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Category Archives: First Amendment

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While the Slants are in the Spotlight, Chief Wahoo is on Deck

Posted in First Amendment, USPTO

Throughout the past decade, attorneys, judges, plaintiffs, and defendants have invested thousands of hours in the fight over offensive trademarks. Most of the public is aware of the controversy surrounding the Washington Redskins, who continue to be embroiled in litigation that is currently pending with the Federal Court of Appeals for the Fourth Circuit. But… Continue Reading

Congratulations to Howard University’s 2017 McGee National Civil Rights Moot Court Team

Posted in Articles, Branding, First Amendment, Law Suits, Marketing, Trademarks, TTAB, USPTO

It’s not every year that participants in the William E. McGee National Civil Rights Moot Court Competition need to understand the various nuances of federal trademark law. Yet, with the Lee v. Tam case pending before the U.S. Supreme Court, and Section 2(a) of the Lanham Act hanging in the balance, this was such a… Continue Reading

McCarthy Institute Trademark Seminar 2017

Posted in Advertising, Articles, Branding, Copyrights, Dilution, Famous Marks, First Amendment, Marketing, Trademarks, TTAB, USPTO

One of the current challenges in trademark law addressed in Seattle last week at the Amazon Corporate Conference Center, host of the 2017 McCarthy Institute and Microsoft Corporation Symposium, is an issue we have discussed quite a bit here, namely Trademark Disparagement and the First Amendment. The panel to discuss this weighty topic included the… Continue Reading

Second Circuit Agrees: Louis Vuitton Can’t Take a Joke

Posted in Branding, Copyrights, Dilution, Fair Use, Famous Marks, Fashion, First Amendment, Infringement, Law Suits, Trademark Bullying

If you’re still looking for holiday gift for that special someone, the Second Circuit has your back. Fresh off the docket, the Second Circuit gave its blessing to My Other Bag’s line of parody canvas tote bags. For additional background, you can read our discussion of the District Court’s grant of summary judgment to the… Continue Reading

Supreme Court Benches Dan Snyder’s Team

Posted in Articles, Branding, First Amendment, Law Suits, Marketing, Trademarks

Last week the U.S. Supreme Court agreed to hear Mr. Simon Tam’s arguments and review the Court of Appeals for the Federal Circuit’s majority decision striking as unconstitutional Lanham Act Section 2(a)’s bar against the federal registration of disparaging matter, so it will decide the following issue, once and for all: “Whether the disparagement provision… Continue Reading

Timber! Will the Little Trees Car Freshener Configuration Trademark be Chopped Down?

Posted in Articles, Branding, Dilution, Fair Use, Famous Marks, First Amendment, Genericide, Infringement, Law Suits, Loss of Rights, Marketing, Non-Traditional Trademarks, Product Configurations, Trademark Bullying, Trademarks

We wrote about the above trademark warning ad a few years back, and the claimed trademark owner likely recognizing vulnerability as to validity: “The idea generally is, let’s show and create a record that we are educating the public about our trademark rights and hopefully deterring misuses that otherwise might find their way into the public… Continue Reading

Can Starbucks Tolerate Cannabis Parody?

Posted in Advertising, Articles, Branding, Dilution, Famous Marks, Fashion, FDA Approval, First Amendment, Food, Infringement, Law Suits, Marketing, Trademarks

A couple of weeks back, I captured this image from a t-shirt for sale in Starbucks’ backyard — at a shop in the Pike Place Market area of Seattle: One of the things it brought to mind for me is the dozen year long trademark dilution case that Starbucks lost, over and over, a few… Continue Reading

Zero Tolerance #USOC Trademark Overreach

Posted in Advertising, Articles, Branding, First Amendment, International, Law Suits, Marketing, Social Media, Social Networking, Technology, Trademark Bullying, Trademarks

By way of follow-up to Tim’s and David’s recent discussions about Rio2016 and related U.S. Olympic Committee trademark enforcement issues, it appears that a local Minnesota carpet cleaning business called Zerorez, is poised to press the issue of the USOC’s overreaching trademark policies by asking the federal district court in Minnesota to confirm it may… Continue Reading

Is the US Olympic Committee’s #TwitterBan Fair or Foul?

Posted in Fair Use, First Amendment, Trademark Bullying

The 2016 Summer Olympics will officially* begin in eight days. Yet the U.S. Olympic Committee’s (USOC) efforts to enforce the Olympic trademarks are truly an eternal battle. While the USOC has a reputation for aggressively enforcing its trademark rights, the USOC seems to have set a new personal record for aggressive tactics, attempting to enforce… Continue Reading

USPTO Keeps the Door Locked for Marijuana-related Services

Posted in Branding, First Amendment, Food, Trademarks

Medical marijuana is currently legal in 25 states, including four states that have also legalized recreational use (Alaska, Colorado, Oregon, and Washington). On Nov. 8, California voters will have a chance to make their state the next to legalize recreational use. As a dollar amount, Forbes estimated that Colorado’s marijuana industry was worth $1 billion…. Continue Reading

The Hashtag / Trademark Paradox: #Trending, but #Proprietary?

Posted in Advertising, Branding, Famous Marks, First Amendment, Infringement, Marketing, Social Media, Social Networking

As the hustle and bustle of the INTA 2016 Annual Meeting drew to a close yesterday, I reflected on the session “#HASHTAGS #EverythingYouNeedToKnow” from Tuesday. It seems trademark protection may not (yet) fit comfortably into the hashtag world. DuetsBlog previously provided a helpful tutorial on the nuts and bolts of hashtags and how they function, particularly on the sites Twitter and… Continue Reading

Madonna Not Scandalous for Wine Anymore

Posted in Articles, Branding, First Amendment, Marketing, Trademarks, TTAB, USPTO

The headline might be considered old news to some, but since intellectual property attorneys from around the world will be descending upon Minneapolis for the remainder of the week, and since I’ll be speaking tomorrow at the American Intellectual Property Law Association Spring Meeting at the Minneapolis Hilton, on the history and public policy behind… Continue Reading

Trademark Litigation Keeps Getting Cheaper (If You Win)

Posted in First Amendment, Law Suits, Trademark Bullying, Trademarks

Slowly but surely, the extension of the Supreme Court’s 2014 Octane Fitness v. LLC v. Icon Health and Fitness, Inc. decision to trademark claims is gaining traction among federal appellate courts. The Octane Fitness decision addressed the standard for determining whether a case is “exceptional” under the Patent Act and therefore eligible for an award… Continue Reading

Heading to Orlando Later This Month?

Posted in Articles, First Amendment, Mixed Bag of Nuts, Trademarks

After returning from a great set of collaborative meetings with other members of the Executive Leadership Board at the University of Iowa’s College of Pharmacy, let’s say, we’re now looking forward to AIPLA’s Spring Meeting, located in our own Minneapolis backyard and playground. My perspectives on the potential-U.S. Supreme Court-bound First Amendment challenges to Section… Continue Reading

The USPTO Says “Yes” But the TTB Says “No” To LSD

Posted in Almost Advice, Branding, First Amendment, Idea Protection, Marketing, Product Packaging, Trademarks, USPTO

Government approval of commercial speech has been a hot topic of discussion by trademark nerds here and elsewhere in light of recent decisions regarding the Redskins and The Slants marks.  As those decisions proceed up through the appeal channels to the Supreme Court, attention has been drawn to whether or not a trademark registration certificate… Continue Reading

LARPing with Patent Trolls

Posted in Counterfeits, Dilution, Fair Use, False Advertising, First Amendment, Mixed Bag of Nuts, Patents, Social Media, Social Networking, Technology, Trademark Bullying

Live Action Role Playing (LARP or LARPing) usually involves Renaissance Festival worthy costumes, foam medieval weapons, and an intense dedication to not breaking character.  I can’t say I’ve ever had the privilege of participating in a LARP event, but I also can’t say I’d turn down the opportunity. A different kind of battle—the intellectual property… Continue Reading

Solid Snake on Ice

Posted in Copyrights, Fair Use, First Amendment, SoapBox

Fans of the Metal Gear Solid franchise received disappointing news earlier this week when Project “Shadow Moses”–an ambitious fan reboot of the original game using Unreal Engine 4–was canceled.  A trailer showing the progress of the project prior to its termination is below: This would have represented a significant improvement from the 1998 original Metal Gear Solid. While… Continue Reading

An E-Bay User Copied and Sold Thousands of Designs for Profit, but is it Legal?

Posted in Copyrights, Fair Use, First Amendment, Idea Protection, Infringement, Loss of Rights

Three-dimensional printing technology continues to be a new frontier of creativity, advancement, and of course, legal issues. The laws surrounding 3D printing have always been a topic of concern, but the discussion took center stage over the last few weeks in an unprecedented way. If you’re new to the idea of 3D printing, here’s a… Continue Reading

Insert Coin

Posted in Copyrights, First Amendment, Patents, Trademarks

Those of you who occasionally read my posts may have noticed that video games are a hobby and interest of mine.  I have posted on issues involving video games several times. See Executing Noriega, Flash in the Panama, Calling All Gamers.  And as I look back on it now, it appears that I, for a… Continue Reading

Does Louis Vuitton’s Loss to a Parody Defense Justify an Award of Attorney Fees?

Posted in Dilution, Fair Use, Famous Marks, Fashion, First Amendment, Infringement, Law Suits, Trademark Bullying, Trademarks

Earlier this month the Southern District of New York granted the defendant’s Motion for Summary in Louis Vuitton Malletier, S.A. v. My Other Bag , Inc. The fashion giant had brought suit against a California company over its sales of a canvas tote bag that included an image that “evoked” Louis Vuitton’s classic handbag design…. Continue Reading

Louis Vuitton’s Other Lawsuit Was a Winner, but Loses to a Parody Defense – Again.

Posted in Dilution, Fair Use, Famous Marks, First Amendment, Infringement

Louis Vuitton is no stranger to trademark disputes. As a a manufacturer of handbags, wallets, and other luxury goods, the company has its hands full just addressing counterfeit products. However, like any other company, there is concern not just with “fakes,” but other products and services that may otherwise infringe or dilute Louis Vuitton’s trademark… Continue Reading