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Drafting and Negotiating Distribution Agreements: Common Mistakes that Lead to Litigation

Sports & Recreation
09/20/2017 - By: E. Martín Enriquez

Distribution partnerships, like marriages, are entered into during a period of optimism and excitement. You have a great product and you found the right partner who will help you take it to the masses. It’s a relationship that will last a lifetime, right? Maybe. As with any relationship, failure to communicate expectations or poorly communicating …

Tips in Choosing Your Trademark; the Trademark Case of a “Crazy Dog” Wearing Sunglasses

09/19/2017 - By: Mike Koplow, Gary Nelson

What happens when you want to register a word mark, and someone else has an existing trademark for a stylized mark containing similar words? Are you in the clear because they have a large logo in their mark that you do not use? That is the case examined by the Trademark Trial and Appeal Board …

DAPL Developer Sues Environmental Groups

Energy & Natural Resources
09/14/2017 - By: Adam DeVoe

In a remarkable development around the contentious Dakota Access Pipeline (DAPL), the developer of the project, Energy Transfer Equity and Energy Transfer Partners, sued the environmental groups that opposed DAPL. Energy Transfer sued  Greenpeace International, Greenpeace Inc., Greenpeace Fund, Inc., BankTrack, and Earth First! alleging that the: group of co-conspirators (the “Enterprise”) manufactured and disseminated …


Sports & Recreation
09/13/2017 - By: Gary Nelson, Drew Wilson

A Brave New World? Trademarks Containing the F-Bomb and Other Colorful Language WARNING: The trademark world as we know it may be ending. We should all prepare ourselves for a flash flood of offensive registered trademarks containing the seven dirty words George Carlin could never say on TV, and any other allegedly immoral or scandalous …

Second Circuit Rejects Major League Scouts’ Efforts to Take on Baseball’s Antitrust Exemption

Sports & Recreation
09/06/2017 - By: Robert McKirgan

For nearly a century, Major League Baseball (MLB) has enjoyed the benefit of an exemption from the antitrust laws. The controversial and often criticized exemption began with Justice Holmes’ opinion in Federal Baseball Club v. National League, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898 (1922), in which Holmes reasoned that even though the …

Lady Gaga: famous performer; not so famous trademark

09/01/2017 - By: Mike Koplow, Gary Nelson

In the trademark sense, is Lady Gaga famous for clothing? That is a question the Trademark Trial and Appeal Board (the “Board”) sought to answer in the trademark opposition of Ate My Heart, Inc. v. Ga Ga Jeans Limited. Stefani Germanotta, popularly known as Lady Gaga, is a world-renowned singer, songwriter, actress, and public persona.  …

Fashion Copyright Infringement: Unicolors v. Urban Outfitters

08/31/2017 - By: Oliver Bajracharya

“Copying is rampant in the fashion industry!” the headlines read. And, so what? Is copying allowed, and if not, what are the consequences of infringement of protected works? Copyrights protect works of authorship. Familiar examples of copyrightable works are novels, songs and paintings, but particularly relevant to the fashion industry is the copyrightability of fabric …

Category: Copyright

United States May Be Liable as an “Owner”, but not as an “Arranger”, at Former Mining Sites on Federal Property

Energy & Natural Resources
08/31/2017 - By: Stanley Lutz

In a decision that opens the door for Superfund claims against the United States on Forest Service and BLM lands, the Tenth Circuit Court of Appeals recently ruled that the United States federal government may be liable for clean-up costs at former mining sites located on federal land.  In Chevron Mining, Inc. v. United States, …

Can You Trademark the Color Yellow for Cheerios?

Intellectual Property

“There is no blue without yellow and without orange.” — Vincent Van Gogh (June 1888). It is extremely difficult to secure trademark rights to a single color. Success stories are few and far between. Recently, General Mills, maker of Cheerios, sought trademark protection for the color yellow “as the predominant uniform background color on product …

The Eclipse Will Test Utilities’ Solar Grid Integration

Energy & Natural Resources
08/18/2017 - By: Marla Hudgens

On Monday, August 21, 2017, a total solar eclipse will sweep across the continental United States from Oregon to South Carolina. A solar eclipse occurs when the moon moves between the Earth and the sun, thereby obscuring the sun from Earth’s view and creating a shadow on Earth’s surface below. While a partial solar eclipse …

Know the Hurdles Before Building a Rock Climbing Gym or Other Facility

Sports & Recreation
08/17/2017 - By: Marla Hudgens

Opening a rock climbing gym can be a huge, but inspiring endeavor. Designing walls and flooring and engaging contractors to perform the build out. Selecting holds, ropes, shoes, belaying equipment, and crash pads, and then contracting with various manufacturers and industry players for this equipment. These are the many decisions and hurdles a climbing start-up …

Court Breathes Life Into Lawsuit Over Inaccurate Online Data

Intellectual Property
08/16/2017 - By: Shane Olafson

Last Tuesday, the U.S. Court of Appeals for the Ninth Circuit revived a California man’s lawsuit accusing Spokeo, Inc. of violating the Fair Credit Reporting Act (“FCRA”). The FCRA regulates any “consumer reporting agency” that furnishes a “consumer report,” and those terms are broadly defined to include operators such as Spokeo. The lawsuit arose when …

Problematic or Prophetic?

Intellectual Property
08/09/2017 - By: John Carson

The decision by Judge Gilstrap in the Eastern District of Texas, in Raytheon Company v. Cray, Inc., has generated much discussion and misleading commentary. Judge Gilstrap denied Cray’s Motion to Dismiss for lack of personal jurisdiction and improper venue, as follows: The Federal Circuit resolved competing authorities on the issue of “an established place of …

NV Energy’s Latest Net Metering Filing Offers a Cost-Based Solution to the Distributed Generation Industry

Energy & Natural Resources
08/07/2017 - By: Roman Borisov

Pursuant to the timelines set forth in Assembly Bill 405, NV Energy has recently filed new tariffs that affect Nevada’s net metering (NEM) and full requirement customers.  Passed by the Nevada Legislature in June 2017 and supported by the rooftop solar industry, Assembly Bill 405 is the latest manifestation of Nevada’s policy to support rooftop …

Outdoor Retailer Announces Move to Denver

Sports & Recreation
07/06/2017 - By: Emily Bayton, Douglas Tumminello

According to The Denver Post, Colorado has succeeded in its efforts to capture the summer and winter Outdoor Retailer trade shows – a huge boon to Denver, the host city of the trade shows starting in 2018, and underscoring the importance of the outdoor recreation economy overall and to Colorado in particular: The trade …

The Road Ahead: Recent Amendments to the Colorado Vehicle and Powersports Franchise Laws

Sports & Recreation
06/30/2017 - By: E. Martín Enriquez

The distribution of on-highway motorcycles and powersport vehicles, such as off-highway motorcycles, ATVs, snowmobiles, and PWCs (Personal Water Craft) is regulated by various franchise state laws. These laws address a range of issue in the franchise relationship. For example, termination, cancellation, or nonrenewal of the dealership; relocations; and limitation on a dealer’s power to transfer …

Aim For Viral, But First, Legal

Intellectual Property
06/29/2017 - By: Karl Rutledge, Mary Tran

“Impossible, simply impossible.” A common and candid response to the question of whether we can go a day without checking our social media. This simple response embodies the world we live in and the power that social media has over our personal lives. Social media is equally important in the corporate world. Companies ranging from …

How to run away with a trademark someone else has been using for 120 years.

06/29/2017 - By: Mike Koplow, Gary Nelson

That is a question answered in the precedential trademark opposition proceeding of Boston Athletic Association v. Velocity, LLC. The Boston Athletic Association or (“BAA” for short) is the organizer and operator of the well-known Boston Marathon race, held every year on the third Monday in April since 1897.  The BAA has organized the event every …

Patent Bill Aims to Help Inventors Protect and Enforce Patents

Intellectual Property
06/26/2017 - By: Shane Olafson

On June 21, 2017, Sen. Christopher Coons (D-Del) introduced legislation that would limit patent validity challenges at the U.S. Patent and Trademark Office (“PTO”), and strengthen patent owners’ rights in court. The bill is named the Support Technology & Research for Our Nation’s Growth and Economic Resilience Act, or the “STRONGER Patents Act of 2017,” …

Supreme Court Rules That Government Cannot Ban Offensive Trademarks

Sports & Recreation
06/21/2017 - By: Emily Bayton, Daniel Salgado

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, …

Oil States Energy Services LLC v. Greene’s Energy Group, LLC

Intellectual Property
06/20/2017 - By: Terry Ahearn

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 …

Skechers Kicks Adidas’ Claims In Sneaker Patent Case – Law360

Sports & Recreation
06/15/2017 - By: Gary Nelson

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 …

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

06/13/2017 - By: Mike Koplow, Gary Nelson

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 …

Supreme Court Boosts Biosimilars By Allowing Early Notice

Intellectual Property
06/13/2017 - By: Holly Logue

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 […]

Trump Administration Working to Repeal and Replace the Clean Water Rule

Energy & Natural Resources
06/07/2017 - By: Roman Borisov, Dietrich Hoefner

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 […]

Supreme Court Finds Patent Exhaustion Alive and Well

Intellectual Property
06/02/2017 - By: Shane Olafson, Ryan Swank

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 […]

U.S. Supreme Court Issues Ruling Substantially Curtailing Available Venue for Patent Infringement Actions

Intellectual Property
05/22/2017 - By: Art Hasan

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 […]

Energy Legislation in the 2017 Colorado General Assembly

Energy & Natural Resources
05/19/2017 - By: Dieter Raemdonck

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 […]

Artist Files Suit Over Destruction of Renowned Mural Alleging Violation of VARA

Intellectual Property
05/17/2017 - By: John Carson, Sal Wakil

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 […]

Category: Copyright

Chevron Deference in Arizona?

Energy & Natural Resources
05/08/2017 - By: Gregory Harris

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 […]