On May 9, 2024, the United States Supreme Court issued its decision in Warner Chappell Music v. Nealy, holding that a copyright owner may obtain monetary relief for any timely infringement claim, no matter when the infringement occurred—in other words,
Incontestable Blog
The Incontestable Blog, published by Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, focuses on intellectual property law, particularly trademark law and related litigation. It covers topics such as Trademark Trial and Appeal Board (TTAB) decisions, Federal Circuit rulings on trademark oppositions and cancellations, issues of consumer confusion, specimen requirements for trademark registration, and fair use in copyright law as it relates to emerging technologies like artificial intelligence and large language models. The blog provides updates on case law developments and legal interpretations affecting trademark prosecution and enforcement.
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S.D. Florida Says That “Legacy Reunion of Earth, Wind & Fire Alumni” Is Not Entitled to Nominative Fair Use of Original Band’s Name
By Publisher
In 1970, singer Maurice White founded a musical group called Earth, Wind & Fire. The band’s timeless and unmistakable songs, including the hits “September” and “Let’s Groove,” range in genre from R&B to disco to pop. Thanks to its sustained…
Courts and Legislators Addressing the Right of Publicity in the Age of AI
By Publisher
The creative promise of generative artificial intelligence (“GenAI or “AI”) is tremendous. Irrespective of artistic talent, any user can enter a text prompt into an AI tool and generate a new visual or audio work. Such AI tools also allow…
Lack of FDA Approval for Uncle Bud Means No Bona Fide Intent to Use Medical CBD Goods in Legal Commerce
By Publisher
The Trademark Trial and Appeal Board affirmed the Trademark Office’s refusal of CBH International LLC’s application to register the composite word-and-design mark depicted above for CBD-based transdermal patches. Although CBH argued that its goods could be sold legally without going…
A Tale of Widows and (Sparkling) Wine: TTAB Cancels VEUVE OLIVIER Registration for Likelihood of Confusion with VEUVE CLICQUOT
By Publisher
MHCS brought an action at the Trademark Trial and Appeal Board (TTAB) seeking to cancel Les Grand Chais de France’s registered mark VEUVE OLIVIER for “sparkling wines,” arguing that it creates a likelihood of confusion with, and dilutes, MHCS’s VEUVE…
Fifth Circuit Finds Speculation and Clichés Not Enough to Make Musician Plaintiff a Copyright Rockstar
By Publisher
Affirming the district court’s award of summary judgment for the band Nickelback, the Fifth Circuit found a copyright plaintiff’s circumstantial evidence insufficient to support a finding that Nickelback had actually copied his work.Read more
Winning the Battle but Not the War: Disclaimer Requirement Overturned, Section 2(d) Objection Upheld
By Publisher
Happs Place Barn and Grill is a local institution in Glenville, North Carolina. Honoring the town’s long history, the owners, Ol Happ’s Place Restaurant, LLC, resurrected an old, shuttered restaurant and crafted a new modern building from the bones of…
The Federal Circuit’s Heartfelt Affirmation of Everybody’s Right to Use “Everybody vs. Racism”
By Publisher
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…
Jury Rules that Kat von D’s Miles Davis Tattoo Did Not Infringe
By Publisher
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
By Publisher
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…