Recent Blog Posts

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 […]

Nevadans Overwhelmingly Give First-Round Approval to Deregulating the State’s Power Production

Energy & Natural Resources
11/10/2016 - By: Roman Borisov

The Energy Choice Initiative, State Question No. 3, received close to three quarters of the votes cast on Tuesday.  The question on the ballot read: Shall Article 1 of the Nevada Constitution be amended to require the Legislature to provide by law for the establishment of an open, competitive retail electric energy market that prohibits […]

Court Adopts Patent Analysis in Trademark Cases

Intellectual Property
10/25/2016 - By: Shane Olafson

On October 24, 2016, the U.S. Ninth Circuit Court of Appeals held that the U.S. Supreme Court’s holding in the 2014 patent case Octane Fitness also applies to trademark cases.   As background, Section 285 of the Patent Act authorizes federal courts to award the winner its attorney’s fees in “exceptional cases.”  Prior to Octane […]

Fashion Blog: Industry May be Left Defenseless Against Infringers

Intellectual Property

Fashion designers could be left defenseless against copycats if the US Supreme Court rules that certain features are not protected under the Copyright Act. The Supreme Court will soon hear oral argument in Varsity Brands, Inc. v. Star Athletica, LLC.  At issue is what, according to Petitioner Star Athletica, LLC, is “the most vexing, unresolved […]

Fashion Industry May be Left Defenseless Against Infringers


Fashion designers could be left defenseless against copycats if the US Supreme Court rules that certain features are not protected under the Copyright Act.  The Supreme Court will soon hear oral argument in Varsity Brands, Inc. v. Star Athletica, LLC.  At issue is what, according to Petitioner Star Athletica, LLC, is “the most vexing, unresolved […]

Western Markets Continue to Get Organized – New Developments

Energy & Natural Resources
10/25/2016 - By: Thomas Dougherty

While recent news stories focus on telecom and entertainment giants AT&T and Time Warner exploring a merger that could reshape their respective industries, electric utilities in the Western United States and Mexico are exploring their own economies and efficiencies that may come from participating in or establishing organized electric and transmission markets. Last week, Mexico’s […]

Deregulate or Re-Regulate, That is the Question

Energy & Natural Resources
10/20/2016 - By: Mark Davidson

Nevada voters will go to the polls November 8 with more than the choice of the country’s next president on their ballot.  A ballot measure supported by the Las Vegas casinos would amend the state constitution to direct the Nevada legislature to create rules enabling the end of monopoly electric utility service.  A second vote […]

Hardrock Mining Financial Assurance Rule Goes to the White House for Review—December 1st Deadline Approaching

Energy & Natural Resources
10/18/2016 - By: Dietrich Hoefner

EPA’s proposed rule for CERCLA financial assurance for hardrock mining went to the White House last week for OMB review as the December 1st publication deadline set by the D.C. Circuit rapidly approaches. Section 108(b) of CERCLA directs EPA to develop requirements that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration […]

Western Electricity Market Watch: CAISO Releases New Draft of Its Proposal for a Western RTO

Energy & Natural Resources
10/13/2016 - By: Dietrich Hoefner

A new draft of the California ISO’s Proposal for “Principles for Governance of a Regional ISO” was released last week on October 7.  The document lays out a vision for expanding CAISO to become a regional RTO encompassing other western states and was accompanied by a Discussion Paper and Draft Proposal on “Potential Topics within […]

California Enacts Legislation to Protect Park Names

Intellectual Property
10/12/2016 - By: Emily Bayton

California recently enacted a bill prohibiting concessionaires from claiming trademark rights in a mark that “incorporates or implies an association with a state park venue, or its historical, cultural, or recreational resources.” The full text of the California Heritage Protection Act, AB 2249, can be found at  The bill, which goes into effect January […]

Beers in the Backcountry.

Sports & Recreation
10/04/2016 - By: Douglas Tumminello

Readers of National Geographic Magazine were treated this month to an interesting article titled Unplugging the Selfie Generation, about the challenges and rewards of getting young people into our National Parks – what does “back to nature” mean to a generation reportedly more interested in technology than in backcountry hikes.  Upslope Brewing Co., as the […]

California’s Carbon Concern: Leakage from the Imbalance Market

Energy & Natural Resources
09/28/2016 - By: Dietrich Hoefner

As interest in the Western Energy Imbalance Market  (“EIM”) grows, regulators  at the California Air Resources Board (“CARB”) are facing concerns, once again, about carbon leakage from the state’s mandatory cap and trade program under AB 32. In the context of carbon markets, leakage describes the phenomenon in which a local (in this case, California) […]

BLM Increases Mineral Cost Recovery Fees

Energy & Natural Resources
09/23/2016 - By: Carla Consoli

If you operate on lands managed by the Bureau of Land Management (BLM) or anticipate doing so in the future, please note that some of the BLM fees are increasing.  Beginning on October 1, 2016, BLM plans to implement a new fee schedule to recover costs resulting from processing actions such as lease applications, name […]

Energy Imbalance Market Marches on: FERC Conditionally Approves APS Request to Participate in EIM

Energy & Natural Resources
09/21/2016 - By: Dietrich Hoefner

The California ISO’s (“CAISO”) initiative to make energy imbalance market services available to balancing authorities throughout the Western Interconnection has claimed another success. On August 31, FERC conditionally approved Arizona Public Service Company’s (“APS”) request to participate in the Western Energy Imbalance market (“EIM”), but denied APS its request to utilize true market-based rates in […]

Deceptive marks always start off with two strikes against them.

09/18/2016 - By: Gary Nelson

Applicant applied for the mark BLAZING SILKS for a variety of clothing products.  Applicant also made clear that its products were not made from silk.   FIRST STRIKE:  Had Applicant’s products been made from silk, the USPTO would have deemed the word “silk” to be merely descriptive and would have required Applicant disclaim “silk” apart […]

States Step Up Cyber Protection for Consumers

Intellectual Property
09/12/2016 - By: Shane Olafson

As data breaches increase in profile and frequency, lawmakers are struggling to protect their citizens from cybercrime.  Within the past year, at least four states have beefed up their data security statutes to provide greater consumer protection.   According to a May 2016 summary by the National Conference of State Legislatures, more than 25 states in 2016 […]

Agritourism on the Rise

Sports & Recreation
09/09/2016 - By: Douglas Tumminello

“Agritourism” is a new term for the intersection of adventure tourism and agriculture.  According to the State of Colorado – a traveler’s interaction with farmers, ranchers, hunters, artists, naturalists and food enthusiasts that leads to the discovery of geographically distinctive experience, food and drink.  According to a recent US Census of Agriculture, the number of […]

Would You Like the Data Theft Option with that Rental Car?

Intellectual Property
09/07/2016 - By: Shane Olafson

According to a recent Federal Trade Commission (“FTC”) blog post, consumers should think twice before connecting their cell phones to a rental car.   The FTC warns that the vehicle could record all kinds of data, including your personal contacts, location, web browsing, and even your text messages. This blog post written by an FTC staff attorney […]

Seriously: One can use another’s trademark on products to make a joke.

09/02/2016 - By: Gary Nelson

Defendant makes cheap looking handbags with the phrase MY OTHER BAG…affixed to one side and an image of a Louis Vuitton bag featuring its famous design pattern on the other side Louis Vuitton sued the Defendant alleging its pattern mark is famous and that the use of this pattern by the Defendant on a handbag […]

Governor Hickenlooper Considers Executive Action to Cut Carbon from Colorado’s Power Sector?

Energy & Natural Resources
08/25/2016 - By: Dietrich Hoefner

With the Clean Power Plan currently stayed in federal court, Colorado Governor John Hickenlooper appears to be considering his own options to act unilaterally on climate change. In a draft executive order leaked this week, the Governor’s office recounts the challenges of clean air and climate change and directs Colorado’s state agencies as follows: Colorado […]

Riding Your e-Bike ‘wherever’ you want?

Sports & Recreation
08/25/2016 - By: Douglas Tumminello

Bike ride, anyone?  Electric bicycles – e-bikes – are quickly growing in popularity as technology improves and prices fall, and regulations are working to catch up.  Currently, a patchwork of laws, regulations, and even definitions abound, confusing what types of bikes can be used where.  Generally, e-bikes, which have an integrated electric motor for propulsion, […]

Who Moved My Beer? (Part 2) – Hangover Prevention

Intellectual Property
08/23/2016 - By: Griffin Lee

Recap In Part 1, we examined what happened to [LAST NAME] Brewing (formerly Dale Bros. Brewery). After growing as a craft brewery for 11 years, they felt they were large enough as a company to file for a trademark to protect their name… and then got denied. These types of situations are more common than […]

Practice Pointer: NEVER NEVER ever ever sell your name….unless “they” pay you a lot of money.

08/18/2016 - By: Gary Nelson

The fashion industry is blessed with many ultra-talented designers.  And it is quite common for a talented and well-known designer to seek out investors in order to create a brand around the designer’s name.  Joseph Abboud and Adriano Goldschmied come to mind as examples. Typically, when a designer and investors team up, a corporate entity […]

New Antitrust Rules for IP – Comment Period Now Open

Intellectual Property
08/15/2016 - By: Shane Olafson

The Federal Trade Commission and Department of Justice proposed on August 12, 2016 to revise the Antitrust Guidelines for the Licensing of Intellectual Property (the “IP Licensing Guidelines”) for the first time in over two decades.  Since 1995, the IP Licensing Guidelines have provided guidance to businesses and the public regarding potential antitrust issues that […]