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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
02/24/2017 - By: Mark Davidson

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
02/21/2017 - By: Mark Davidson

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
01/31/2017 - By: Mark Davidson

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 […]

Liability Waivers for Minors

Sports & Recreation
12/21/2016 - By: Douglas Tumminello

You know the drill – take your child to a birthday party at a trampoline complex, rock climbing gym or parkour center, and sign a release before your child can participate. When your child is injured, is that release enforceable? Are you (or your child) without recourse? As with most things, it depends. “Exculpatory contracts” […]

A Potential Shift in Focus for Arizona’s Renewable Energy Standard

Energy & Natural Resources
12/14/2016 - By: Stanley Lutz

Arizona’s Corporation Commission is considering the modernization and expansion of Arizona’s Renewable Energy Standard and Tariff (Commission Docket No. E-00000Q-16-0289).  The current Chairman of the Commission, Doug Little, has suggested doubling the amount of power that Arizona utilities obtain from renewable sources from 15 percent to 30 percent by 2030.  On December 9, 2016, Commissioner […]

Due Diligence Before Buying That Former Dry-Cleaning Property—EPA Adds Subsurface Intrusion to Superfund Hazard Ranking System

Energy & Natural Resources
12/13/2016 - By: Dietrich Hoefner

Last week, EPA finalized a rule that will allow it to consider subsurface intrusion (most commonly found as “vapor intrusion”) when deciding whether to add a site to the CERCLA National Priorities List (“NPL”).  The addition will enable EPA, using its “Hazard Ranking System,” to directly consider the human exposure to contaminants that enter building […]

Supreme Court Chisels Away Damages for Design Patents

Intellectual Property
12/08/2016 - By: Shane Olafson

Yesterday the Supreme Court tossed out a $400 million award that Apple had won against its smartphone rival Samsung.  The decision was the Court’s first unanimous ruling on design patents in more than a century, and will have broad implications for litigation involving design patents. Prior to this ruling, infringers of a design patent were […]

The 2016 Election Is (Finally) Over. Now What?

Energy & Natural Resources
12/05/2016 - By: Dieter Raemdonck

If you have watched television in the last few week, you may have noticed a pleasant lack of campaign advertisements during your favorite shows.  Whether pleased or disappointed with the outcome, it is time to start thinking about what the 2016 election means for Colorado going forward.  Below, we outline the results of the election […]

A Toe Shoe By Any Other Name

Sports & Recreation
11/30/2016 - By: Emily Bayton

Vibram, a shoe company perhaps best known for its unique split-toe running shoe design, recently prevailed in a trademark and rights of publicity dispute against the heirs of late Ethiopian Olympic marathoner Abebe Bikila related to its use of the BIKILA name in connection with its toe shoe line without obtaining permission from the Bikila […]

Word mark registrations TRUMP stylized versions; and there really are 3 for 1 specials in trademark law for clothing.

11/30/2016 - By: Gary Nelson

Applicant applied for the following mark incorporating the stylized letters “DF”: for a variety of clothing items.  The application was refused registration because of the existence of United States Trademark Registration No. 2827030 for the word mark DF, also for a variety of clothing items, with some overlap with the refused application.  The TTAB affirmed […]

A Clean Energy Conundrum

Energy & Natural Resources
11/28/2016 - By: Mark Davidson

A recent New York Times article (“Windmill and Solar Panels, or Nuclear Reactors”, NY Times, 11/14/16) highlights what could be an interesting dilemma for both developing and industrialized nations seeking to de-carbonize in tandem with the Paris Accord. The article describes the tension between the development of concentrated solar power (CSP) and the potential use […]

Federal Court Limits FTC’s Power to Police Data Breaches

Intellectual Property
11/21/2016 - By: Shane Olafson

The Federal Trade Commission (FTC) is the government agency primarily responsible for imposing penalties on companies that fail to protect consumer data.  It does so under Section 5 of the Federal Trade Commission Act, which prohibits “unfair and deceptive acts or practices in or affecting commerce.” This case began in 2008, when someone found a […]

Applicant’s ENDORPHIN HIGH expires when he crashes into existing registration.

11/18/2016 - By: Gary Nelson

Applicant filed for a trademark application for ENDORPHINS for “hats; sweatshirts; t-shirts; tank tops.”  (Seriously,…does anyone wear tank tops anymore?) The application was rejected based on U.S. Trademark Registration No. 3927040 for the mark shown below: for a variety of clothing items including hats and t-shirts.  The TTAB affirmed the refusal. While this is a […]

Court Approves Volkswagen Partial Consent Decree: Tribes Entitled to $50 Million for NOx Emission Mitigation

Energy & Natural Resources
11/11/2016 - By: Pilar Thomas

On October 25, 2016, the federal district court in the Northern District of California approved the United States’ Amended Consent Decree to resolve claims against German automaker Volkswagen AG and related entities (VW) and to settle allegations of cheating emissions tests, deceiving customers, and excess nitrous oxides (NOx) emissions from VW and Audi diesel engine […]

Arizona Court of Appeals Permits Utility to Seek Preemption of State Property Taxes on Power Plant Located on Tribal Land

Energy & Natural Resources
11/10/2016 - By: Gregory Harris

On November 3, 2016, the Arizona Court of Appeals allowed South Point Energy Center, LLC (“South Point”) to pursue challenges to the assessment of property taxes for tax years 2010 and 2011 and for 2012 and 2013 on its power plant on the Fort Mojave Indian Reservation.  The appeals court reversed the decision of the […]