast signals to cellular telephones located outside the region served by the regional broadcaster.  Affinity had sued a variety of defendants, including DirecTV, […]

Colorado Proposes New Cybersecurity Regulations for Investment Advisors and Broker-Dealers

Intellectual Property
04/11/2017 - By: Shane Olafson

The Colorado Department of Regulatory Agencies recently published a notice regarding proposed changes to the Colorado Securities Act (the “Proposal”).  This Proposal seeks to add two new rules to the Securities Act (Rule 51-4.8 and 51-4.14), each of which impose various cybersecurity requirements on broker-dealers and investment advisers, respectively.  A redline showing the proposed amendments can be […]

IoT Retailer Settles Privacy Class Action for $3.75M

Intellectual Property
04/10/2017 - By: Shane Olafson

The Internet of Things (or “IoT”) is a hot topic in privacy circles, given its rapid expansion among everyday consumer products.  Broadly referring to Internet-connected-devices, the IoT encompasses a variety of consumer goods, such as kitchen appliances (smart ovens and refrigerators), home security, window blinds, light bulbs, and lawn care equipment.  Many personal devices are […]

The Federal Circuit Already Follows ABA and IPO Recommendations

Intellectual Property
04/10/2017 - By: John Carson

As illustrated by a recent Federal Circuit Decision, the Courts may already be following the recent recommendations of the American Bar Association Section of Intellectual Property Law (ABA), and the Intellectual Property Owner’s Association (IPO). A portion of the ABA March 25, 2017 recommendation states that with regard to Section 101, patent eligibility shall not […]

Copyright or Wrong: The Debate Over the Financial Benefits in Collegiate Sports is Not a Slam Dunk.

Sports & Recreation
04/07/2017 - By: Gary Nelson

College athletics, specifically the payment of student athletes and their right to control the exploitation of their likeness, has been the subject of significant debate over the last few years.  On one side, you have the players who know that the colleges and leagues they play in make millions, if not billions in revenues off […]

Don’t Be Left Flat: Words Matter When Drafting Patent Claims

Intellectual Property
04/06/2017 - By: Dustin Szakalski

In Wasica Finance GmbH v. Continental Automotive Systems, Inc., No. 15-2078 (Fed. Cir. 2017), the patentee Wasica Finance discovered, among other things, the importance of using consistent terminology in the patent specification and claims. The patent-in-suit, now expired U.S. Patent No. 5,602,524, is directed to a system for monitoring tire pressure in vehicles. In an […]

Appeals Court Throws-Out Utility Easement Damages Award – For Now

Energy & Natural Resources
04/03/2017 - By: Thomas Dougherty

In responding to rumors of his own demise, Mark Twain quipped, “The report of my death was an exaggeration.”  While the 1897 rumors were premature, Mark Twain did eventually die on April 21, 1910.  In similar fashion, the 2015 jury verdict of more than $79 million for an electric utility’s misuse of electric transmission line […]

User-Generated Content Concerns for Promotional Offerings

Intellectual Property
03/31/2017 - By: Karl Rutledge

Incorporating user-generated content (e.g., video and photo contests) into a promotion can be an effective way to not only build brand awareness but also develop ties with potential customers.  However, use of user-generated content can be risky. In particular, requiring participants to post photos or videos and share such content could not only potentially tarnish […]

Fashion Faux Pas – Copiers Beware! Supreme Court Strengthens Copyright Protection


On March 22, 2017, the United States Supreme Court issued a much-anticipated opinion in Star Athletica, LLC v. Varsity Brands, Inc.  At issue was whether the surface decorations on cheerleading uniforms are copyright eligible, even though the shape of the uniforms are useful articles, and not copyright eligible. This legal issue has particular significance to […]

Star Athletica, L.L.C. v. Varsity Brands, INC. ET AL.

Intellectual Property
03/29/2017 - By: John Carson

On March 22, 2017, the United States Supreme Court issued its decision in the case of Star v. Varsity.  580 U.S.___(2017). The opinion concerned the copyrightability of two-dimensional designs, consisting of various lines and chevrons and colorful shapes, appearing on the surface of cheerleader uniforms.  Justice Thomas, delivering the majority opinion of the Court, opined […]

Category: Copyright

New Mexico Passes Data Breach Notification Legislation

Intellectual Property
03/24/2017 - By: Shane Olafson

Last week, the New Mexico state legislature passed a bill requiring that New Mexico state residents be notified if their non-encrypted “personal identifying information” (including biometric data) is breached. Once the bill is signed into law, New Mexico will join 47 other states with similar notification laws, and the only two hold-outs will be South Dakota and […]

DJ LOGIC Trademark Infringement Case Shows Social Media Matters

Intellectual Property
03/22/2017 - By: Takashi Hashimoto

In a trademark infringement action involving the mark DJ LOGIC for music produced using turntables and vocals, the Sixth Circuit explored evidence of social media promotion submitted by the plaintiff to support the commercial strength of his mark.  Kibler v. Hall, 121 USPQ2d 1069 (6th. Cir. 2016). The use of social media to promote products […]

U.S. House Subcommittee on Energy and Natural Resources Discusses Expedited Permitting for Mines

Energy & Natural Resources
03/22/2017 - By: Carla Consoli

Good news for infrastructure, including mining projects!  On March 21st, the House Subcommittee on Energy and Natural Resources chaired by Congressman Paul Gosar (R-AZ) held a hearing on infrastructure and discussed permitting timeline delays in the U.S.  Notably, Gosar stated: “Aggregates such as crushed stone, sand and gravel are the literal foundation of many of […]

Central District of California: Decision in Graham v Sotheby’s.

Intellectual Property
03/20/2017 - By: John Carson

On March 17, 2017, Judge Nguyen of the Central District of California struck down the California Resale Royalty Act (CRRA) as violative of the Due Process Clause of the United States Constitution (Graham v. Sotheby’s).  The Court stated that the CRRA is invalid because it regulates transactions that take place wholly outside of the State […]

Category: Copyright

Congress Offers Cybersecurity Guidance for Small Businesses

Intellectual Property
03/14/2017 - By: Shane Olafson

Earlier this week the House Small Business Committee published new cyber security and data privacy guidance for small businesses.  Those publications can be found at, and come on the heels of a Committee hearing that highlighted cyber risks facing small businesses. According to the Committee, nearly 60 percent of small companies go out of […]

Walking the Tight Rope: A Lesson from the CRISPR-Cas9 Dispute

Intellectual Property
03/01/2017 - By: Nicole Chang, Lauren Schneider

In determining ownership of the CRISPR-Cas9 technology, which may be considered the most significant and important biotech breakthrough of this generation, the PTO issued a win for The Broad Institute.  Relying largely on comments by one of UC’s expert witnesses, but also on statements made by UC inventor Jennifer Doudna herself, the PTO found that […]

Wind Reaches “High Water Mark”

Energy & Natural Resources

A recent American Wind Energy Association (AWEA) report indicates that in 2015, wind surpassed hydroelectricity in U.S. installed capacity. The nation’s hydroelectric generating facilities had long been the largest source of renewable energy capacity. Thanks to the extension of the production tax credit (PTC) for wind generation resources through 2019 (with a gradual phase down […]

Nevada’s Quiet Solar Revolution

Energy & Natural Resources
02/22/2017 - By: Roman Borisov

The next time you are flying in or out of McCarran International Airport, Las Vegas, take a look at the valley that spreads just southeast of the city.  Over there, just behind the mountain range that rims the edge of Las Vegas, lies El Dorado Solar Energy Zone – the epicenter of Nevada’s solar revolution […]

Onward for Oncor

Energy & Natural Resources

On Thursday, February 16, 2017, the Delaware bankruptcy judge overseeing the Energy Future Holdings Corp. Chapter 11 bankruptcy, stated that the most recent plan for emergence from Chapter 11 met the standards for confirmation. While two objections to confirmation remain to be resolved, Judge Christopher S. Sontchi said Thursday that the plan met the requirements […]

Trade Dress – Another Weapon in Your Intellectual Property Arsenal

Sports & Recreation
02/21/2017 - By: Emily Bayton

YETI®, a well-known manufacturer of high-quality coolers and insulated tumblers, recently settled several lawsuits against cooler competitor RTIC involving allegations of trade dress infringement, patent infringement and other claims stemming from RTIC’s manufacture and sale of look-alike coolers and insulated drinkware products. Among other rights asserted in the lawsuit, YETI relied on trade dress rights […]

New Merchant Transmission Line Approved in Arizona

Energy & Natural Resources
02/08/2017 - By: Thomas Campbell

At its February 7, 2017 Open Meeting, the Arizona Corporation Commission (“Commission”) approved a Certificate of Environmental Compatibility (“CEC”) for the Southline Transmission Project (“Project”).  Docket No. L-00000AAA-16-0370-000173.  The Commission adopted the CEC approved on December 22, 2016 by the Arizona Power Plant and Transmission Line Siting Committee (“Committee”). The Commission added a new condition […]

Energy Efficiency Pioneer, Arthur Rosenfeld, Dies at Age 90

Energy & Natural Resources

The New York Times reported in its January 30, 2017 edition the passing of Arthur Rosenfeld.  Widely recognized as the “father of energy efficiency”, Rosenfeld diligently pursued energy efficiency measures until his retirement at age 83, after which he continued to speak frequently on methods to reduce electricity consumption. Dr. Rosenfeld’s first foray into the […]

Does your Export Plan Take into Consideration Intellectual Property Protection?

Intellectual Property
01/18/2017 - By: E. Martín Enriquez

Deciding when to take a product or service to a foreign market is a difficult decision.  The perceived opportunities presented by the latest hot market can be tempting for a company wanting to grow.  However, exporting is not without risks and challenges.  Many companies expand too early without an adequate export plan that identifies the […]

Why Your “Mundane” Online Promotion May Have Not so Mundane Gambling Consequences (Part II)

Intellectual Property
01/10/2017 - By: Karl Rutledge

My previous post provided an overview of gambling concerns associated with a promotion. This post is an extension of that topic and addresses the need for official rules, some of the necessary provisions to include in such rules, and state registration and bonding requirements. Quality official rules are critical for a promotion. At a minimum, […]

Rocky Mountain Region One Step Closer to an RTO?

Energy & Natural Resources
01/06/2017 - By: Thomas Dougherty

On January 6, 2017, following nearly four years of discussions, the entities comprising the Mountain West Transmission Group (MWTG) announced that they are exploring “potential participation with an existing regional transmission organization (RTO).”  As a first step toward possible membership in an RTO, MWTG members announced that they will have further, detailed discussions with the […]

Why Your “Mundane” Online Promotion May Have Not so Mundane Gambling Consequences

Intellectual Property
01/04/2017 - By: Karl Rutledge

“Almost every company offers sweepstakes and contests, what is the concern?” This is the response I get on almost a daily basis when speaking with clients and their marketing departments about a proposed online promotion. Unequivocally, the Internet and social media have become the most efficient mediums operators use in order to disseminate information and […]

FAME: Here today, not tomorrow.

01/03/2017 - By: Gary Nelson

Opposer, Fruit of the Loom, Inc., owns numerous trademark registrations for its FRUIT OF THE LOOM trademark for clothing, and specifically for underwear.   Applicants filed a trademark application for BODY FRUIT for several clothing items, including undergarments. Opposer filed a Notice of Opposition and, not surprisingly, convinced the TTAB to sustain the opposition in […]

Adding a House Mark to a secondary brand similar to someone else’s mark can either increase OR decrease likelihood of confusion depending upon the circumstances.

12/21/2016 - By: Gary Nelson

Applicant, International Intimates Inc., filed for a trademark application for KISS KISS BY INTERNATIONAL INTIMATES INC. for clothing, including undergarments, lingerie and sleepwear. The application was rejected based on U.S. Trademark Registration No. 3434337 for the mark QISS QISS for clothing, including lingerie and sleepwear.  The TTAB affirmed the refusal. The first argument Applicant lost […]