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Intellectual Property Alert >> Supreme Court Unanimously Rules That Willfulness Is Not Required to Recover Profits - Alert - 07/07/2020

As a result of the Supreme Court’s unanimous decision, a finding of willfulness is not a precondition that must be satisfied for a plaintiff to recover an infringer’s profits as a remedy for trademark infringement, although the infringer’s mental state remains a highly important consideration. While this decision may make it easier for a rights owner to obtain an infringer’s profits without having to make a showing of willfulness, the extent to which willfulness will factor into courts’ decisions on this issue in the future remains to be seen.

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Intellectual Property Alert >> The Impact of COVID-19 on U.S. Trademark Applications and Registrations - Alert - 04/02/2020

Although the USPTO may extend certain filing deadlines and payments by 30 days where the trademark owner can show that the COVID-19 outbreak interfered with timely filing or payment, trademark owners should continue to exercise best efforts to comply with all deadlines.

Davis & Gilbert will periodically provide updates on trademark-related changes that result from the Coronavirus pandemic in the US and internationally.

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Intellectual Property Alert >> Brexit’s Impact on European Union Trademarks - Alert - 02/25/2020

Now that Brexit has occurred, companies should review their UK and EU trademark portfolios during the transition period to determine what actions should be taken.

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World Trademark Review // News Digest - Press Mention - 01/10/2020

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Intellectual Property Magazine: American Graffiti - Published Article - 09/19/2019

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Intellectual Property Litigation Alert >> Was Missguided Misguided? Kim Kardashian West Obtains $2.7 Million Judgment in Right of Publicity and Trademark Suit - Alert - 08/01/2019

A celebrity’s most valuable asset is likely their name and likeness. As the Kardashian case illustrates, many celebrities are being targeted by third parties who use their names and images without their permission when promoting products or services. There are a number of steps that celebrities can take to stop the unauthorized commercial use of their name and likeness, such as submitting website and social media takedown notices, sending cease and desist letters and, of course, filing lawsuits.

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Intellectual Property Alert >> Who is “Lucky” and Will “Willfulness” Rule? Two Trademark Supreme Court Cases Will Decide - Newsletter - 07/26/2019

Arguments in Romag and Lucky Brand likely will be held in the fall, followed by the Court’s decisions, which will have significant implications for trademark cases moving forward.

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Intellectual Property Litigation Alert >> Copying Photographs Found Online and the Fair Use Defense - Alert - 07/12/2019

Companies that find photographs, images, or social media posts online and seek to use these works in advertising or another commercial context, without obtaining the copyright owner’s permission, may subject themselves to copyright infringement claims, even if they crop the works before using them. The use of pre-existing works may constitute fair use when used in connection with commentary on or criticism of the works. When a company wants to use a pre-existing work without permission, it should consult with legal counsel to help evaluate whether its contemplated use can be considered fair use.

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Intellectual Property Alert >> Patent and Trademark Office Clarifies Rules for Cannabis Trademarks - Alert - 07/02/2019

Now that the USPTO has issued this guidance, its examiners can be expected to issue decisions on pending cannabis-related trademark applications. Companies with applications pre-dating December 20, 2018, or considering filing new applications, should keep the essential elements of the guidance in mind and should consider seeking advice of counsel to help move their applications forward.

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Law360: Combating False Celebrity Endorsements Online - Published Article - 06/17/2019

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Insolvency, Creditors’ Rights & Financial Products Alert >> Trademark License Rights Survive Rejection in Bankruptcy - Alert - 06/10/2019

The Mission Product decision should resolve uncertainty created by the circuit split between the First Circuit and Seventh Circuit decisions. The Supreme Court’s ruling should also reassure trademark licensees that should their licensor end up in bankruptcy, absent contract terms or state laws to the contrary, their trademark license rights will not instantly vanish.

In a concurrence, Justice Sotomayor pointed out that under this holding, rights of trademark licensees are more expansive in certain respects than what is codified under section 365(n) for patents and copyrights. Congress now has an opportunity to step in, as it did to address patent and copyright licenses explicitly, to apply protections more uniformly among trademarks, copyrights and patents. In the meantime, licensees and prospective licensees of trademarks now have assurance that the bankruptcy of a licensor will not terminate the license, bringing greater certainty and attractiveness to trademark license transactions.

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Intellectual Property Litigation Alert >> When Does “Copying” a Photograph of a Building Constitute Copyright Infringement?  - Alert - 10/25/2018

Companies that use pre-existing photographs of buildings for reference in advertising or other materials may subject themselves to copyright infringement lawsuits. Even though there is generally no copyright protection for a building itself, there may be protection for a rendering of a building in the form of a photograph or illustration, and the use of that rendering for inspiration to create a new work, without obtaining authorization from the copyright owner, may lead to copyright infringement claims. Whenever a company seeks to use a pre-existing photograph or other rendering of a building or skyline as reference material, or an actual photograph, it should consult with legal counsel to help identify and avoid potential copyright, trademark and related issues.

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Intellectual Property Litigation Alert >> Are APIs No Longer Safe To Use When Creating Mobile And Other Software Applications? - Alert - 05/03/2018

Based on the decision of the Court of Appeals, software developers and programmers should understand that there is risk in using any copyrighted code, including API packages and code, without first obtaining authorization from the owner of the API or otherwise adhering strictly to the API terms and conditions. The safest course for software developers and programmers is to ensure that they have a license or are otherwise authorized to use the code in accordance with the rights owner’s terms and conditions, even if that code is being used in a different device or environment.

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Litigation Alert >> Battling the Real "Fake News": FTC Reaches Multi-Million Dollar Settlement with Internet Marketers for False Celebrity Endorsements - Alert - 11/30/2017

The FTC's settlement with the Defendants allegedly engaged in these deceptive marketing practices serves as a reminder that the parties responsible for online advertising using public figures’ names and images without authorization can be identified and stopped, and that those parties may include the operators of large marketing networks. In other words, the FTC did not just find the parties responsible for the unlawful advertising practices; it also found parties within the United States with assets significant enough to disgorge millions of dollars in deceptively-acquired profits.

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Intellectual Property Litigation Alert >> The Days of Patent Plaintiff Forum Shopping May be Over - Alert - 05/23/2017

The Supreme Court’s decision in TC Heartland establishes that just having sold goods in the judicial district is now insufficient on its own to establish jurisdiction. Patent holders bringing suit must do so in either the judicial district where the defendant resides, or the judicial district where the defendant has a regular and established place of business. The decision will likely discourage patent trolls from filing suit in the Eastern District of Texas and other jurisdictions with little to no connection to the defendant.

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Intellectual Property Litigation Alert >> Breach Of Contract Claims Allowed For Alleged Open Source License Violations - Alert - 05/18/2017

A recent California decision allowed breach of contract claims for GPL violations in connection with the use of open source software. As the decision shows, reliance on arguments that the GPL is not a contract or that corresponding contract claims are preempted by copyright law may prove misplaced. Accordingly, businesses should carefully consider contract law implications when licensing and using GPL-governed code.

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Intellectual Property Alert >> $500 Million Oculus Verdict Highlights Litigation Risks for Emerging Tech Companies - Alert - 02/23/2017

Companies developing – or seeking to acquire – new technology must take every precaution to limit their risks before litigation is on the horizon. The full extent and scope of those risks is often not clear without careful analysis. Working with counsel every step of the way can help to uncover potential liabilities and limit exposure.

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Intellectual Property Litigation Alert >> U.S. Supreme Court Sets the Bar Higher for Obtaining Damages for Design Patent Infringement - Alert - 12/19/2016

The Supreme Court’s decision sets the bar higher for design patent holders to recover for infringement and opens the door to apportionment of damages. Parties looking to file for design patents will likely consider claiming their patents more broadly, in order to avoid the specter of reduced damages in the event the design patent is infringed. They may also consider alternative forms of protection, such as trade dress and copyright if appropriate. In addition, how damages should be apportioned will now be an important part of both side’s litigation strategy.

As the Court refused to delineate a test for determining the infringing article of manufacture, address whether there must be a causal link between the total profit made and the infringing article of manufacture, or explain how to apportion "total profits" by component, further Federal Circuit decisions on these issues are likely to follow.

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Intellectual Property Alert >> New Copyright Office Regulations Require Websites to Re-Register for DMCA Safe Harbor Protection - Alert - 12/15/2016

Website operators and other online service providers must re-register their DMCA designated agents using the Copyright Office’s new online filing system by December 31, 2017 to avoid losing DMCA safe harbor protection.

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Intellectual Property Litigation Alert >> Second Circuit Narrows 'Red Flag Knowledge' Exception to DMCA's Safe Harbor Protections for ISPs  - Alert - 08/16/2016

The bar is now set high in the Second Circuit for copyright owners to make the evidentiary showing necessary to establish that an ISP had red flag knowledge because it was aware of facts or circumstances that made copyright infringement obvious. An ISP does not have an affirmative obligation to police its websites for infringing content or to determine whether its users engaged in fair use. It does remain in the best interest of copyright owners to identify the specific infringing content that they want removed. They are also left with the opportunity to take discovery about an ISP’s content review procedures to establish a red flag knowledge claim. However, a copyright owner will still bear a heavy burden to show that an ISP actually knew about infringement by its users or was aware of facts or circumstances that made the specific infringing activity obvious, so that the ISP is no longer entitled to the DMCA’s safe harbor protections.

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Intellectual Property Alert >> Implications of Brexit on Trademarks in the EU - Alert - 07/07/2016

Even though the United Kingdom’s exit from the EU will not take effect for quite some time, trademark protection will ultimately be impacted. Therefore, while immediate action may not be necessary, we recommend reviewing your UK and EU business presence and trademark portfolio with counsel to determine whether any actions should be taken in the interim.



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