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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 […]

Can the marks EVADE OFFSHORE ARMOR and EVADE OUTDOOR ARMOR cause a likelihood of confusion with the mark ARMOUR?

04/30/2017 - By: Mike Koplow

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 […]

The Outdoor Recreation Economy

Sports & Recreation
04/25/2017 - By: Emily Bayton, Douglas Tumminello

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:  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 […]

Fame is fleeting, especially for the TTAB.

04/20/2017 - By: Mike Koplow, Gary Nelson

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 […]

Turns out: Alice is a Wonderland for Sports Fans and Digital Content Distributors….Go ALICE!!!!

Sports & Recreation
04/19/2017 - By: Gary Nelson

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, […]

Colorado Proposes New Cybersecurity Regulations for Investment Advisors and Broker-Dealers

Intellectual Property
04/11/2017 - By: Shane Olafson

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 […]

IoT Retailer Settles Privacy Class Action for $3.75M

Intellectual Property
04/10/2017 - By: Shane Olafson

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 […]

The Federal Circuit Already Follows ABA and IPO Recommendations

Intellectual Property
04/10/2017 - By: John Carson

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 […]

Copyright or Wrong: The Debate Over the Financial Benefits in Collegiate Sports is Not a Slam Dunk.

Sports & Recreation
04/07/2017 - By: Gary Nelson

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 […]

Don’t Be Left Flat: Words Matter When Drafting Patent Claims

Intellectual Property
04/06/2017 - By: Dustin Szakalski

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 […]

Appeals Court Throws-Out Utility Easement Damages Award – For Now

Energy & Natural Resources
04/03/2017 - By: Thomas Dougherty

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 […]

User-Generated Content Concerns for Promotional Offerings

Intellectual Property
03/31/2017 - By: Karl Rutledge

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 […]

Fashion Faux Pas – Copiers Beware! Supreme Court Strengthens Copyright Protection


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 […]

Star Athletica, L.L.C. v. Varsity Brands, INC. ET AL.

Intellectual Property
03/29/2017 - By: John Carson

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 […]

Category: Copyright

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 […]