In the past few years there has been a number of libel claims based on an unfavorable portrayal of a real person in either a television program or motion picture that is based on real life events. To name a few, there is the currently pending Mossack Fonseca & Co., S.A. et al v. Netflix… Continue Reading
Category Archives: IP
Subscribe to IP RSS FeedTrademark Protection for Your Brand Merchandise in the Age of Copycats, Counterfeits, and Fakes
Posted in IP, Trademark LawWith live events cancelled during the pandemic, content creators are increasingly dependent on merchandise sales. Creators from podcasters to YouTubers to musicians are reliant on merch to bolster their revenue and their brands. Subscribers stuck at home are watching more video and listening to more podcasts and music. Apart from advertising and sponsorships, merch is… Continue Reading
No Right to Appeal Even When IPR Institution Denied on Non-Substantive Grounds
Posted in IP, Patent LawOne way to challenge the validity of a patent at the United States Patent and Trademark Office (“USPTO”) is through a petition for inter partes review (“IPR”). The USPTO Director has delegated responsibility to the Patent Trial and Appeal Board (“PTAB”) to evaluate such petitions to determine whether to institute review of the challenged patent. … Continue Reading
Trade Secrets and the Duty to Identify Them with Sufficient Particularity
Posted in IP, Trade SecretsOne of the first elements that a plaintiff must prove to succeed on a trade secret claim is that it is the owner of a valid trade secret. To do so, the law generally imposes a burden on plaintiffs to identify its trade secrets with sufficient particularity in order to succeed. As the Ninth Circuit… Continue Reading
District Court Finds Documents Related to Litigation Funding Protected by Work Product Doctrine
Posted in Intellectual Property Litigation, IP, Patent LawIn Impact Engine, Inc. v. Google LLC, 3-19-cv-01301 (SDCA 2020-10-20, Order) (Cathy Ann Bencivengo), the District Court for the Southern District of California recently considered whether litigation funding documents could be withheld from production by plaintiff Impact Engine because the documents were work product protected. In the case, defendant Google had propounded a request on… Continue Reading
PTAB May Decide Patentability Under Section 101 in Inter Partes Reviews
Posted in IP, Patent LawAn inter partes review (IPR) is a procedure to challenge a patent in the U.S. Patent and Trademark Office (PTO). The IPR procedure was established by the American Invents Act, and was intended to be an improvement on the existing inter partes reexamination procedure. An IPR is brought before the PTO’s Patent Trial and Appeal… Continue Reading
Dogs, Whiskey, and Intellectual Property: Need I Say More?
Posted in Intellectual Property Litigation, IP, Trademark LawJack Daniel’s Properties, Inc. has petitioned the Supreme Court of the United States for certiorari following an unfavorable ruling from the Ninth Circuit in the matter of VIP Products LLC v. Jack Daniel’s Properties, Inc. In that case, VIP Products sued Jack Daniel’s after receiving a cease-and-desist letter concerning its Bad Spaniels Silly Squeaker dog… Continue Reading
Empire Copyright Litigation
Posted in Copyright Law, Entertainment Law, IPWeintraub Tobin IP attorneys Scott Hervey and Josh Escovedo discuss the copyright dispute over the TV show “Empire,” Jon Astor-White v. Daniel Strong.
9th Circuit Provides Clear Copyright Guidance for Producers of Bio Pics
Posted in Copyright Law, IPIn this episode of The Briefing by the IP Law Blog, Weintraub Tobin attorneys Scott Hervey and Josh Escovedo discuss copyright litigation around the “Jersey Boys” — a musical and movie about The Four Seasons– involving an unpublished biography by one of the band members. The Intellectual Property Law Blog provides insight in connection with… Continue Reading
The Courts Step in to Protect TikTok from the Trump Administration
Posted in IPIn a dramatic Sunday morning hearing (conducted remotely via telephone), lawyers for TikTok and the Trump Administration battled over whether the government’s order banning TikTok from the Apple and Google app stores would take effect that night. The Trump Administration has argued for months that TikTok is a threat to national security because its corporate… Continue Reading
Football, Beer, and Court Fights
Posted in Entertainment Law, IPWhen it comes to football, I am a huge fan and love watching games on TV. However, I do not typically pay attention to the commercials during games, with one major exception: the Super Bowl. Like most everyone, I am always curious to see which company will have the best and the worst Super Bowl… Continue Reading
No Judicial Estoppel in the Case of the On-Again, Off-Again Patent Inventor
Posted in IP, Patent LawThe case of Egenera, Inc. v. Cisco Systems, Inc. raised the question of whether inventors named on a patent can be repeatedly changed as litigation strategy changes. Because of judicial estoppel, the district court said no way. But, on appeal, the Court of Appeals for the Federal Circuit said no problem—at least no problem in… Continue Reading
New Fast Track for Patent Appeals
Posted in IP, Patent LawA new temporary pilot program in the US PTO will speed up appeals in patent applications before the Patent Trial and Appeal Board (PTAB). The program, which went into effect on July 2, 2020, is called the “Fast Track Appeals Pilot Program.” The program is limited to 125 appeals per quarter. The PTO instituted the… Continue Reading
District Court Applies Different Requirement for Similarity of Accused and Asserted Works Under DMCA Versus the Copyright Act
Posted in Copyright Law, IPIn Kirk Kara Corp. v. Western Stone & Metal Corp. et al, 2-20-cv-01931 (CDCA 2020-08-14, Order) (Dolly M. Gee), the Central District of California denied Defendant’s motion to dismiss Plaintiff’s claims for copyright infringement, finding sufficient substantial similarity between the copyrighted works and the accused works had been alleged. However, the Court granted Defendant’s motion… Continue Reading
The Second Circuit Vacates Tiffany & Co.’s $21 Million Judgment for Trademark Infringement and Counterfeiting Against Costco
Posted in IP, Trademark LawAlmost five years ago, I wrote an article published in the Daily Recorder about a ruling in the Tiffany & Co. v. Costco Wholesale Corporation case filed in the United States District Court for the Southern District of New York. Specifically, I wrote about the Court granting Tiffany’s motion for summary judgment on liability, permitting… Continue Reading
Second Circuit Frames Novel Issue of Photographer’s Claim of Copyright Infringement and DMCA Violation
Posted in Copyright Law, IPThe facts in Mango v. BuzzFeed are fairly straight forward. Mango is a freelance photographer who licensed a photograph to the New York Post. The Post included the photo in a story and below the photo included Mango’s name – an attribution known in the publishing industry as a “gutter credit”. Three months after the… Continue Reading
The Rule of Reasonableness: Non-Compete Provisions in California Business Contracts
Posted in IPThe California Supreme Court in the 2008 case, Edwards v. Arthur Andersen LLP, ruled that a provision in an employment agreement that prevented an employee from competing with his former employer following the termination of his employment was an invalid restraint on trade in violation of section 16600 of the California Business and Professions Code. … Continue Reading
Sushi Restaurants Battle for Control Over Hand Roll Trademark
Posted in IP, Trademark LawSushi Nozawa, LLC, owner of the popular sushi destination Sugarfish, is challenging the HRB Experience LLC over use of the term “Hand Roll Bar.” IP Attorneys Scott Hervey and Josh Escovedo discuss the lawsuit, including descriptive versus generic terms, secondary meaning, and the potential strategies of the parties.
You Must Prove Actual Damages if You Want Punitive Damages in an Infringement Action
Posted in IP, Trademark LawImagine litigating an infringement case for two years, and after a nine day jury trial, obtaining a jury’s verdict that says you’ve established infringement and awards your client $5,000,000. Then you realize that the jury has awarded your client $0 in actual damages, and the entire $5,000,000 sum is for punitive damages. The Ninth Circuit… Continue Reading
Make Sure You Follow the Patent Local Rules!
Posted in IP, Patent LawAn unpublished decision from the Northern District of California emphasizes how important it is for attorneys to follow patent local rules. Patent local rules are rules that many federal district courts have for patent infringement cases. These rules supplement the regular local rules for that court and the Federal Rules of Civil Procedure, and allow… Continue Reading
Irreparable Harm for Permanent Injunction Supported by Lost Profits Award
Posted in IP, Patent LawIn f’real Foods, LLC et al v. Hamilton Beach Brands, Inc. et al, 1-16-cv-00041 (DDE 2020-07-16, Order) (Colm F. Connolly), plaintiffs freal Foods, LLC and Rich Products Corporation sued defendants Hamilton Beach Brands, Inc. and Hershey Creamery Company for infringement of four patents on four accused products that are high performance blenders manufactured by Hamilton… Continue Reading
After Nearly 30 Years of Controversy, the Washington Redskins Will Retire the Redskins Team Name and Trademark
Posted in IP, Trademark LawWatch: Author Josh Escovedo and trademark law professor Alexandra Roberts delve into the issues around the Redskins name change. On Monday, July 13, 2020, the ownership group of the Washington Redskins (the “Team”) announced that it will abandon the Redskins team name after nearly 30 years of controversy. The decision, despite what the Team says,… Continue Reading
The “Wolf of Wall Street” Defamation Suit – The Risk of an “Inspired By” Character in Movies and TV
Posted in Entertainment Law, IPThe motion picture Wolf of Wall Street was based on a book of the same title written by Jordan Belmont. In the book, Andrew Greene, who was director, general counsel, and head of the corporate finance department at Stratton Oakmont between 1993 and 1996, was discussed extensively. In the book, Greene is referred to by… Continue Reading
The PTAB Requires Settlement and Collateral Agreements to Terminate IPRs
Posted in IP, Patent LawFollowing the America Invents Act, a petition for inter partes review (“IPR”) has become a common method for challenging the validity of a patent before the Patent Trial and Appeal Board (“PTAB”) at the United States Patent and Trademark Office (“USPTO”). Such challenges are often brought by petitioners in response to a patent owner suing… Continue Reading
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