By:  Matt Lubozynski

The Supreme Court recently decided another intellectual property case in Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., No. 18-1086, 2020 WL 2477020, at *2 (U.S. May 14, 2020) (“Lucky Brand”). Although the case concerned trademark infringement, the issue before the Supreme Court went to whether to recognize a separate res judicata doctrine titled “defense preclusion.” Justice Sotomayor provided the opinion of a unanimous Court. Continue reading

Trademark Plaintiff Not Required to Show Willful Infringement Before Award of Infringer’s Profits – Supreme Court Settles Split Among the Circuits in Romag Decision

By J. Graham Matherne

The Lanham Act sets forth various remedies for trademark infringement including the potential recovery of the infringer’s profits. 15 U.S.C. § 1117(a). Prior to April 23, 2020, there was a split in the federal circuits as to whether an award of infringer’s profits required a finding that the infringement was willful. Continue reading


By Julie Laemmle Watts 

Many people feel a certain level of invincibility to data breaches and online scammers, maybe because they are well-read and knowledgeable about what to look for and avoid, or maybe because they simply think they are smart enough to know a scam when they see it. While that may be true in the ordinary course, scammers have adapted to and are preying on peoples’ vulnerable states in the current pandemic. This is even more concerning given the vast number of people working from home, which creates additional exposure for employers. Continue reading

Intellectual Property & COVID-19

By Julie Laemmle Watts

COVID-19 has drastically impacted people’s lives and livelihoods. It has also had drastic impacts on many legal sectors, but its impact on intellectual property has been much less severe with the United States Patent and Trademark Office (“USPTO”) and Copyright Office moving forward via remote operations. Continue reading

Ninth Circuit Court Ruling in Taylor Swift “Shake It Off” Case May Portend a “Shake Down” of Defendant Copyright Holders and the Lessening of the “Originality” Requirement for Copyright Protection

By Graham Matherne

The Copyright Act protects original works of authorship fixed in tangible form.  17 U.S.C. §102(a).  To be “original,” the expression must have originated with the author and contain a creative element – “a spark that goes beyond the banal or trivial.”  Nimmer on Copyright § 2.05[B](2017).  “Although the amount of creative input by the author required to meet the originality requirement is low, it is not negligible.”  Satava v. Lowery, 323 F. 3d 805, 810 (9th Cir. 2003) (citing Feist Pubs, Inc. v. Rural Tel. Service. Co., 499 U.S. 340, 362 (1991)).

In 2001, Sean Hall and Nathan Butler (“Hall”) composed a song “Playas Gon’ Play,” which contained the lyrics “Playas, they gonna play / And haters, they gonna hate . . .”  In 2014, Taylor Swift co-authored the song “Shake It Off,” which contained the lyrics “Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate . . .” Continue reading

The F-Word on Trial: The Supreme Court Invalidates the Ban on Registration of “Immoral or Scandalous” Trademarks

By Meghan Cox and Michelle Browning Coughlin

In a 6-3 ruling announced last Monday, the Supreme Court struck down the Lanham Act’s longstanding prohibition on registering “immoral or scandalous” trademarks. The decision in Iancu v. Brunetti is the culmination of Erik Brunetti’s 8-year battle to register the name of his edgy streetwear brand, FUCT. Billed as an acronym for “Friends You Can’t Trust,” pronouncing the brand name out loud is “the equivalent of [the] past participle form of a well-known word of profanity.” In what may have been a first for the Supreme Court, both attorneys and Justices refrained from even saying the contested trademark on oral argument, opting to use “safe-for-work” references to “Mr. Brunetti’s mark” instead.

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