March 2018

Marc P. Misthal

Clients facing problems with online counterfeiting often ask us what they can do to stop the sale of the low-cost counterfeits. One thing we frequently recommend is that trademark or copyright rights, as appropriate, be recorded with U.S. Customs and Border Protection (“CBP”). Once rights are recorded with CBP, they will monitor shipments entering the country and seize counterfeit goods. 

March 2018

Barry R. Lewin

We have reported on developments regarding Alice v. CLS Bank and later cases in the past as these cases can be used toward business method patent applications. As background, in Alice, the Supreme Court held that mere abstract ideas, mathematical algorithms, natural phenomena, and mental processes are not eligible for patent protection without “significantly more” or, as has been interpreted, something truly inventive.

February 2018

Mitchell S. Feller

This Article Was Originally Published on IPWatchdog on February 1, 2018.

While it might seem like an obscure topic, the issue of sovereign immunity comes up with some regularity in intellectual property disputes. When it applies, its effect may be substantial. Sovereign Immunity is the legal principle where a sovereign entity is immune from being sued for various actions unless it has waived immunity by an express statement or action.

February 2018

Donna L. Mirman

Arguably the best actress of her generation, Meryl Streep has appeared in over 50 movies and shows over the past 45 years. Perhaps best known for her versatility and accent adaptation, Streep has for the first time at age 68 filed an application on January 22, 2018 to register her professional name, MERYL STREEP, with the U.S.

February 2018

Jeffrey M. Kaden

For any business, small or large, be it a start-up or one that is established, it is important to make sure that you are not infringing on the patent rights of another when launching a new product. While there may be some cost that is incurred in conducting appropriate due diligence, doing so is still much less expensive than defending a patent infringement lawsuit.

January 2018

Barry R. Lewin

In patent applications, it is critically important to use well-defined terminology. Patent applications are comprised of words and pictures which both describe the invention and state the proposed scope of protection. Both the words and the pictures should be crystal clear, but at times, some selected words might have multiple meanings or be nuanced.

January 2018

Diana Muller

A recent front page article in a prestigious newspaper commenting on the sale of the Weinstein Company at a low price was quite revealing of the problems that major figures in the entertainment world could face as a result of their despicable actions. In the case of the Weinstein Company, the allegations against Harvey Weinstein for sexual assault and harassment have resulted in a serious economic loss for his company’s shareholders.

December 2017

Jonathan M. Purow

Upcoming Legalization of Recreational Marijuana in New Jersey

On November 7, Democrat Phil Murphy overwhelmingly won the race to be the next governor of New Jersey. During his campaign and after his election, Murphy has made it clear that the legalization of recreational marijuana is a priority of his administration. Murphy is pushing for legalization for a number of reasons, foremost among them that he is relying upon the new industry to generate $300 million in income for the government, and to decrease incarceration rates for minor marijuana offenses, which overwhelmingly impact minorities.

November 2017

Jeffrey M. Kaden

The Unites States Supreme Court is getting more and more involved in patent related matters. In this year’s decision of TC Heartland LLC v. Kraft Foods Group Brand LLC, No. 16-341, May 22, 2017 (U.S.) , the Supreme Court significantly restricted where a patent owner can file a patent infringement action.

November 2017

Diana Muller

We live in a world dictated by pressure and anxiety. Relaxation, fitness and comfort have become the norm for consumers to deal with stress and improve their health.

Companies in apparel, fitness and wellness are competing to deliver the best products and services, whether it be a new sequence of yoga poses and breathing exercises, fitness wearable technologies, athletic apparel, or essential oils used during a massage or a Reiki session to enable consumers to perform better and live a better life.

October 2017

Barry R. Lewin

Originally appeared in The Connector in September 2017

In part because renewable energy is a growing industry, it is ripe for inventiveness and patentability. New inventions seem to spawn daily in areas such as solar, wind, geothermal, bio-energy, and energy storage. Over each of the last 5 years, over 3500 United States patents have been granted relative to renewable energy.

September 2017

David D. Rodrigues

One of the fundamental aspects of the Internet today is the ability to share information with others quickly and easily. Today there are hundreds of applications and websites dedicated to the ability of sharing information, but even in the Internet’s infancy, websites and web pages always had the ability to provide a hyperlink to another website.

September 2017

Jonathan M. Purow

Artificial intelligence has begun to change the world, and we are only touching the tip of the iceberg in terms of its potential applications. Increasingly, AI programs are being used to generate creative works. Google’s Deep Dream Generator takes photos submitted by a user and creates a new image combining elements of both images.

August 2017

David D. Rodrigues

When considering intellectual property protection in foreign countries, U.S. registrants tend to choose a variety of countries that immediately come to mind, such as Canada, Mexico, the EU, and China. However, other countries which may be subject to global conflict, terrorism, or political instability are either forgotten or avoided due to complexity in obtaining intellectual property therein, either due to political and economic restrictions, despite possibly conducting business or selling their products in those jurisdictions.

July 2017

Barry R. Lewin

We have written in the past about the importance of a robust and comprehensive written description. That importance became evident in Rivera v. ITC and Solofill, a recent Federal Circuit case regarding a granted patent for a coffee brewing device. While this situation was directed to coffee brewing, it is an important example that is applicable to patents in all sorts of different technologies, because the issue is with the specification, not the technology.

July 2017

Marc P. Misthal

I was watching my son’s little league game when a client sat down next to me in the bleachers to ask about that most resilient of intellectual property canards: the “Ten Percent Rule.”

“If I am inspired by a work,” my client asked, “how much does the inspiring work have to be changed to avoid a claim of copying?

July 2017

Barry R. Lewin

The Connector, July 2017

If you are a member of the fashion industry, protecting your intellectual property can be the difference between success and failure. It is vitally important to understand the different types of available intellectual property protection and what each can effectively protect.

Trademarks can take many forms but are indicators to consumers that a certain product originates from a specific source.

June 2017

Barry R. Lewin

It is established law that ordinarily a patent holder’s patent rights to a product end, or exhaust, upon sale of the patented product to another party. For example, if a patent holder holds a patent for a jewelry item, once the patent holder sells the product to a consumer, that consumer is free to re-sell the same jewelry item without any infringement by the consumer or the new purchaser.

June 2017

Mitchell S. Feller

Originally published in Law360.

The computer game industry is a significant and growing market. The 2016 global market exceeded $100 billion and projections show this amount growing significantly in the future.[1] Game companies in this market come in all sizes, from enormous multinational companies to small indie startups with only a few, or even one, employee.

April 2017

Mitchell S. Feller

Recent Court Rumblings about a Narrow Scope of IPR Estoppel

This article was originally published in IPWatchdog blog.

An Inter Partes Review (IPR) is an important tool for companies that face frequent patent infringement challenges. An IPR is essentially a mini-litigation focusing solely on patent validity conducted before a panel of administrative patent judges sitting on the Patent Trial and Appeal Board (PTAB).

April 2017

“Technology,” as the old saw goes, “moves faster than the law.” To but it briefly, when the universe of what is possible expands daily, the gatekeepers of what is permissible—derived from intricate legislation and the accretion of factually analogous case law—simply can’t keep pace.

No aspect of legal development is more excruciatingly slow by comparison to the hurtling pace of technological innovation than with regard to copyright.

April 2017

Mitchell S. Feller

There are many reasons why it is important for companies to get opinions from counsel addressing patents of particular concern to the companies’ products. Some reasons include helping identify design changes to avoid potential infringement issues, to provide comfort to investors that competitor patents do not raise material risks, and even as a prerequisite to obtaining patent infringement insurance.

March 2017

Barry R. Lewin

As more patents are challenged in view of Alice v. CLS Bank, which was directed to the patentability of algorithm-based inventions (among others), the courts provide additional clarity as to what is and is not patent eligible subject matter with respect to software-based and algorithm-based inventions.

In Trading Technologies v.

March 2017

Jonathan M. Purow

GR&R client “Third Generation Enterprises (“3rd Gen”)” is a family-owned business that bought the longstanding specialty soda brands TOP POP and CITY CLUB in 2009. A couple years after buying the brands, 3rd Gen’s trademark registration for CITY CLUB lapsed due to an oversight. In 2012, Hurricane Sandy flooded 3rd Gen’s warehouse, and inflicted great harm to the company by destroying virtually all inventory.

March 2017

Mitchell S. Feller

On May 22, 2017, the U.S. Supreme court issued an anxiously awaited decision addressing where patent patents lawsuits can be filed. The unanimous decision, TC Heartland LLC v. Kraft Foods Group Brands LLC, significantly narrows the options available for selecting where to sue. Since 1990, companies that offered their products to customers across the country could be sued anywhere in U.S.

March 2017

Marc P. Misthal

When I tell people that I represent clients in the restaurant industry, they often give me puzzled looks and ask me why restaurants would need any kind of intellectual property protection. The truth is that restaurants face the same kinds of issues as any other business, and generally need the same types of protection.

March 2017

Barry R. Lewin

This article was originally published in The Connector magazine.

With the proliferation of the internet and more media outlets, the opportunity for scams and misinformation grows. Certainly, as scams and misinformation proliferate, entrepreneurs are finding more and more ways to combat these issues in automated ways.

For example, advertising proliferates the internet and, at least at times, advertising appears to a user as clickable. 

March 2017

Mitchell S. Feller

Over the past several years, the U.S. Supreme court has been particularly active in addressing issues related to patent law. This year will be no different. Following on the heels of its Samsung v. Apple decision in late 2016 changing and complicating the standard for design patent infringement damages (see our prior article here), the Supreme Court has recently handed down two more patent related decisions–one that eliminates a defense to patent infringement and one that provides some clarity on exporting part of a patented invention.

February 2017

Jeffrey M. Kaden

A design patent protects the ornamental presentation of an article or product. This can include the product’s configuration, shape, and/or surface ornamentation. Design patents are limited to the appearance of the product and do not cover structural or functional features or innovations. A design patent in the United States has a term of 15 years from Patent Office issuance.

February 2017

Donna L. Mirman

To register a trademark with the U.S. Patent and Trademark Office (“USPTO”), a trademark owner must use the mark in “interstate commerce.” As evidence that the mark is in use, the applicant must submit a sample of the mark–called a “specimen of use”–showing the mark as it is actually used in commerce in connection with at least one item in each class of goods or services.

January 2017

Barry R. Lewin

The claims of a patent define the scope of protection. But one issue that can be bothersome is how definite the claim language has to be.

First, the statutory language requires definiteness in claims. “The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.” 35 U.S.C.

January 2017

Diana Muller

Since the American Tobacco Company put baseball players on promotional cards in 1920, third parties have been appropriating the names and likenesses of professional athletes for profit. Fortunately for these professional athletes, there are several avenues in the United States by which they can control the use of their names and likenesses, including through the federal Lanham Act and individual state right-of-publicity statutes.

January 2017

Barry R. Lewin

When an Examiner examines a patent application, the Examiner is supposed to apply a “broadest reasonable interpretation” standard. In D’agostino v. Mastercard Int’l Inc. (Fed Cir., December 22, 2016), the Federal Circuit placed limits on how broadly an Examiner may interpret a claim under the standard.

In the case, the claims were directed to improve security in a transaction (such as a credit card transaction) by authorizing the transaction by way of generating a limited use transaction code to be given by a customer to a merchant and concurrently withholding the credit card number from the merchant.

December 2016

Jonathan M. Purow

Originally published on SmallBizClub

If you are a member of the fashion industry, it is vitally important to understand the different types of intellectual property protection and what each can effectively protect.

Trademarks are anything that can indicate to consumers that a certain product originates from a specific source. Brand names and slogans are typical trademarks, but even a red sole on a shoe (a la Louboutin) can function as a trademark.

December 2016

Donna L. Mirman

The Kardashian name is one of the most recognized household names. Fueled by the brand savvy iconic sisters Kim, Khloe and Kourtney, the Kardashian name has become a mega brand for marketing everything from reality television shows, advertising services to virtually every fashion related product. KARDASHIAN BEAUTY, KARDASHIAN KOLLECTION, KARDASHIAN KHAOS to name just a few, are some of the many trademarks used to market the Kardashian sisters’ goods and services.

December 2016

Donna L. Mirman

The Kardashian name is one of the most recognized household names. Fueled by the brand savvy iconic sisters Kim, Khloe and Kourtney, the Kardashian name has become a mega brand for marketing everything from reality television shows, advertising services to virtually every fashion related product. KARDASHIAN BEAUTY, KARDASHIAN KOLLECTION, KARDASHIAN KHAOS to name just a few, are some of the many trademarks used to market the Kardashian sisters’ goods and services.

December 2016

Mitchell S. Feller

On December 6, 2016, the U.S. Supreme Court issued a long awaited decision in Samsung Electronics v. Apple addressing the scope of damages available when a U.S. design patent is infringed. Reversing a damage award to Apple of $399 million, the Court modified the “total profit” damages standard which had applied to design patents for more than a century.

November 2016

Donna L. Mirman

This fall, the U.S. Supreme Court agreed to consider whether a specific provision of the Trademark Act which bars the registration of disparaging trademarks violates the First Amendment right to free speech. In the case Lee vs. Tam, the Supreme Court will rule on whether the refusal to register the band name THE SLANTS by the United States Patent and Trademark Office (“USPTO”) pursuant to Section 2(a) of the Lanham Act on the grounds of disparagement, is a violation of First Amendment rights.

November 2016

Marc P. Misthal

Fans are very possessive of the objects of their enthusiasm, and the internet serves to simultaneously enhance their enjoyment of—and their claim over—their favorite worlds and characters. By way of example, many viewers “live tweet” television shows, and participate in online chats with actors, directors, and showrunners. Many shows, movies and celebrities encourage the development of fan communities; for example, Star Trek provides links to fan sites, and World of Warcraft fans can access an official fan site kit.

November 2016

Diana Muller

Is it possible to obtain trademark rights from promotional products? Is it possible to protect the category of promotional products bearing a trademark if the products are unrelated to the core business of the trademark owner, and are given away for advertising and promotional purposes only?

The legal protection of trademarks on promotional products and merchandising has been quite controversial and has created a lot of questions relating to the issues of “use in commerce”, proper indication of source and quality control protection.

September 2016

Originally published in Thomson Reuters’s Westlaw Journal on September 9, 2016

Companies doing business abroad should reassess their data policies in light of the newly-enacted EU-U.S. Privacy Shield and the potential outcome of the UK’s decision to leave the EU.

The UK-EU membership referendum of June 23, 2016, popularly termed “Brexit,” has sent shockwaves throughout the world since the final vote was tallied.

September 2016

David D. Rodrigues

If you are considering releasing your proprietary software under an open source license or if you plan on incorporating source code which is governed by an open source license into your proprietary software, you need to fully understand the terms of the license which governs the source code. Open-source software is not synonymous with “free software.” Although the term “open source software” is not strictly defined, it signifies that a particular piece of software is provided under a type of license that generally satisfies a series of elements.

September 2016

David D. Rodrigues

The U.S. Copyright Act of 1976, in general, protects original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The U.S. Copyright Act protects works of authorship which fall within different categories.

September 2016

David D. Rodrigues

Jacob Feldstein, a student intern at GRR, contributed to this article.

Let’s say you have a great idea for a software-based computer program, like a computer game, an image editor tool, or any other program one could operate on a personal computer or mobile device. In order to create your idea as a piece of software, the software must be written in source code.

September 2016

Jeffrey M. Kaden

In filing for patent protection for an invention, almost all countries require that the subject matter that is claimed in a patent application must not be known or otherwise be part of the prior art. The prior art includes different types of activities, such as disclosures in printed publications, sales or commercial use, and published or issued patents, either by the inventor or third parties.

September 2016

Barry R. Lewin

Companies are often created because the founders have a concept they think will take hold. Sometimes, the founders believe the concept is novel, can be protected, and can result in considerable value. For an emerging business, this Intellectual Property (IP) can be the most important asset the business has and can be the difference between success and failure.

August 2016

A version of this article was originally published in Trademarks + Brands Blog, August 11, 2016

Few indulgences could be less complicated than enjoying the sweet crunch of a cookie. Unburdened by the fussy pretensions of designer cakes and faddish, portmanteau pastries—no cronuts for me, thank you—snacking on a cookie calls to mind nothing so much as youthful innocence.

August 2016

Barry R. Lewin

Jacob Feldstein, a student intern at GRR, contributed to this article.

The opening guitar riff to Led Zeppelin’s “Stairway to Heaven” (1971) is well known, but how did it get to be newsworthy recently? The band Spirit claimed that the riff was taken by Led Zeppelin without permission, a copyright infringement, from a riff in Spirit’s “Taurus” (1968).

July 2016

Marc P. Misthal

Hashtags are everywhere. They can be seen on storefronts, in advertisements, on packaging and, of course, on social media. Given their prevalence, it is hardly surprising the hashtags, like domain names before them, have found their way to the U.S. Trademark Office via trademark applications and registrations. Whether it is necessary to register hashtags is another question.

July 2016

Barry R. Lewin

In the on-going evolution of patentability following Alice (see New Guidance for Examiners Relative to Whether a Claim is Limited to an Abstract Idea, Alice Update–Patentability of Software-Related Inventions–Enfish v. Microsoft), The Court of Appeals for the Federal Circuit recently identified another type of invention which may overcome Alice and its progeny.

July 2016

Mitchell S. Feller

Originally appeared on Law360, July 8, 2016

The internet of things (“IoT”), broadly speaking, is a collection of objects with embedded sensors and electronics. Using sensors, internet-enabled objects such as refrigerators, automotive transmissions, and clothing, collect data and automatically communicate with other internet-enabled devices for processing. Collected data can be analyzed to made decisions, such as controlling connected devices, or to adjust what is being collected.

June 2016

Jason R. Wachter

As new social media concepts and associated mobile apps continue to be developed at a rapid pace, inventors, investors and/or companies that own the rights to such social media technology should consider filing for patent protection.

For a product, the underlying technology and/or business method to be patent eligible, it must be useful, new and not obvious.

June 2016

Barry R. Lewin

Utility patents are often used to protect the functionality of a product. Design patents are used to protect a product’s ornamental appearance and cannot be used to protect functional elements. But what happens when a functional element is part of the ornamental appearance? A recent case provides some insight.

In Sport Dimensions Inc., v.

June 2016

Mitchell S. Feller

On June 13, 2016, the U.S. Supreme Court issued its decision in Halo Electronics, Inc. v. Pulse Electronics, Inc. This decision makes it easier for courts to award enhanced damages for patent infringement in cases where the infringement is egregious or there is other willful misconduct. Rejecting the more stringent ‘Seagate’ test that has been in effect since 2007, the Court’s decision allows trial courts to consider if the infringer had a reasonable infringement defense at the time of the infringement, as opposed to at the time of the trial.

May 2016

Marc P. Misthal

Originally published in Law360

Instagram. Facebook. YouTube. Twitter. Right-of-publicity violations could occur on all of these services. In fact, given the rise of the internet and social media, right-of-publicity violations are more likely to happen today than at any time in the past. This is particularly true since celebrity can now accrue to YouTube stars as a result of the simple act of posting a video — or having a video go viral.

May 2016

Barry R. Lewin

Following up on the Enfish and TLI Communications cases (see Alice Update–Patentability of Software-Related Inventions– Enfish v. Microsoft), the USPTO issued revised guidelines for Examiners relative to 35 U.S.C. 101 and whether claims are directed to an abstract idea. Among the key points of the revision to the guidelines are (quoting from the guidelines):

  • “[W]hen determining whether a claim is directed to an abstract idea, it is appropriate to compare the claim to claims already found to be
    directed to an abstract idea in a previous court decision.”
    Claims should be “interpreted in view of the specification, based on whether their character as a whole” to determine patent eligibility.
May 2016

Mitchell S. Feller

In 2012, the Supreme Court stated that 35 U.S.C. § 101 impliedly bars patents on “‘laws of nature, natural phenomena, and abstract ideas.’” Mayo Collaborative Servs. v. Prometheus Labs., Inc.  In 2014, building on its decision in Mayo, the Supreme Court set forth a two-part test for determining whether a patent claim directed to a computer-implemented invention is patent eligible under Section 101: (1) Determine whether the claim is directed to an abstract idea; (2) If so, determine if the claim recites significantly more than the abstract idea itself.

May 2016

Diana Muller

The media has been busy reporting the capture of Mexican drug lord Joaquin Archivaldo Guzman Loera, known as El Chapo, until recently one of the most wanted men in the world. After his daring prison escape through a tunnel using a customized motorcycle, El Chapo Guzman was finally arrested by the Mexican marines in early January.

April 2016

Barry R. Lewin

Golfers often spend considerable time trying to improve their game. Improvement often requires a golfer to make body adjustments by modifying alignment or position, such as keeping one’s hands in a particular position relative to his/her body and keeping his/her body properly positioned throughout a swing. Golfers take lessons and visit with pros to obtain help, but bad habits can die hard.

April 2016

Jeffrey M. Kaden

Under current United States law, the term of a utility patent is 20 years from the filing date of the earliest U.S. or international (PCT) application from which priority is claimed. This presumes, of course, that applicable maintenance fees are timely paid to the Patent Office (at four, eight and twelve year anniversary dates from when the patent first issued).

April 2016

Barry R. Lewin

Under certain situations, holders of patents found to be infringed upon are entitled to enhanced damages. One such situation is when the infringement is found to be willful. Under U.S. law, such enhancement can result in treble damages.

In order for infringement to be found to be willful, under present U.S.

March 2016

Jeffrey M. Kaden

So now that you have filed your patent application in the United States Patent Office in order to try to legally protect your invention in the United States, the question is raised as to how to gain protection in other countries. One way to do so is to file what is referred to as a Patent Cooperation Treaty (PCT) international application.  

March 2016

Barry R. Lewin

A design patent protects merely the ornamental appearance of an article.

“Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title.“ 35 U.S.C. 171.

Design patents are often used relative to articles of clothing, accessories, and other uniquely-appearing articles.

March 2016

Jonathan M. Purow

Originally appeared on Law360

Our world is going virtual. Major industry players such as Microsoft Corp., Sony Corp., Facebook Inc. and Samsung Electronics Co. Ltd. are investing heavily in the future of virtual reality, so it is no wonder that projections estimate that the number of augmented and virtual reality (VR) devices sold will rise from 2.5 million this year to 24 million in 2018.[1] By that time, analysts predict that the VR hardware market will be worth $2.3 billion and the VR software market will be worth $4.7 billion.[2] Consumers are already being offered a number of options separated by power, price and functionality, from the smartphone-dependent $20 Google Cardboard glasses and $100 Samsung VR, to the Facebook-owned and PC-connected $599 Oculus Rift.

March 2016

Barry R. Lewin

Some sports equipment inventions can have a huge impact on safety. In one example, an inventor found a way to improve safety for a skateboard, and, with this new design, the inventor founded a growing and thriving business. Fortunately, he was wise enough to protect the design through timely filing of a patent application.

March 2016

Since the European Commission’s Directive on Data Protection went into effect in October 1998, United States companies that conduct business in Europe have had to be considerate of the EU’s stringent data privacy laws. For a significant period of time, these companies were able to avoid liability for breaches of EU privacy law by relying on the US-EU Safe Harbor, which permitted transfers of personal data controlled in the EU to the US as long as participants complied with principles similar to those in the EU Data Protection Directive.

February 2016

Barry R. Lewin

For the past few years, the U.S. Patent and Trademark Office (USPTO) has been working with patent offices in China, Europe, Japan, and Korea to create a single portal to provide visibility into the status of patent applications filed in different jurisdictions claiming common priorities. A goal of this program has been to allow users, such as inventors and patent attorneys, to have concurrent real-time access to the status and file history of such applications around the world.

January 2016

Diana Muller

The world has recently been fascinated by the capture of one of the most wanted men in the world, Mexican drug lord Joaquin Guzman Loera, known as “El Chapo.” When El Chapo was finally arrested by the Mexican Marines in early January, the image of him wearing a filthy shirt went viral.

December 2015

Jonathan M. Purow

There is little question that there is a sea change occurring regarding the legalization of marijuana. A majority of Americans are now in favor of its decriminalization, and four states (and the District of Columbia, subject to the approval of Congress) now permit recreational use of the drug. Only 22 states prohibit the drug under any circumstances.

December 2015

Marc P. Misthal

There has been an awakening. Have you felt it? That would be the Disney licensing machine, which started a heavy marketing push for its new Star Wars merchandise at the beginning of September with “Force Friday.” That marketing effort will only continue to build, leading up to the release of Star Wars The Force Awakens on December 18.

December 2015

Jonathan M. Purow

In January 2011, a user known only as “Randall” uploaded a video to YouTube under the title “The Crazy Nastyass Honey Badger.”  The video used footage from a National Geographic documentary about the honey badger (an absurdly fierce creature immune to cobra venom), which “Randall” had redubbed with profane commentary featuring lines such as “honey badger don’t care” and “honey badger don’t give a sh*t.”  The video went viral, and has racked up over 75 million views to date, as well as permeating pop culture.

November 2015

Mitchell S. Feller

U.S. Patent law provides that a patent owner can recover at least a reasonable royalty for infringement damages and can obtain damages for infringement occurring up to six years before an infringement lawsuit is filed (provided the patent was in force at the time). 35 U.S.C. 284, 286. However, by failing to take simple steps to comply with patent marking requirements, many companies eliminate their right to recover pre-suit infringement damages.

November 2015

Maria A. Savio

While makers of drugs and electronics are routinely assisted in their efforts to combat counterfeits by Customs and law enforcement because the health and safety of consumers are at risk, luxury goods manufactures usually pursue claims in civil courts. Armed with information resulting from smart investigative work, Belstaff, a premier British apparel and accessories brand, recently prevailed in a lawsuit brought in a New York federal court.

October 2015

Barry R. Lewin

Early stage companies and small businesses often have similar concerns to overcome. For example, an early stage company, such as a technology company, and a long-standing small business are each concurrently challenged to generate new revenue, differentiate themselves in the marketplace, and head off challenges from competitors. However, such companies do not have large budgets for business development and marketing in comparison with bigger firms, yet these companies need to continue to create new products and services with innovative elements just to continue to survive.

October 2015

Jonathan M. Purow

From the moment that your startup comes up with a company name, you are creating intellectual property. While every single dollar counts when you are first launching your company, it is important to understand that if certain steps aren’t taken to protect your intellectual property from the onset, it can cost you a lot more down the road.

October 2015

Barry R. Lewin

We have written in the past about patents in the entertainment field, such as one received by the entertainer Michael Jackson for a shoe for his moonwalking. Patents in the entertainment field can also be directed to devices related to musical instruments, such as tuners or supports, or even new ways of recording.

October 2015

Marc P. Misthal

Everyone has heard of Pfizer’s Viagra. Most people know that it is a “little blue pill”, even if they have not used it themselves. Some might even know that the pill is shaped like a diamond. This public awareness is a result of the outsized publicity and media attention that Viagra has received since even before its introduction.

September 2015

Descending into the atrium of the tower bearing his name, Donald Trump prepared to announce his candidacy for president. Blaring above the reporters’ din, Neil Young’s ferociously populist 1989 “Rockin’ in the Free World” ripped through the speakers.

The content of Trump’s announcement raised hackles in at least two countries. Among the incensed was Young himself—icon of the anti-war movement and avowed Bernie Sanders supporter—who had not consented to Trump’s use of his famous rock anthem.

September 2015

George Gottlieb, Jonathan M. Purow

Paul Smith Limited, The Rug Company Limited and affiliated entities have successfully defended copyright infringement allegations asserted by California artist Judy Stabile.

Factual Background

In May 2014, California artist Judy Stabile brought suit against the British companies Paul Smith Limited, The Rug Company Limited and their American affiliated entities for copyright infringement of three works in her “Cylinder” series of paintings, “Extrapolations #1”, “Extrapolations #3”, and “Westside Story”.

September 2015

Warner/Chappell, an affiliate of Warner Music Group, has required producers and other individuals to pay royalty fees for any “public performance” of the song “Happy Birthday” for almost three decades. It has been reported that since purchasing the “Happy Birthday” rights from Birchtree Ltd. in the late 1980s, Warner/Chappell has collected about $2 million per year in royalties.

September 2015

Jeffrey M. Kaden

On July 30, 2015, the Court Of Appeals for the Federal Circuit affirmed the previous decision of the Federal District Court in New York that High Point Design – and its customers Walmart, Sears and Meijer – did not infringe a design patent owned by the North Carolina company Buyer’s Direct and directed to a “fuzzy” slipper.

September 2015

Donna L. Mirman

In an important victory for Mardi Gras parade goers, the Fifth Circuit returned the tradition of twisting parade beads into the shape of dogs back to the Mardi Gras public and its bead dog aficionados.

Haydel Enterprises, Inc. operates a bakery in New Orleans well-known for its traditional Mardi Gras king cakes and commissioned an artist to design a mascot named Mardi Gras Bead Dog (pictured below).

August 2015

Barry R. Lewin

Sports gear is constantly being improved. Athletes and others, such as trainers, spend a considerable amount of time with equipment and are often the sources of new ideas and gear. But with the advent of smart phones, casual athletes can envision new services related to sports, and one of these ideas recently resulted in a granted patent.

August 2015

Diana Muller

Since the American Tobacco Company put baseball players on promotional cards in the 1920s, third parties have been appropriating the names and likenesses of professional athletes for a profit. Fortunately for these professional athletes, there are several avenues by which they can control the use of their likeness under U.S. law, including through the Federal Trademark Act, commonly known as the Lanham Act.

August 2015

Maria A. Savio

People often wonder how Internet based companies generate revenue to support their activities and provide you with the services they seemingly make freely available to you. Take Facebook for instance. Facebook allows its users to keep in constant touch with “their friends.” The user immediately shares content with his or her friends, and can even distinguish those friends and create “family” lists for even more selective sharing of content. 

August 2015

Barry R. Lewin

It seems that many people these days have ideas related to services for mobile devices.  Often, these ideas provide improvements to our ways of life.  At times, the ideas utilize abilities of mobile devices, but go well beyond the devices themselves.  These concepts can evolve into very significant business opportunities, and these entrepreneurs need to protect themselves before their ideas are implemented by others.

July 2015

Jonathan M. Purow

A New York Federal Judge recently ruled in Adjmi v. DLT Entertainment Ltd. that the off-Broadway play “3C” was a permissible parody of the classic 1970s TV comedy “Three’s Company.”

The current owner of the copyright rights to “Three’s Company,” DLT Entertainment Ltd., had threatened action against “3C” playwright David Adjmi, asserting that the play was an infringement of the iconic sitcom.

July 2015

Marc P. Misthal

Businesses commonly use names of their founders as a trademark or brand name. This can lead to a variety of issues. One issue that arises is who has the right to use a particular name when someone else is already using the same or a similar name in the marketplace.

There is no unfettered right to use your name in connection with your business: just because a name is your name does not mean you can use it.

July 2015

By J. Malki

Since 2011, jewelry designer Solid 21, Inc. has alleged in multiple actions that several leading watchmakers have infringed its registered trademark RED GOLD. On June 12, 2015, Judge Gee of the U.S. District Court for the Central District of California scuttled Solid 21’s campaign by holding that the RED GOLD trademark is generic and unenforceable for jewelry.