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EPA Seeks Comment on Possible Regulation of Groundwater Discharges

Energy & Natural Resources
03/14/2018 - By: Dietrich Hoefner

The U.S. Environmental Protection Agency (EPA) recently requested public comments on whether pollutant discharges that reach “waters of the United States” are subject to regulation under the Clean Water Act (CWA) and require National Pollutant Discharge Elimination System (NPDES) permits. This announcement comes on the heels of a recent Ninth Circuit decision finding that certain …

EPA Seeks Clarity on How Broadly the Clean Water Act Applies

Energy & Natural Resources
03/13/2018 - By: Dietrich Hoefner

Are Groundwater Discharges Regulated Under Clean Water Act? EPA Seeks Comments. The U.S. Environmental Protection Agency (EPA) recently requested public comments on whether pollutant discharges that reach “waters of the United States” are subject to regulation under the Clean Water Act (CWA) and require National Pollutant Discharge Elimination System (NPDES) permits. This announcement comes on …

Claim Construction: A Hard Pill to Swallow for the Unwary

Intellectual Property
02/28/2018 - By: Dustin Szakalski

The process of construing the disputed terms of a patent is a seminal stage in many patent cases. The outcome-determinative nature of a claim construction order leads many parties to stipulate to a judgment of infringement or non-infringement so the disadvantaged party may appeal the unfavorable construction. A recent claim construction order by the Delaware …

eSports Legislation in Maryland

Sports & Recreation
02/27/2018 - By: Karl Rutledge

On January 19, 2018, Maryland House Bill 283 was introduced by Republican Delegate Robin Grammer. The bill exempts competitive video games, known as eSports, from the state’s laws banning wagering and gambling. “eSports” is defined as video games such as first-person shooters, real-time strategy games, and multiplayer online battle arenas in which: players compete against …

The Fate of WHOIS Under the GDPR: Privacy and Safety on the Internet

Intellectual Property
02/23/2018 - By: Anne Aikman-Scalese

As of May 25, 2018, a new EU regulation will make the collection of data and tracking of online selling activity illegal – potentially shielding would-be counterfeiters and trademark infringers from detection in the purchase and sale of counterfeit goods. By Anne Aikman-Scalese Privacy advocates hail the new EU General Data Protection Regulation (GDPR) as …

Proposed Energy Modernization Plan: Tribes and Clean Energy Proponents Can Likely Benefit

Energy & Natural Resources
02/16/2018 - By: Pilar Thomas

On January 30, 2018, Arizona Corporation Commissioner Andy Tobin proposed a new “Energy Modernization Plan” for the state of Arizona.  The proposed plan seeks to implement a comprehensive approach to develop  clean energy resources for Arizona’s electricity infrastructure.  Even though Tribes are not mentioned in the plan, Tribes and clean energy proponents should consider the …

Tribal Clean Energy Development: 2017 Changes and 2018 Opportunities

Energy & Natural Resources
02/14/2018 - By: Pilar Thomas

Executive Orders and Agency Changes to Watch During 2017 there were several key sets of action – at the federal, state, local, and industry levels –that have, or will, directly impact Indian clean energy development opportunities. Some of these actions will benefit Indian tribes seeking to develop clean energy resources or becoming more energy self-sufficient.  …

Stone Brewing Sues MillerCoors for Trademark Infringement

Intellectual Property
02/13/2018 - By: Cindy Villanueva

Stone Brewing Co., the ninth largest independent craft brewery in the United States, has taken aim at MillerCoors LLC and Molson Coors Brewing Company, filing suit in the United States District Court, Southern District of California for trademark infringement, false designation of origin, trademark dilution, unfair competition and declaratory relief. On Monday afternoon, Greg Koch, …

From "tequila" to "TEQUILA®" – Registering a Generic Term

Intellectual Property
02/09/2018 - By: David Plumley

The trademark lawyers sternly warn us: “Don’t let your trademark become generic!” They tell us horror stories: ASPIRIN was once a trademark, but became generic from improper use. Same thing for ESCALATOR and INTERNET. Some trademark owners implement aggressive marketing campaigns to prevent this terrible fate: “It’s KLEENEX® brand facial tissue,” or “VELCRO® brand hook-and-loop …

Supreme Court Recently Issued Opinion That Will Impact Clean Water Act Litigation

Energy & Natural Resources
02/08/2018 - By: Stanley Lutz

The United States Supreme Court recently issued a unanimous opinion on a procedural matter that will have a significant impact on future Clean Water Act litigation.  In National Association of Manufacturers v. Department of Defense, issued on January 22, 2018, the Court determined that challenges to the Waters of the United States Rule must be …

Craft Beer Trademarks: Innovative, Inspiring and…Infringing?

Intellectual Property
02/05/2018 - By: Oliver Bajracharya

If you’re thirsty and of legal drinking age, you are likely within a stone’s throw of being able to enjoy the cadre of remedial tonics offered at a craft brewery. There are now over six thousand breweries in the United States, a new record, with over 80 percent of American adults living within 10 miles …

Denver Green Roof Initiative Passes – Will Businesses Lose Some Green on their Balance Sheets?

Energy & Natural Resources
01/31/2018 - By: Dieter Raemdonck

Denver voters recently passed a ballot measure, Initiative 300, also known as the Denver Green Roof Initiative, that has many developers and real estate owners seeing red. Or, maybe green. Despite opposition from Mayor Hancock, the Denver Post, and others, and a huge spending advantage for developers opposing the measure, 54 percent of voters gave …

Mitigating the Risk of Infringing Goods by Working with U.S. Customs and Border Protection

Sports & Recreation
01/29/2018 - By: E. Martín Enriquez

A company’s brand is among its most valuable assets. Therefore, protecting a company’s trademarks is critically important. The importation into the United States of infringing goods presents a substantial brand risk to trademark owners. Few people are aware of the role that the U.S. Customs and Border Protection (CBP) plays in enforcing intellectual property rights …

Monetize Your Meme: "Grumpy Cat" Wins Copyright and Trademark Verdict

Intellectual Property
01/26/2018 - By: G. Bleeker

For those unfamiliar, Grumpy Cat is a “viral meme” of a “stern-looking house cat named Tardar Sauce.”1 A former Time Warner cable technician first posted the photo of his sister’s “Grumpy Cat” on Reddit in September 2012.2 At least four copyright registrations and a trademark registration related to Grumpy Cat have been registered in the …

Senior Tax Partner Informs Outdoor Retailer Crowd of Tax Reform Impact on Domestic Manufacturers

Sports & Recreation
01/26/2018 - By: Douglas Tumminello

At Outdoor Retailer, Lewis Roca Rothgerber Christie Senior Tax Partner Jim Walker updated the Outdoor Industry Association’s Made in America Working Group on the impact of federal tax reform on domestic manufacturers. The new rules providing for the immediate expensing of the cost of qualified property is guaranteed to have a major impact on any …

New Mexico Reviews the Impact of 2017 Federal Tax Cuts and Jobs Act on Regulated Utilities

Energy & Natural Resources
01/25/2018 - By: Jeffrey Albright

On Wednesday, January 24, 2018, the New Mexico Public Regulation Commission (PRC) issued an “Order Commencing Review of the Effects of the Federal Tax Cuts and Jobs Act of 2017 (TCJA) on Regulated New Mexico Utilities.”  The Commission recognizes that the TCJA may have a major effect on the earnings and overall financial condition of …

Bleeker Gives Insight on Valuation in Lundgren/Microsoft Copyright Case

Intellectual Property

Intellectual property partner, Warren Bleeker, was recently quoted in the San Fernando Valley Business Journal on the valuation associated in a copyright case involving the violation of Microsoft Corp.’s intellectual property rights. The case consisted of a felony-level counterfeiting scheme that saw the creation of 28,000 copies of “Dell restore CDs” – software that replaces …

Category: Copyright

Outdoor Retailer + Snow Show Kicks Off in Denver This Week

Sports & Recreation
01/23/2018 - By: Douglas Tumminello

Outdoor Retailer + Snow Show, the largest trade show in the outdoor industry, is set to kick off in Denver this week. Some 1,000 outdoor-oriented brands will be exhibiting in the Colorado Convention Center during the four-day event while the Outdoor Industry Association, a lead sponsor of Outdoor Retailer, hosts educational forums, presentations, and entertainment …

Intellectual Property Partner Summits Antarctica’s Mt. Vinson

Sports & Recreation
01/22/2018 - By: Gary Nelson

On Christmas day, intellectual property partner, Gary Nelson, capped his holiday journey to “ground zero for adventure tourism” by summiting  16,050 foot Mt. Vinson, Antarctica’s highest peak. Nelson, who has now scaled six of the “Seven Summits” – the highest points on each continent – was interviewed by the San Fernando Valley Business Journal about …

Colorado Liquor Law Working Group Releases Report on Changes to Retail Liquor Licenses

Energy & Natural Resources
01/18/2018 - By: Dietrich Hoefner

On December 29, 2017, the SB 16-197 Working Group released its report to the Senate Business, Labor, and Technology Committee and the House Business Affairs and Labor Committee making recommendations on the implementation of the sweeping changes to Colorado Liquor Law that were signed into law by Governor Hickenlooper in 2016. SB-197 addressed the regulation …

Multiple Parties Enter Rate Case Negotiations to Benefit New Mexico Utility Customers

Energy & Natural Resources
01/17/2018 - By: Jeffrey Albright

A proposed reduction of $4.4 million to Public Service Company of New Mexico’s capital investment requirement combined with savings from the recently enacted tax legislation may still yield a fee increase for consumers of approximately 2% spread over two years. In response to the New Mexico Public Regulation Commission (PRC) Revised Order Partially Adopting Certification …

Does the Experimental Use Exception in Patent Law Have a Future?

Intellectual Property
01/11/2018 - By: Kris Kostolansky, Daniel Salgado

The experimental use exception, part of U.S. patent law for nearly two centuries, is becoming obsolete. Recent court decisions and changes under the America Invents Act (AIA)1 have raised doubts about the continued viability of the doctrine. Additionally, other legal provisions that offer protections similar to those of the experimental use doctrine and reduce the need …

Will New Mexico Utility Customers Be First in Country to Benefit from the Recently Passed Corporate Tax Bill?

Energy & Natural Resources
01/11/2018 - By: Jeffrey Albright

On Wednesday, January 10, 2018, the New Mexico Public Regulation Commission (PRC), in a 3-2 vote, accepted a modified stipulation in an electric rate case for Public Service Company of New Mexico (PNM). The approval by the Commission, if accepted by the stipulation signatories, would result in a 2% increase, spread over two years, for …

Patent Marking – An Ounce of Prevention

Intellectual Property
12/27/2017 - By: D. Stuart Bartow, Kyle Kellar

When one party is found to have infringed the patent rights of another, the often-difficult task of calculating economic damages begins. As one step in this process, the time period during which damages have accrued must be determined. When damages begin to accrue is considered primarily in light of when the infringing party was made …

EPA Declines to Impose CERCLA Financial Assurance Regulations on Hardrock Mining

Energy & Natural Resources
12/05/2017 - By: Carla Consoli

The U.S. Environmental Protection Agency (EPA) signed a final action declining to impose financial assurance regulations on the hardrock mining industry under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This proposal was directed at managing the financial cost of hardrock mining, particularly the cost of cleanup in situations where the …

Supreme Court Declines Review of Ninth Circuit Agua Caliente Decision – Reserved Tribal Water Rights Include Groundwater

Energy & Natural Resources
12/05/2017 - By: Dietrich Hoefner

On November 27, 2017, the Supreme Court denied review of the Ninth Circuit’s decision in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262 (9th Cir. 2017). In that case, an Indian tribe brought an action against a California water district and desert water agency seeking a declaration that it …

EPA Directive Provides Additional Opportunities for Stakeholder Participation in Consent Decree Negotiations

Energy & Natural Resources
12/01/2017 - By: Dietrich Hoefner

On October 16, 2017, EPA Administrator Scott Pruitt released a directive that instructs the agency to follow new procedures related to the settlement of lawsuits against the agency. Specifically, the directive requires EPA to: Publish online any notices of intent to sue that it receives from potential litigants. Publish complaints and petitions in which it …

Could Your Service Mark Someday Appear on a Branded Product?

11/29/2017 - By: Anne Aikman-Scalese, Mike Koplow

Consider Adding Trademark Classes to Aid Enforcement of Brand Identity In trademark law, marks come in two distinct flavors: trademarks that are used to identify the source of tangible products, and service marks that identify the source of services. As one example, colleges are in the business of providing education and commonly obtain federal service …

Challenge to Electrical Generation Property Valuation Must Be Filed Timely

Energy & Natural Resources
11/28/2017 - By: Gregory Harris

State agencies are often given broad powers to adjudicate disputes, with the courts having the responsibility to review agency decisions. The timeline to review agency decisions may seem obvious, but the facts sometimes may create confusion, and in turn thwart the timely initiation of the action, which is essential for judicial review to be sought. …

Supreme Court Case Could Have Huge Impact on Challenging Patents

Intellectual Property
11/28/2017 - By: Terry Ahearn, D. Stuart Bartow

Supreme Court of the United States On November 27, 2017, the U.S. Supreme Court heard oral argument in Oil States Energy Services LLC v. Greene’s Energy Group, LLC, a case examining the constitutionality of inter partes review proceedings before the United States Patent and Trademark Office (“PTO”). Specifically, the case addresses the question “[w]hether inter …