Articles Posted in Trademark

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On November 1, 2023, the U.S. Supreme Court engaged in a thought-provoking deliberation concerning the intersection of the First Amendment to the U.S. Constitution and U.S. trademark law, Vidal v. Elster, Supr. Ct. Case No. 22-704. The case considers whether the refusal of the U.S. Patent and Trademark Office (USPTO) to register the phrase TRUMP TOO SMALL as a trademark violates the free speech right under the First Amendment. The case highlights the ongoing debate surrounding political expression and government regulation.

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On October 18, 2023, the U.S. Court of Appeals for the Federal Circuit reversed and remanded a U.S. Trademark Trial and Appeal Board (TTAB) decision in Great Concepts, LLC v. Chutter, Inc., in which the Board canceled Great Concepts’ trademark registration based on a fraudulent Section 15 declaration of incontestability. In doing so, the Federal Circuit held that the TTAB lacks authority to cancel a registration based on a fraudulent incontestability declaration, closing the door to cancellation claims premised on fraudulent statements on which the USPTO did not rely either to issue or maintain a registration.

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On June 29, 2023, in Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. ___ (2023), the U.S. Supreme Court held that the Lanham Act could not extend to trademark infringement that occurred almost entirely outside the United States. While it is not surprising that the Court adhered to the longstanding presumption against extraterritorial application of U.S. law, the rationale underlying its decision may complicate future U.S. trademark actions to stop foreign-sourced counterfeits.

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On June 8, 2023, a unanimous U.S. Supreme Court resolved the petition in Jack Daniel’s Properties, Inc. v. VIP Products LLC with two narrow holdings: (1) the threshold trademark infringement test espoused by the Second Circuit in Rogers v. Grimaldi for “expressive” works does not apply to allegedly infringing trademark use; and (2) humor and parody does not constitute “non-commercial use” within the meaning of the Lanham Act’s exclusion from liability for trademark dilution. In so doing, the Supreme Court reversed the Ninth Circuit’s ruling and remanded to the District Court, leaving questions about the continued viability of the Rogers test, as well as the bounds of the Lanham Act’s “non-commercial use” exclusion from dilution liability.

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Hermès is a luxury fashion brand famously known for its iconic Birkin handbag. Since 1986, Hermès has sold over $1 billion worth of these handbags in the United States, including over $100 million worth in the past 10 years. Even the entry-level Birkin bags sell for tens of thousands of dollars. Exotic Birkins such as the Himalaya Birkin and the special edition Faubourg Birkins fetch well over a $100,000, and as such, Birkin bags have been considered the epitome of luxury handbags. Currently, the most popular size of the Hermès Birkin is its smallest—a 25 cm Birkin lovingly nicknamed “the baby Birkin.”

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copyright-metaverse-1161454459-300x277We’ve written extensively on the still somewhat recent arrival of non-fungible tokens (NFTs) as both a potential revenue stream, caveat-filled investment destination and pop culture marker of the moment. Back in 2018, we wrote about the Los Angeles Dodgers giving away digital bobbleheads to fans, who could redeem a private hidden key to send the bobblehead to a personal cryptocurrency wallet or sell the unique serialized bobblehead to another fan. Later, we wrote about NFTs in the art world, from a burned Banksy to the record-setting sale of Beeple’s Everydays – The First 5000 Days, which sold for $69.3 million (including fees). Increasingly, the practical uses of NFTs are being examined in places beyond entertainment and IP portfolios, including the real estate market. Recently, Spanish airline Air Europa even sold the first NFT plane ticket, called a “NFTicket,” for just over $1 million.

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hashtag-1224329586-300x203When the first social media hashtag was used in 2007, users had no idea how ubiquitous hashtags would become. Today, hashtags are an essential part of our lives (and a subject we’ve been writing about for years). From marketing a business to garnering support for a cause, hashtags have become an essential part of our society. This may even be an understatement. For instance, from May 26, 2020, until June 7, 2020, alone, the #BlackLivesMatter hashtag was used over 47 million times on Twitter. 47 million. Talk about impact.

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Friends drinking rooftop partyYour company wants to use a picture taken outside of your office at an event you are hosting or sponsoring. Perhaps the image shows someone wearing your clothing or other product or using something showing your brand. Possibly you participated in a parade and want some images showing your company’s float or views from the float along the parade route. Maybe the image shows the outside of your building or the immediately surrounding area. You may have hired a photographer to take the pictures, they may have been taken by an employee, or someone may have found them on a third-party website or social media posts. The pictures may depict people who were on the street or present at the event, and they may include images of one or more buildings or local landmarks.

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USPTO-seal-300x300Though the USPTO typically examines trademark applications in the order received, special circumstances can from time to time justify examination out of order. The USPTO has determined that the COVID-19 pandemic is such a special circumstance, recognizing the need to bring COVID-19-related medical products and services to market as quickly as possible.

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iStock-949494094-hashtag-trademark-300x188In today’s world, most businesses use hashtags to boost their brand awareness and promote their products and services on social media platforms such as Twitter, Facebook, Instagram and LinkedIn. As the saying goes, “a picture is worth a thousand words”—posting a great photo of a product with the right #hashtag, and the attention received can go from “scant” to “deluged” in moments. Such posts can promote higher customer engagement, attract more likes and new followers, and in short provide fantastic and efficient publicity for businesses.

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