Section 45 of the Lanham Act states a trademark is considered abandoned when “its use has been discontinued with intent not to resume such use.” Abandonment may be inferred from the surrounding circumstances, but proof of nonuse for three consecutive years is prima facie evidence of abandonment. Since use of a mark must be bona
Copyright law affects one’s rights and ability to use another’s work, including writings, drawings, photographs, paintings, software codes, or even business plans. The purpose of copyright law is to promote the creation of works by giving authors exclusive property rights; copyright law is intended to encourage the dissemination of these works, bolstering a competitive marketplace.
Continue Reading What You and Your Business Need to Know About Copyright Law and Infringement
Earlier this month, the Eastern District of Pennsylvania confirmed social media platforms’ immunity under the Communications Decency Act (CDA) for right of publicity violations by users and members of the platforms. Several years ago, Karen Hepp, a newscaster for Fox 29 Philadelphia and co-host of Good Morning Philadelphia, discovered that her image, via a photograph unknowingly taken of her by a security camera in a New York City convenience store, was being used in conjunction with online advertisements for dating websites posted on Facebook. Additionally, the photo had been posted to Imgur and Reddit in several sexually explicit contexts. Not only did she never consent to having her image used for such purposes, she also was allegedly unaware that the photo had been taken in the first place.
Continue Reading The Communications Decency Act Protects Social Media Platforms Like Facebook, Instagram, and Reddit from Common Law Right of Publicity Violations
Kristel Oreto, a Philly tattoo artist, acquired nearly one million fans and followers on social media platforms Facebook and Instagram. Her following is thanks in large part to her inspiring story of weight loss, which she detailed along the way. Over the course of several years, Oreto shed more than 120 pounds and 14 dress sizes through extensive dieting and exercising. Throughout her journey, she posted numerous before-and-after photos in order to document her achievements and in hopes of inspiring others.
Continue Reading Fake News: Facebook Reaches Settlement for Infringing Ads
The Copyright Act grants protection for “original works of authorship fixed in any tangible medium of expression,” and aims to protect a creator’s proprietary interests in his expressive works. 17 U. S. C. §102(a). Traditionally, the Copyright Act provided protection for books, maps, prints, engravings, musical and dramatic compositions, photographs, and works of art. The modern day Act protects works of authorship including website text, pantomimes, sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works.
Continue Reading Supreme Court Strikes Down Pay-Per-Law Copyright: Copyright Protection Not Available for Annotations to State Law If Commissioned by Officers With Legislative Authority
Last July, a jury ruled that Katy Perry and her co-writers had plagiarized the Christian rap song Joyful Noise by Marcus “Flame” Gray in Perry’s creation of the 2013 hit Dark Horse; Perry was ordered to pay a $2.8 million penalty. The jury verdict was met with wide criticism; one songwriter emphasized that despite the similarities, no one person should be able to own the musical elements as they represent “fundamental aspects of pop music”. The New York Times framed the debate centered around verdicts like the one reached as a “penalty for making use of generic musical elements, like a song’s beats and feel”. Perry and the Dark Horse creative team appealed the ruling, and on March 17, 2020, the Central District of California overturned the jury verdict, relying on the Ninth Circuit’s en banc Led Zeppelin decision.
Continue Reading Good News for Pop Singers Katy Perry & Ed Sheeran: Copyright Does Not Protect Musical Building Blocks
Trademarks serve as source indicators for distinguishing the goods sold by different manufacturers. Trade dress, a “symbol” or “device” by which the goods of a manufacturer may be distinguished from the goods of others, is registrable as a trademark if its function is to identify the source of the goods. Trade dress may be the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.
Continue Reading Color Combination and Design on Product Packaging Can Function as a a Trademark Federal Circuit Says
In cases of trademark infringement, it has long been debated whether infringers should be required to disgorge profits if they unknowingly violated intellectual property laws.
For decades, there was a wide variance on whether a trademark owner would be able to recover profits in litigation. While the Lanham Act (1946), the guiding trademark legislation, states that profits could be awarded “subject to the principles of equity,” there has not been consensus on how that should be applied. One particular sticking point?
Willfulness, or the voluntary, intentional violation of a known legal duty.
But last week, the Supreme Court provided much-needed clarity on this topic for courts, attorneys, and business owners when it ruled in favor of Romag Fasteners against Fossil Inc. The U.S. Supreme Court handed down a ruling on trademark infringement, stating that infringers can, in fact, be made to hand over profits to a brand owner even when the infringers have not willfully violated the law.
While the issue of what color a trash bag handle is may not be the first topic you would expect to raise ire in the trademark industry, the world is an unpredictable place. Recently, Poly-America and API, two major manufacturers of trash bags in the United States, went up against each other over their competing trade dresses of colored trash bag drawstrings – Poly-America uses an orange drawstring, and API uses a gray colored drawstring.
While studies show that each individual sees color differently, the Trademark Trial and Appeal Board (TTAB) determined that as used on medical gloves, a shade of light green is not confusingly similar to a shade of dark green. In a black-and-white decision, the TTAB reversed a Trademark Examining Attorney’s refusal to register the color green identified as Pantone 2274C as used on medical gloves in light of an existing registration for the color green identified as Pantone 7488U used on the same line of goods.
The Gloves Are Greener on the Other Side
In November of 2019, Medline Industries, a leading manufacturer of medical gloves, submitted a request to register the color of their green gloves, Pantone 2274C, on the United States Patent and Trademark Office’s Supplemental Register. This is the list for trademarks that are not yet eligible to be listed on the Principal Register, but may be one day. The Trademark Examining Attorney, however, rejected Medline Industries’ application. The rejection was based on Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), which restricts granting trademarks based on the probability of confusion with another mark.