Products involving CBD and hemp seeds have been flooding the US market and businesses are seeking to protect their brands in connection with products in this emerging market, given the legalisation of various forms of marijuana in individual states. Where federal or state registration is not legally obtainable with regard to various goods or services, users may be able to obtain common law rights to cannabis-related trademarks if they are in use.
The Supreme Court recently ruled by a seven-to-two majority that determinations by the Patent Trial and Appeal Board of whether to apply the time bar of 35 US Code 315(b) to inter partes review proceedings are not appealable. In so doing, the Supreme Court effectively abrogated the Federal Circuit's en banc decision that such determinations are appealable.
Congress is taking action after recognising the growing problem of counterfeit and unregulated products being sold through online marketplaces and the associated safety concerns. This article provides a high-level overview of the proliferation of counterfeits on online marketplaces and summarises three pending bipartisan bills and their stated goals.
A recent Supreme Court decision may seem like it boiled down to an esoteric argument over the correct interpretation of a series of cases decided in the 19th century – and it did – but the ramifications of the decision will be felt in 2020 and beyond. The court, by a slim five-to-four majority, held that the annotations in Georgia's official code are not copyrightable.
In April 2020 the Supreme Court ruled that a plaintiff in a Lanham Act trademark infringement case may recover a defendant's profits without having to prove that the defendant acted wilfully. This precedential decision makes it easier for plaintiffs to obtain monetary recovery for trademark violations and false advertising under the Lanham Act.
Previously, in order for a brand owner to protect colour as a feature of its product packaging, it had to show that the colour scheme had acquired distinctiveness through extensive use in the marketplace. However, the Court of Appeals for the Federal Circuit recently ruled otherwise, creating new possibilities for brand owners to protect the overall look and feel of their packaging and strengthen their IP toolkit.
In response to the COVID-19 pandemic, the United States Patent and Trademark Office recently announced an accelerated examination procedure for certain trademark and service mark applications covering qualifying COVID-19 medical products and services. This expedited process will benefit those that wish to protect their marks for products developed to fight the pandemic.
Fortnite: Battle Royale's high level of success and popularity has inevitably also made the game an inviting target for litigation. In the past 18 months, several cases have been brought against Epic Games regarding some of the game's most popular emotes, particularly with regard to copyright infringement and right of publicity claims. These cases provide insight for gamers and game developers into potential claims that they may face and how to appropriately clear rights and avoid claims.
The Supreme Court recently affirmed the Court of Appeals for the Fourth Circuit's ruling in the closely watched Booking.com case, holding that the hotel reservation site's BOOKING.COM name was not generic and could therefore obtain federal trademark registration. This ruling makes registration possible for parties in any industry to register similar names as trademarks.
The Counterfeit Goods Seizure Act of 2019, which a bipartisan group of senators introduced at the end of 2019, is a significant legislative effort to tackle the problem of imported counterfeit goods. The act would add design patents to US Customs and Border Protection's current IP rights enforcement mechanism for trademarks and copyrights.
The US Copyright Office recently issued the long-awaited and first comprehensive government study on the 20-year-old Section 512 of the Copyright Act. The 250-page study contains an incredibly thorough and well-done analysis of the current law in this area, the learned challenges of this provision and the viewpoints of various stakeholders with regard to some of the challenges that exist with Section 512. This article aims to provide a brief overview of the study's key findings.
The US Court of Appeals for the Federal Circuit recently adopted several amendments to its rules of practice, which govern procedural aspects of appeals from district court patent cases and appeals from Patent Trial and Appeal Board proceedings. These amendments apply to all appeals filed or pending on or after 1 July 2020, to the extent practicable, unless otherwise ordered.
With the rise of social distancing and stay-at-home orders, the demand for online content has increased exponentially. Given this new reality, online content creators must take steps to ensure that their online creations do not land them in legal hot water. This article's examples and best practices illustrate and address the challenges associated with using music in online content.
The Trademark Trial and Appeal Board recently affirmed a United States Patent and Trademark Office (USPTO) decision denying the application of a mark for hemp oil extracts sold as an integral component of dietary and nutritional supplements. In its decision, the USPTO had reasoned that the applicant's goods, which contained cannabidiol, were illegal under federal law – specifically, the Food, Drug and Cosmetics Act and the Controlled Substances Act.
Absent a few limited exceptions, the use of someone else's music without their permission is an infringement on their copyright. This article sets out some fundamentals to assist in determining the type of licence that an average company would need and some potential alternatives. The bottom line when planning and budgeting for music in a project is to get the proper rights and permissions in place before pressing 'play'.
A bipartisan group of representatives in the US House of Representatives recently introduced the Stopping Harmful Offers on Platforms by Screening Against Fakes in E-Commerce Act to help stem the growing concern over counterfeit products being offered for sale on online third-party marketplace e-commerce platforms. Although e-commerce is a relatively new retail platform, it has been capturing larger percentages of sales in the US retail industry.
The US Patent and Trademark Office (USPTO) has enacted a series of rule changes that will have a significant impact on trademark filers. The widest-scale change is the requirement for electronic filing of all submissions to the USPTO. However, additional application and specimen requirements are likely to have a greater effect on applicants, as compared with prior practice.
The Supreme Court has unanimously ruled that the US Patent and Trademark Office cannot shift the fees of its attorneys and paralegals to litigants in district court proceedings brought under Title 35, Section 145 of the US Code. Justice Sotomayor explained that, under the centuries-old presumption commonly known as the 'American rule', each litigant pays its own attorneys' fees "win or lose, unless a statute or contract provides otherwise".
Thus far, biosimilar uptake has been low in the United States, with market shares for most biosimilars under 10%. Given the cost-saving potential, trying to increase biosimilar uptake has been high on Congress's agenda and there are many bills pending before it dealing with issues from a variety of angles. But will they actually help to bring biosimilars to market more quickly?
Thus far, 2019 has been an eventful year for US patent law. Over the past seven months, the Supreme Court and the Court of Appeals for the Federal Circuit (the US appellate court tasked with reviewing all district court patent decisions) have issued several significant rulings that may affect the rights of patent owners. This article reviews the most important of these rulings, including decisions on the application of the on-sale bar and state sovereign immunity.