Intellectual Property Blog
Branding Considerations: Trademarks and the Spectrum of Distinctiveness
When choosing a brand name or slogan, an often-overlooked consideration is the strength of potential trademark protection. Whether a fresh-faced entrepreneur starting a new business or a seasoned marketing expert, anyone who creates a brand must contemplate the degree of protection afforded to that mark. To obtain protection under U.S. trademark laws, marks must be “distinctive” with respect to the goods or services for which they issue. Protectable and enforceable marks are either inherently distinctive or have acquired distinctiveness through secondary meaning. Below is the “spectrum of distinctiveness,” or levels of strength under U.S. trademark law, from strongest to weakest [...]
INTERNATIONAL TRADEMARK UPDATE: New Madrid Union Members
The U.S. is a party to a number of intellectual property (IP) treaties. These treaties help IP owners in the U.S. protect rights internationally, and help foreign IP owners to protect rights in the U.S. Madrid System One of these treaties is the Madrid System for the International Registration of Marks (Madrid System). The Madrid System facilitates international trademark protection in numerous countries by providing a system for a trademark owner to obtain an international registration that has effect in each of the designated Contracting Parties who are members of the Madrid Union. The Madrid System is governed by the [...]
COPYRIGHT LAW UPDATE: New CASE Act Bills Introduced in Congress To Create Copyright Small Claims Tribunal
On May 1, 2019, two U.S. copyright bills referred to as the “Copyright Alternative in Small-Claims Enforcement Act of 2019” or “CASE Act of 2019” were introduced in the U.S. House of Representatives (H.R. 2426) and the Senate (S. 1273). The CASE Act bills propose to create a voluntary small claims system to adjudicate copyright infringement claims, as an alternative to federal court litigation. The proposed CASE Act would create a new Copyright Claims Board (CCB) in the United States Copyright Office (USCO). The proposed CCB would involve a panel of three Copyright Claims Officers with the power to award [...]
BRANDING CONSIDERATIONS: The Importance of a Trademark Search
Imagine being ordered by a court to immediately stop using your name. How difficult would it be to: (1) choose a new name; (2) notify everyone of your new name without referencing your prior name; and (3) destroy all materials containing your prior name? Now imagine being ordered by a court to immediately stop using a trademark in which you have invested substantial time, money, and effort to build brand recognition and goodwill. How difficult and expensive would it be to: (1) start over with a new brand; (2) notify customers, vendors, licensees, franchisees, referral sources, and others of your [...]
U.S. Supreme Court: Copyright Owners Must Register Works Before Filing Copyright Infringement Lawsuits
The United States Supreme Court has ruled that copyright owners must register their works prior to filing suit against infringers. In Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, 586 U.S. ____ (2019), the Court held that registration is a statutory prerequisite to a copyright infringement lawsuit. Faced with a circuit split over whether filing a copyright application would suffice over full registration by the U.S. Copyright Office, the Court relied on the plain language of the Copyright Act to reach its decision. The Copyright Act states that “no civil action for infringement of the copyright in any United States [...]
Copyright Works Enter Public Domain For First Time In 20 Years
For the first time in 20 years, a massive volume of artwork, books, films, music, and other works of authorship that were first published in the United States in 1923 entered the public domain on January 1, 2019. A federal copyright law enacted in 1998 postponed the release into the public domain of works whose copyright term would have otherwise expired two decades ago. This is the largest entry of works into the public domain in the digital age, and will likely have a substantial impact on creativity and culture. Public Domain The term “public domain” generally refers to creative [...]