Most people think of trademarks as words or logos. But trademark protection can be far more expansive. For instance, when one business copies another’s distinctive interior design, the injured party can seek relief by claiming trade dress infringement. That’s exactly
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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Ninth Circuit Weighs in on Willful Blindness and the Knowledge Needed for Contributory Trademark Infringement
By Publisher
Contributory liability is important for brand owners to consider when seeking to enforce their trademarks online, especially when dealing with online marketplaces. The Ninth Circuit is the most recent circuit court to weigh in on the correct standard for evaluating…
D.C. Circuit Finds Copyright Office Did Not Abuse Its Discretion: GenAI Art Lacking Human Authorship Is Not Registrable
By Publisher
Figure 1: The Work titled “A Recent Entrance to Paradise,” created autonomously by the “Creativity Machine.”Read more
Procedural Mischief and Intentional Copying Lead to Summary Judgment in Trademark Battle Between Social Clubs
By Publisher
A defendant opposing a motion for summary judgment in a trademark case often repeats the refrain that issues of likelihood of confusion and dilution are riddled with issues of fact reserved for a jury. But in this “exceptional” trademark case…
7th Circuit Remands Case (Again) to Apply Independent Economic Value Test to Individual Images in Copyrighted Compilations
By Publisher
Exhibit Q to the Complaint, Sullivan v. Flora, Inc., No. 15-cv-00298 (W.D. Wisc. 2015), ECF No. 1-17.Read more
LEGO Piece Might Infringe Jacket Designer’s Copyright and Trade Dress
By Publisher
We previously discussed an amended complaint filed by artist James Concannon against LEGO alleging copyright and trade dress infringement. Concannon alleged he created a custom leather jacket as a gift for Antoni Porowski, star of Netflix’s Queer Eye series, and…
Embedding and the “Server Test” Survive in the Ninth Circuit…For Now
By Publisher
The Ninth Circuit has ruled that its “server test” allows for copyrighted content to be embedded on another’s website without violating U.S. copyright law, the copyright owner’s public display right in particular. 17 U.S.C. § 106(5). Why? Because embedding does…
Court Downs Comparative Advertising and Copyright Claim, Follows with a Made in USA Chaser
By Publisher
Can one company use another’s copyrighted images in its advertisements to contrast where the two companies’ products are manufactured? And if this is generally but not always allowed, when is it okay? Also, can a company say that its product…
Endorsement Guides and Fake Reviews: What Advertisers and Influencers Need to Know About the FTC’s Recent Announcements
By Publisher
The Federal Trade Commission recently announced long-awaited updates to its Endorsement Guides (”Guides”), along with a new proposed rule banning fake reviews and testimonials. The Guides provide direction to advertisers to ensure that advertising using endorsements or reviews is truthful…
Big Fish on the Hook for A&E’s Live PD Copyright and Trademark Claims
By Publisher
On this week’s episode, we have the plaintiff A&E Television Networks, LLC (“A&E”) facing defendants Big Fish Entertainment, LLC (“Big Fish”), Half Moon Pictures, LLC, and REELZCHANNEL, LLC in a dispute over the alleged infringement of A&E’s copyright and trademark…