Above the Fold

The Fox Rothschild Advertising & Trademarks Blog

Yesterday the Food & Drug Administration (“FDA”) Commissioner announced a new plan for increased oversight over dietary supplements.  In his statement, the Commissioner noted how much the dietary supplement market has grown and how many consumers now take a dietary supplement on a regular basis, stating that “consumers need to have access to safe, well-manufactured, and appropriately labeled products.” As a reminder, the FDA does not pre-approve dietary supplements like it does new drugs; however, it does require…
The United States Patent and Trademark Office (“USPTO”) approved Campbell Soup Company’s (“Campbell’s”) application to trademark the word “chunky.”  Campbell’s filed an application with the USPTO back in May 2018.  In its application, Campbell’s cited to “massive unsolicited media coverage of chunky,” according to the Philadelphia Business Journal.  The word “chunky” has been parodied by pop culture on various outlets, including programs like Saturday Night Live, The Simpsons, Family Guy, and The Daily Show.  Campbell’s has…
From beer to snacks to cars to tech, we love them all. Or, we love judging them all. Each year, we tune in to see which companies—both the old staples and the new blood—will shell out the cash for a Super Bowl ad. Throughout breaks in the game (or cheating with an online search), we intently watch for laugh-out-loud quips, emotional storylines, and cringe-worthy moments, knowing “which was your favorite?” will be an office topic…
We live in an era where news, information, and trends move very quickly. Words, phrases, or ideas that were obscure or non-existent yesterday can be the top trending story tomorrow. These overnight trends are now routinely used by opportunists in trademark applications. But trademarks are meant to be used to identify the source of and to distinguish the goods and services of one seller or provider from those of another. Indeed, as the USPTO recently reiterated, “[t]he…
Of late, multiple authors of this blog have followed the legal landscape around “scandalous” trademarks. In particular, this post follows up on the USPTO’s petition to the Supreme Court, which we previously covered. A “scandalous” or “immoral” trademark is one which a member of the public would likely find “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable,” and generally offensive to one’s conscience or morality. Until recently, trademarks that were…
Earlier this month, the U.S. Supreme Court refused to review a California court’s dismissal of actress Olivia de Havilland’s lawsuit against FX Networks.  The decision sustains First Amendment protection to expressive works and free speech rights of the creators. De Havilland had accused FX of violating her right of publicity and depicting her in a false light in the FX miniseries “Feud: Bette and Joan.”  She claimed that actress Catherine Zeta-Jones’s portrayal of De Havilland…
Nothing is as it seems. I previously blogged about the marketing of non-dairy products as “milk” – now it’s meat’s turn.  According to a recent article in the Star Tribune, multiple states are either already regulating or considering regulating use of the term “meat” on product labels. As explained in the article, supporters of a potential regulation in Nebraska, a large producer of meat products, believe the measure is necessary to protect consumers from being misled and…
The Second Circuit Court of Appeals returned a favorable ruling for major record companies in a copyright infringement case on December 12, 2018.  The ruling came down in Capitol Records, LLC v. ReDigi Inc., a lawsuit involving an online platform (“ReDigi”) designed to enable the lawful resale of purchased digital music files.  The Second Circuit concluded that ReDigi infringed the record companies’ exclusive rights under Section 106 of the Copyright Act. ReDigi is an…
Chances are you have seen rumblings of creative, even (dare I say) funny cease-and-desist letters, particularly those aimed towards trademark or copyright infringement, popping up in the news. You know the ones: an actor playing a town crier pops in on a local brewery to read a cease-and-desist letter in ‘ye olde English; or a popular fast food joint sends a pun-filled letter to a local brewery demanding they cease from using the restaurant’s trademarked…
Earlier this month, the Canadian Intellectual Property Office (“CIPO”) published a new set of Trademark Regulations and announced that amendments to Canada’s trademark laws will go into effect on June 17, 2019.  The CIPO’s website describes the regulatory initiative as “accession to trademark treaties and modernization of Canada’s trademark regime.”  As summarized by the Canadian Trademark Blog, the amendments include: Canada’s accession to the Madrid Protocol; eliminating filing bases and use of a mark as a prerequisite; introducing a requirement…