Section 230 of the 1996 Communications Decency Act, a statute passed when the Internet was in its relative infancy, gives broad immunity to online platforms, generally protecting them from lawsuits stemming from third-party postings—but with a notable exception. Section 230
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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Fifth Circuit Upholds “Discovery Rule” in Affirming Victory for Photographer in Copyright Suit
By Publisher
Under the Copyright Act of 1976, a civil action for copyright infringement must be “commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). But when does a claim accrue? To answer that question, the Fifth Circuit applied what…
Software Unfiltered: The Shifting Burdens in Computer Software Copyrightability
By Publisher
The Federal Circuit weighed in on the test, and burdens, for showing copyrightability of “nonliteral elements” of computer software in its SAS Inst. v. World Programming Ltd decision.[1] The Court affirmed a lower court ruling that SAS failed to…
Yuga Not Bored by Summary Judgment Victory Against Derivative NFT Collection
By Publisher
In the latest court decision to grapple with the scope of trademark rights in the metaverse, the Central District of California handed a significant win to Yuga Labs, creator of a collection of 10,000 NFTs (non-fungible tokens) marketed under the…
Next Time, Take a Selfie: Case Dismissed for Lack of Copyright Ownership
By Publisher
Joint authorship of a copyright can be a challenging issue for courts to grapple with. If you ask a bystander to take a picture of you using your camera, and that person hands you back the camera before going on…
SCOTUS Trademark Twofer: The Lanham Act’s Territorial Reach and the Parody Defense
The Supreme Court continues to show its interest in intellectual property matters, hearing oral arguments in two separate trademark cases this term. In Abitron Austria GmbH v. Hetronic International, Inc., the Court is tasked with determining the extraterritorial reach of…
TTAB Denies Collective Membership Mark Admission to the Registration Club
By Publisher
Unlike traditional trademarks or services marks, collective membership marks do not indicate the source or origin of specific goods and/or services. See 15 U.S.C. §§1054, 1127. Rather, as the name suggests, they are used by members of an organization to…
ase Study: Zarya of the Dawn—When Human Authorship Exists in AI Generated Works (and When It Doesn’t)
By Publisher
On March 16, 2023, the U.S. Copyright Office issued guidance on how it considers applications for works containing expressive material generated by artificial intelligence (AI).Read more
Widening Circuit Split, Eleventh Circuit Decides Retroactive Damages Are Recoverable for Timely Copyright Claims
By Publisher
The U.S. Court of Appeals for the Eleventh Circuit widened a circuit split regarding whether a plaintiff may obtain damages for copyright infringement occurring more than three years before filing suit pursuant to the three-year statute of limitations under the…
Carl Sagan Estate Pleads Sufficient Evidence of Fame to Survive Motion to Dismiss
By Yinfei Wu
Carl Sagan is known for, among other things, the neologism “extraordinary claims require extraordinary evidence.” Courts considering allegations of trademark dilution would likely agree. To prove fame sufficient to support a claim of trademark dilution brand owners are generally called…