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
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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E.D. Pa. Delivers Summary Judgment Victory in Row Over Meta Tags
By Publisher
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
By Publisher
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
By Publisher
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
By Publisher
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
By Publisher
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
By Publisher
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…
5-Hour Energy Feeling Recharged After Competitor’s False Advertising Claim Dismissed
By Publisher
Companies spend an immense amount of time on advertising and sending out messages to consumers. Competitors often do not like or agree with those messages. But can competitors turn that dislike into a claim for false advertising under the Lanham…
Ninth Circuit Waltzes with Choreographic Works
By Publisher
The 1976 Copyright Act significantly expanded intellectual property protection for dance by recognizing “choreographic works” as original works of authorship eligible for copyright protection. (Before the 1976 Act, narrative dance could be protected as a dramatic work, but abstract dance…
Judge Tells Jade Singer to “Walk Away” from Federal Trademark Suit
By Publisher
Co-ownership of trademarks is rare. Some courts have even gone so far to say co-ownership is disfavored. But co-ownership disputes do occasionally reach the courts, most recently in Reed v. Marshall, which involved band members arguing over the use of…