On January 22, 2024, the Court of Appeals for the Federal Circuit affirmed a decision by the Trademark Trial and Appeal Board (the “TTAB”) to refuse registration of the phrase EVERYBODY VS RACISM in connection with merchandises and services promoting
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Jury Rules that Kat von D’s Miles Davis Tattoo Did Not Infringe
Katherine von Drachenberg using the Miles Davis reference. Screenshot from Complaint.Read more
Trademark Application for Fruity Pebbles’ Colors—“Yabba-Dabba-Delicious” but Not Protectable
In a precedential decision, the Trademark Trial and Appeal Board (“TTAB”) affirmed refusal of Post Foods, LLC’s application to register a color mark, consisting of “the colors of yellow, green, light blue, purple, orange, red and pink applied to the…
“In the Ayer”: The Supreme Court Considers the Availability of Retrospective Damages for Copyright Infringement
On February 21, 2024, the Supreme Court heard oral argument in Warner Chappell Music, Inc. v. Nealy, a case focusing on the availability of damages for copyright infringement. At issue is whether a copyright plaintiff may obtain retrospective relief for…
E.D. Pa. Delivers Summary Judgment Victory in Row Over Meta Tags
In today’s ever-evolving online world, the intersection between trademark infringement and the use of trademarks as meta tags is an issue receiving more and more attention. In a drawn-out dispute spanning more than five years , the United States District…
D. Mass Says They’re Both the Bad Art Friend
In October 2021, Robert Kolker published a longform feature in The New York Times Magazine with the title “Who Is the Bad Art Friend?” In his piece—which sparked widespread discussion online about the ethics of altruism, art, and…
Ninth Circuit Pours Jack Daniel's in “Punchbowl” Trademark Suit
For many years, courts often applied the quintessential likelihood-of-confusion test for trademark infringement claims more narrowly when analyzing allegedly infringing products that were also works of artistic expression. For such products, courts generally applied a threshold First Amendment test, as…
Parody Sneaker Afforded No First Amendment Protection Against Vans’ Trademark Infringement Claims
Courts typically analyze trademark infringement claims under the Lanham Act’s likelihood of confusion test. This traditional test, however, is applied more narrowly when an allegedly infringing product is a work of artistic expression. In those cases, courts apply heightened scrutiny…
Generating Litigation: N.D. Cal. Dismisses Some Copyright Claims in Andersen and Kadrey AI Cases
The groundswell of lawsuits filed against generative artificial intelligence (GenAI) companies based on various theories of copyright infringement shows no sign of abating. Readers following this issue will be aware, for example, of the claims filed by the New York…
Fitness Franchise Hamstrings Naked Licensing Defense on Summary Judgment
Licensing trademarks to franchisees can be a valuable and successful business model—think McDonald’s, Papa John’s, Dunkin’, Orangetheory—but it also comes with some risks. One of those risks is naked licensing, which occurs when a licensor (or franchisor) fails to adequately…