DuetsBlog Collaborations in Creativity & the Law

Kyle Kroll

View my professional biography For me, creativity has always been a way of standing out from the crowd, doing the unexpected, and adding passion to my work. My parents nurtured my creative side from an early age, gifting me Legos, subscribing me to Popular Science, and encouraging me to get involved in school activities with an artistic angle. I remember creating a hoverboard using a leaf blower in fifth grade, winning the science fair in sixth, and joining my small-town high school newspaper shortly thereafter. Soon, I began designing beautiful centerfolds, reporting on the latest tech topics, and writing poems and short stories. I also began to apply my creative skills to my schoolwork, adding unexpected pizzaz to my assignments. In college, I continued to develop my creative skills. I taught myself how to code websites, crafted logos for non-profits, tried my hand at techie DIY projects (parabolic wi-fi dish, anyone?), and began painting abstract art. I also continued to apply my creative design and writing skills to the classroom and leadership positions in student government. Creativity helped me stand out in these venues and present my ideas in compelling ways. Furthermore, infusing imagination into everything I did made tasks fun and fulfilling. This strategy also worked well for me in law school, where I developed my love for all things intellectual property: patents, copyrights, trademarks, trade secrets, right to publicity, you name it. That passion continued to develop after law school as a clerk to a federal judge in the District of Minnesota. Join me on this blog as I return to my journalist roots, discuss contemporary topics in intellectual property, and add creative commentary to the marketplace of ideas.

Posts by Kyle Kroll

Just Which “Wayne” Are We Talking About?

Posted in Articles, Copyrights, Dilution, False Advertising, Famous Marks, Idea Protection, Infringement, Law Suits, Sight, Social Media, Squirrelly Thoughts, Trademarks

Who comes to mind when I list the following character traits: lives in a dystopian metropolis, has a deceased parent, fights criminals, rides a motorcycle, has seemingly-superhero strength, is fearless, has dark hair, and–oh, by the way–his name is “Wayne.” More than that, you learn all these facts about Wayne by watching a trailer for… Continue Reading

Will “Return Mail” Create an Escape from the Supreme Court’s Holding in “SAS”?

Posted in Articles, Infringement, Law Suits, Patents, Squirrelly Thoughts, USPTO

Readers of this blog may recall that in the past year, I wrote extensively about the U.S. Supreme Court case of Oil States v. Greene’s Energy. But I paid little attention to another important case decided around the same time: SAS Institute v. Iancu. Oil States centered on whether the USPTO’s inter partes review (“IPR”) process (challenging a patent at the USPTO,… Continue Reading

The Horror! Government Argues No Claim of Infringement for Unregistered Copyrights

Posted in Articles, Copyrights, Infringement, Law Suits, Loss of Rights

Happy Halloween from DuetsBlog! I write today regarding a scary subject: unregistered intellectual property. The horror! Ask any IP professional about registration, and you’re likely to hear that registration is one of the most important steps in protecting IP. Whether it is a patent, trademark, or copyright, registering IP often provides the IP owner greater… Continue Reading

What Is in a Name? That Which We Call Heisman; by Any Other Name Would Be Ambiguous

Posted in Articles, Domain Names, Fair Use, Famous Marks, First Amendment, Infringement, Law Suits, Marketing, Sight, Squirrelly Thoughts, Trademark Bullying, Trademarks

It’s fall, and you know what that means: football season! For many, this means a return to the couch each weekend to spectate America’s most-watched sport. But the popularity of doing so appears to be in decline. This shift isn’t only affecting the NFL, but also college football as well, as ticket sales continue to plummet…. Continue Reading

The Potential Folly of Pursuing Only a Hashtag Mark

Posted in Articles, Branding, Fair Use, Infringement, Mixed Bag of Nuts, Squirrelly Thoughts, Trademarks, TTAB, USPTO

Credit: Local Solutions I write today regarding a squirrelly thought: are the benefits of registering a hashtag trademark almost always outweighed by the consequences? In light of a recent Trademark Trial and Appeal Board (“TTAB”) ruling and the Trademark Manual of Examining Procedure’s (“TMEP”) provisions, hashtag marks offer much less protection than traditional character-based marks,… Continue Reading

‘O’ Stands for Oklahoma, Ohio, Oprah…

Posted in Articles, Branding, Fair Use, Famous Marks, Law Suits, Marketing, Mixed Bag of Nuts, Sight, Squirrelly Thoughts, Trademarks, USPTO

As Steve blogged earlier this week, we’ve had a lot of “zero” on the mind lately—marks related to the word and numeral. It got me thinking about the letter ‘O,’ especially since it has been in recent trademark news. If you missed it, The Ohio State University and Oklahoma State University are now dueling it… Continue Reading

After Battles for Fees, Victory for Comic Con and (partially) Grumpy Cat

Posted in Agreements, Articles, Civil Procedure, Famous Marks, Infringement, Law Suits, Product Packaging, Sight, Trademarks

The battle for attorneys’ fees after an intense trademark dispute often leaves many prevailing parties empty handed. This is because the Lanham Act only provides for attorneys’ fees in “exceptional cases.” Congress’s (and courts’) reluctance to award attorneys’ fees stems from the “American Rule,” which provides that each party to a lawsuit is responsible for paying… Continue Reading

Billy Goats, Trademark Twins, and the Descriptive Limits of Language

Posted in Advertising, Articles, Branding, Food, Infringement, Law Suits, Mixed Bag of Nuts, Squirrelly Thoughts, Trademarks

I’ve been thinking about the nature of language lately, ever since I listened to a podcast about various philosophers who devoted their study to language. For example, Ludwig Wittgenstein, one of the most influential philosophers of the twentieth century, is famous for his work on the logic of language. A fundamental premise to his philosophy is that… Continue Reading

Mohawk Tribe v. Mylan Highlights USPTO Constraints

Posted in Articles, Infringement, Patents, USPTO

Credit: Federal Circuit (what it looks like to argue there) One week ago, the Federal Circuit Court of Appeals issued its decision in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals, Inc., 18-1638 (Fed. Cir. July 20, 2018)–by all accounts, one of this decade’s most important decisions concerning the America Invents Act and the patent system. The… Continue Reading

Can a Word Which Means a Lot (Aloha) Mean Almost Nothing in Trademark?

Posted in Articles, Branding, Fair Use, Genericide, Marketing, Mixed Bag of Nuts, Sight, Sound, Squirrelly Thoughts, Trademarks, USPTO

Hawaii seems to be on the mind here at DuetsBlog lately. Last week, I had the pleasure of visiting three Hawaiian islands for the first time. While there, I quickly became acquainted with Hawaiian life and language. It’s a beautiful place; I recommend everyone visit. When I first landed on Kauai, the “garden island,” I… Continue Reading

Buc-ee’s Fights ‘Tooth and Nail’ For Total Texas Takedown

Posted in Advertising, Articles, Branding, Dilution, Famous Marks, Infringement, Law Suits, Sight, Trademarks

Recently, we have been covering updates from a trademark infringement, dilution, and unfair competition action between Buc-ee’s and Choke Canyon, two rival Texas convenience stores with endless rows of gas pumps and checkout lanes (everything’s bigger in Texas, you know; even gas stations). About a month ago, a Texas jury found that the Choke Canyon… Continue Reading

Can a YouTube Video Invalidate a Patent? It’s Certainly Possible

Posted in Articles, Audio, Infringement, Law Suits, Patents, Search Engines, Squirrelly Thoughts, Technology, Television, USPTO

One of the most common defenses to patent infringement is that the asserted patent is invalid. The reasons for invalidity regularly range from lack of utility, to incorrect inventorship, and even to fraud (as I’ve recently written about). Often, the defendant asserts that the patent is invalid for lack of novelty or non-obviousness–pointing to some… Continue Reading

Buc-ee’s Beaver Chomps Reptilian Competitor

Posted in Articles, Branding, Dilution, Fair Use, Famous Marks, Infringement, Law Suits, Mixed Bag of Nuts, Sight, Trademarks

About a week ago, we reported on an interesting case out of the Southern District of Texas involving two competing convenience stores with cartoon animal mascots: Buc-ee’s (a beaver) and Choke Canyon (an alligator). As someone who has personally visited Buc-ee’s stores, I can tell you that they are quite the destination. Buc-ee’s tend to… Continue Reading

Trader Joe’s Takes on Trademark “Schmo”

Posted in Articles, Branding, Dilution, Fair Use, Famous Marks, First Amendment, Food, Infringement, Law Suits, Mixed Bag of Nuts, Sound, Squirrelly Thoughts, Trademarks, TTAB, USPTO

In recent USPTO news, Trader Joe’s, the supermarket chain known for its eclectic and unique foodstuffs, recently filed an opposition to registration of the mark “Trader Schmo,” which is described as designating a wide variety of Kosher foods. Understandably, Trader Joe’s took issue with the mark, and particularly its use in the food category. The… Continue Reading

PTAB-Lovers Rejoice; IPR Lives!

Posted in Articles, Infringement, Law Suits, Patents, USPTO

Five months ago to the day, I predicted that the U.S. Supreme Court would uphold inter partes review (“IPR”) proceedings at the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (“PTAB”) as constitutional in Oil States v. Greene Energy. On April 24, 2018, the Court so-held. Back in November, the questions at oral argument in Oil States raised… Continue Reading

Patent Appeals to the District Court: Win or Lose, You Pay Attorneys’ Fees?

Posted in Articles, Law Suits, Mixed Bag of Nuts, Patents, Squirrelly Thoughts, Trademarks, USPTO

Recently, the Federal Circuit Court of Appeals (the federal appellate court that primarily hears appeals in patents cases) heard arguments in NantKwest Inc. v. Matal, No. 16-1794 on the issue of attorneys’ fees (a timely topic) in certain patent cases. Credit: PatentlyO Attorneys’ fees are a necessary and inescapable cost of enforcing one’s rights and, as… Continue Reading

Glade No. 1, 2, 3, 4, and… Chanel No. 5?

Posted in Advertising, Articles, Branding, Famous Marks, Fashion, Infringement, Look-For Ads, Marketing, Non-Traditional Trademarks, Product Configurations, Sight, Smell, Squirrelly Thoughts, Trademarks

Recently, a friend and I were watching The Bachelor—I know, I should be ashamed. During one of the commercial breaks, a spot appeared on-screen showing a woman wearing an elegant dress walking through a hallway. She turns into a doorway, and blue, shimmering light projects onto her face, as if she was underwater. A speaker… Continue Reading

“Brother Thelonious” Monk’s Likeness Protectable Decades After Death

Posted in Advertising, Articles, Branding, Contracts, Food, Infringement, Law Suits, Loss of Rights, Marketing, Non-Traditional Trademarks, Product Packaging, Sight, Trademarks

Earlier this month, a California federal judge kept alive a suit brought by the estate of famous jazz musician Thelonious Monk against North Coast Brewing Co. for trademark infringement and infringement of the right of publicity. The dispute centers around North Coast’s popular “Brother Thelonious” Beligan-style abbey ale (beer seems to be on the mind here… Continue Reading

Who Owns the Trademark Rights to Tesla/SpaceX’s Roadster?

Posted in Branding, Infringement, Marketing, Mixed Bag of Nuts, Non-Traditional Trademarks, Sight, Squirrelly Thoughts, Trademarks

Today I write with a thought-provoking question: Just who owns the trademark rights to Telsa/SpaceX’s Spaceman Roadster? Tesla? SpaceX? Perhaps even humanity? If you didn’t catch it, SpaceX recently launched its first Falcon Heavy three-booster rocket designed to carry large payloads into space. In a stunning feat of engineering and genius marketing, the rocket sent… Continue Reading

Green Bay Packers Enforce “Titletown” Mark Against High School Football News Series

Posted in Articles, Branding, Dilution, Fair Use, Famous Marks, Infringement, Mixed Bag of Nuts, Sight, Trademarks, TTAB, USPTO

Tis’ the season for football, not just on the gridiron, but also at the U.S. Patent and Trademark Office. Shortly after the “Minneapolis Miracle,” as we reported this week, the Minnesota Vikings applied for registered marks on the phrase. And with the “big game” approaching, teams have titles on the mind–even those that aren’t in… Continue Reading

Court Protects Louis Vuitton from Inability to Understand Obvious Joke

Posted in Dilution, Fair Use, Famous Marks, Fashion, Infringement, Law Suits, Loss of Rights, Mixed Bag of Nuts, Sight, Trademarks

For the past several years, DuetsBlog has covered fashion house Louis Vuitton’s outlandish trademark “bullying” against law schools, dog toys, photographers, and movie studios. Most recently, we discussed the brand’s latest high-profile lawsuit against rival luxury canvas tote maker (sarcasm), My Other Bag, for trademark infringement and dilution. To the casual observer, one might not… Continue Reading

Happy (Registered Trademark) Holidays!

Posted in Branding, Mixed Bag of Nuts, Non-Traditional Trademarks, Sight, Trademarks, USPTO

December is one of the largest shopping months of the year, due mostly to the overlap of multiple major holidays, such as Hanukkah and Christmas, and the coming new year. It is perhaps unsurprising, then, that several companies and creatives invoke the spirit of the holidays through festive marks–to great financial gain. But you might… Continue Reading

Supreme Court Justices’ Questions in Oil States Suggest Inter Partes Review Will Be Upheld as Constitutional

Posted in Articles, Civil Procedure, Infringement, Law Suits, Patents, USPTO

On Monday, November 27, 2017, the U.S. Supreme Court heard argument in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, No. 16-712. The case presents a direct challenge to the U.S. Patent and Trademark Office’s (“USPTO’s”) “inter partes review” (“IPR”) process, under which third parties can petition the USPTO’s Patent Trial and Appeal… Continue Reading

University of North Dakota Abandons Sioux Mascot, but not Sioux Mark

Posted in Famous Marks, First Amendment, Loss of Rights, Mixed Bag of Nuts, Trademarks

The weekend of October 20-21, 2017, the Minnesota Golden Gophers and North Dakota Fighting Hawks traded wins in one of college hockey’s most competitive series. While watching the NCHC broadcast, an ad for the “Sioux Shop” appeared on screen. The ad explained that the Sioux Shop sells North Dakota fan gear at Ralph Englestad Arena… Continue Reading