Blog Articles

In a greatly-anticipated decision (particularly by the Washington Redskins), the Supreme Court ruled today that the U.S. government cannot refuse federal registration of an offensive trademark, holding that such a restriction violates the First Amendment.  The decision was a significant victory for not only Simon Tam (respondent in the case) and his band, The Slants, …

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Oil States Energy Services LLC v. Greene’s Energy Group, LLC 639 F.App’x 639 (Fed. Cir. 2016), cert. granted (June 12, 2017) (No. 16-712) Supreme Court of the United States The Supreme Court has granted certiorari in Oil States Energy Services LLC v. Greene’s Energy Group, LLC to examine the constitutionality of inter partes review proceedings …

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When it comes to shoes, patents and trademarks are a good fit when it comes to protecting one’s intellectual property rights.  This article is noteworthy, not because the Plaintiff did not prevail on its patent claims, but because it reminds athletic clothing/footwear brands that that protection is not all about trademarks….utility and design patents can …

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Nieves & Nieves LLC sought to register the word mark ROYAL KATE for a number of fashion products, including cosmetics, jewelry, handbags, bedding, and clothing.  The application included a statement that the mark “does not identify a particular living individual.” In the precedential opinion in In re Nieves & Nieves LLC, the Trademark Trial and …

Continue reading "A nickname for a celebrity can be as good as his/her real name, regardless of whether the celebrity uses the trademark themselves"

The Biologics Price Competition and Innovation Act of 2009 (“BPCIA”), codified in 42 U.S.C. § 262, ushered in a new wave of patent litigation for large molecules, and a bounty of questions regarding the application and interpretation of the statue.  In Sandoz v. Amgen, –U.S.–, June 12, 2017, The Supreme Court weighed in for the […]

Wetlands in front of the Lincoln Memorial, 1917, before construction of the reflecting pool On February 28, 2017, President Trump signed an executive order directing EPA to review the “Waters of the United States Rule” (the “WOTUS” Rule). Exec. Order No. 13778, 82 Fed. Reg. 12497 (Feb. 28, 2017). The order directed EPA and the […]

Under the longstanding doctrine of patent exhaustion, a patentee’s rights are “exhausted” once an authorized sale has occurred.  For many years, however, some courts have recognized exceptions to the doctrine, such as when the parties agree to various post-sale restrictions in an arms-length transaction, or where the patented item was first sold outside of the […]

In a significant and long-waited ruling governing patent litigation, the Supreme Court today in TC Heartland v. Kraft Foods reversed long standing lower court precedent that enabled patent owners, with relatively few restrictions, to sue corporate defendants in jurisdictions in which alleged infringement occurred.  Many corporations market and sell products directly or indirectly throughout the United […]

The First Regular Session of the Seventy-First General Assembly adjourned sine die on May 10th, wrapping up 120 days of work for the people of Colorado. The session was primarily dominated by two big issues: budget and transportation. After years of debate, legislators reached a compromise on the infamous hospital provider fee. By moving the […]

A noted designer and illustrator who worked on “Star Trek: The Next Generation,” has filed a lawsuit over the destruction of his Los Angeles “Six Heads” mural, alleging violation of the Visual Artists Rights Act (VARA) and the California Art Preservation Act. The case is Thrasher v. Siegel et al., case number 2:17-cv-03047, in the […]

In Arizona, like in Washington, a debate is unfolding about how courts should determine “questions of law”, and whether an agency’s construction of statutes is entitled to deference by the courts.  Some refer to this deference as Chevron Deference, stemming from a 1984 U.S. Supreme Court decision. The recent confirmation proceedings of Justice Neil Gorsuch triggered a spirited debate among policy makers and opinion writers about whether an agency’s reading of its statutes should be given any weight […]

These are two of the questions the TTAB sought to answer in the proceeding of Under Armour, Inc. v. Evade, LLC.  In this proceeding, Under Armour sought to cancel Evade’s trademark registration to its word mark EVADE OFFSHORE ARMOR and oppose Evade’s trademark application for the word mark EVADE OUTDOOR ARMOR, with all accusations being […]

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:  https://outdoorindustry.org/resource/2017-outdoor-recreation-economy-report/  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 […]

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 […]

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, […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 http://smallbusiness.house.gov/resources/committee-publications.htm, 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 […]

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 […]