Category Archives: Uncategorized

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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Swagway, LLC v. International Trade Commission: A Circuit Split in the Preclusive Effect of Non-Patent ITC Rulings

By Matt Williams and Bobby Whitmer, Wyatt Summer Associate

Overview

Historically, the U.S. Court of Appeals for the Federal Circuit(“Federal Circuit”) has held that International Trade Commission (“ITC”) rulings on patent infringement issues do not have a preclusive effect on future district court proceedings. The Federal Circuit, however, had not decided whether a trademark or other non-patent ruling by the ITC would fail to preclude later district court cases as well.  In an issue of first impression in the Federal Circuit, Swagway, LLC v. International Trade Commission and Segway, Inc., DEKA Products Limited Partnership, Ninebot (Tianjin) Technology Co., Ltd., held that, like a patent infringement ruling, a ruling by the ITC concerning trademark infringement will not have a preclusive effect on later district court cases. This holding effectively created a circuit split regarding the preclusive effect of ITC rulings between the Federal Circuit and the other Circuits that have addressed the issue. Continue reading

Unanimous Music Modernization Act Passage and Enactment Positively Impacts the Music Industry

audio-black-and-white-close-up-185030By Graham Matherne

On October 11, 2018, President Trump signed into law the Orrin G. Hatch – Bob Goodlatte Music Modernization Act (“Act”), which had unanimously passed both the House of Representatives and the Senate.  The Act has been praised by often-times divergent groups in the music industry – e.g. songwriters, publishers, digital streaming services, performance rights organizations – as being a “truly historic moment for the music industry.”  See e.g. Variety, Oct. 11, 2018 “Trump Signs Sweeping New Music Licensing Legislation,” quoting BMI President and CEO Mike O’Neil.

The Act actually is comprised of three separate pieces of legislation:

  1. The Music Licensing Modernization Act (“MLMA”) (Title I of the Act);
  2. Compensating Legacy Artists for Their Songs, Service and Important Contributions to Society Act (“CLASSICS Act”) (Title II of the Act); and
  3. Allocation for Music Producers Act (“AMP Act”) (Title III of the Act).

Changes Under the MLMA

The MLMA makes significant changes with regard to Continue reading

Recent Case Highlights the High Price of Trade Secret Misappropriation

By Julie A. Laemmle

In 2015, BladeRoom Group, Ltd. (“BRG”) and Bripco (UK) Limited (“Bripco”) filed suit in the United States District Court, Northern District of California, alleging that Facebook as well as Emerson Electric Co., Emerson Network Power Solutions, and Liebert (collectively “Emerson”), stole its designs for pre-fabricated modular facilities to build the Facebook data center in Lulea, Sweden. The lawsuit also contended that Facebook published the data center ideas on an Open Compute Project blog in violation of the Open Compute rules, which stipulate that members can only share intellectual property with the owner’s consent. BRG ultimately sought $365 million in damages from its claims for trade secret misappropriation, breach of contract and violation of California’s Unfair Competition Law.

BRG claims it met with the Facebook and Emerson executives in the summer of 2011 and discussed BRG’s technology shortly thereafter. Subsequent to this meeting, Facebook asked BRG for Continue reading

Blocked: Knight Institute Fractures Trump’s Twitter Shield

By Meghan Cox; Jake Smith, Wyatt Summer Associate 2018

 Knight First Amendment Institute at Columbia University v. Trump

Most Americans would agree that Donald Trump has no greater platform than Twitter. The self-proclaimed “Ernest Hemingway of 140 characters” understands that he can maximize his influence through the @realDonaldTrump account because tweeting provides the most direct interaction with constituents.  But unlike Hemingway, who is renowned for his “iceberg theory” of writing—in which a story’s deeper meaning is veiled under simple innuendos and symbolism—President Trump leaves little to a reader’s imagination.  His direct, and often abrasive, rhetoric has led many readers to reply in disagreement, and, in turn, Trump has developed a propensity for blocking these readers on Twitter.  Now that Trump is blocking people in his capacity as President, his so-called “haters and losers” may have recourse under the Constitution. Continue reading

PYRAT Rum and PIRATE PISS Beer Not Confusable, According to TTAB

By Julie Laemmle; Alicia Humphrey, Wyatt Summer Associate 2018alcohol-bar-black-background-602750

In a recently released ruling, the Trademark Trial and Appeal Board (“Board”) dismissed PYRAT RUM’s opposition to registration of PIRATE PISS for beer, ale and lager.  Patrón Spirits International AG v. Conyngham Brewing Company, Opposition No. 91226939 (June 8, 2018).  The Board, in an opinion authored by Administrative Trademark Judge Thomas W. Wellington, held that PIRATE PISS for beer is not likely to be confused with the already-registered mark PYRAT for rum.  By rejecting PYRAT RUM’s challenge, the Board is allowing Conyngham Brewing Company’s application for registration to proceed.

In dismissing the Opposition, the Board took into account a variety of considerations commonly referred to as the “du Pont factors.”  The opinion, organized according to the du Pont factors, found the following: Continue reading

Net Neutrality Repeal is Anti-Consumer but the Problem is Even Bigger

This article was originally published on Commercial Appeal, part of the USA Today Network, as an opinion piece written by Mark Vorder-BrueggeClick here to view the original publication.

net neutrality

The Federal Communications Commission has now repealed its own 2015 “Net Neutrality” regulations. As controversial as this has been, it is just a small part of the federal government’s massive policy failure concerning the Internet.

Media reports over the past 15 years have detailed extensive horror stories of monopolistic service options, consumer price-gouging, frequent outages, and downright hostile support personnel.

A truly legitimate policy would be something like this: “High-speed, high-quality Internet access available to everyone at competitive prices, with minimal service disruptions and effective, user-friendly provider support.”

No version of the FCC regulations or any other agency initiatives, or Congress, or any president, has ever adopted a comprehensive policy of this type.

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