Certain literary or graphic characters may, in some cases, enjoy copyright protection. Think James Bond – or Batman and even his Batmobile. Recently, the Ninth Circuit was called upon to determine whether the Moodsters, “anthropomorphized characters representing human emotions,” are subject to the same copyright protection as Batman. Sadly, the Ninth Circuit concluded they do… Continue Reading
Category Archives: IP
Subscribe to IP RSS FeedNo, Machines Cannot Be Inventors!
Posted in IP, Patent LawEventually, it was bound to happen. A patent application was filed by a machine. Well, not exactly. A human being filed a patent application naming a machine as the inventor. The machine was an artificial intelligence machine described as a “creativity machine.” Its name was listed as “DABUS Invention Generated by Artificial Intelligence.” The invention… Continue Reading
The Ninth Circuit Affirms Ruling that COMIC-CON isn’t Generic for Comic Conventions
Posted in IP, Trademark LawThe battle started almost six years ago. A Utah-based company known as Dan Farr Productions (“DFP”) decided to use San Diego Comic Convention’s (“SDCC”) registered trademark COMIC-CON in conjunction with its own comic and popular arts convention, resulting in SDCC filing suit in the Southern District of California. SDCC alleged in its complaint that it… Continue Reading
SCOTUS Considers Whether Adding a Top-Level Domain Makes a Generic Term a Protectable Trademark
Posted in IP, Trademark LawOn Monday, May 4, 2020, the Supreme Court of the United States heard oral argument in United States Patent and Trademark Office v. Booking.com, B.V. For the first time in the history of the Court, the argument was live streamed via multiple outlets, including CNN, enabling us trademark junkies to listen to the argument in… Continue Reading
Trademark Infringers Beware – Willfulness Not Required for Disgorgement
Posted in IP, Trademark LawFor some time there has been a split among the Federal circuits as to whether evidence of willfulness is required in order to award disgorgement of profits for trademark infringement under Section 1125(a) of the Lanham Act. The split stems from how each Federal circuit interprets Section 1117(a) of the Lanham Act which was amended… Continue Reading
Supreme Court Limits Appeals to Prevent More Bad Patents
Posted in IP, Patent LawA party accused of infringing a patent may challenge the validity of the patent in the federal court infringement litigation or in separate administrative proceedings in the Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB). One of the methods available in the PTAB is an inter partes review (IPR), which was created by… Continue Reading
Burbank High School Jumps with Glee over Copyright Victory
Posted in Copyright Law, IPBurbank High School runs a music program that reportedly provided the inspiration for the hit TV show, Glee. It is nationally known for the competitive show choirs its students participate in as part of the program. To defray the costs of fielding several choirs, a non-profit booster club was formed to help fundraise for the… Continue Reading
Patent, Trademark, and Copyright Deadlines Extended Due to COVID-19
Posted in Copyright Law, IP, Patent Law, Trademark LawOn March 31, 2020, the U.S. Patent and Trademark Office announced that, pursuant to the Coronavirus Aid, Relief, and Economic Security Act, certain deadlines for patent and trademark applications would be extended. The CARES Act authorizes the PTO to toll, waive, or modify any patent or trademark deadline in effect during the COVID-19 emergency. The… Continue Reading
Federal Circuit: Sequenom’s Fetal DNA Claims Are Patent Eligible
Posted in IP, Patent LawAn unborn baby’s DNA (“fetal DNA”) can be used to determine the sex of the baby as well as to test for conditions such as Down’s syndrome. In the past, procedures to get samples of fetal DNA for testing involved sticking a large needle through the abdominal wall and into the uterus of the mother… Continue Reading
SCOTUS Rules That North Carolina is Protected from Copyright Infringement Claims by Sovereign Immunity
Posted in Copyright Law, IPThe Supreme Court of the United States has held that the state government is free to infringe copyrights without fear of retribution. In Allen v. Cooper, the Supreme Court decided whether the state of North Carolina could be held liable under the Copyright Act for infringing filmmaker Frederick Allen’s copyright relating to Queen Anne’s Revenge…. Continue Reading
Stay Away; No Trademark for Social Distancing and other Informational Terms
Posted in IP, Trademark LawCall me a pessimist, but it was surprising to me when I recently checked the USPTO trademark database that I did not find an application to register “Social Distancing” for some other novelty item. (It is also surprising that the tag #socialdistancing has only 159,000 uses on Instagram.) Nevertheless, I am sure some entrepreneurs will… Continue Reading
District Court Stays Discovery Deadlines Because of Coronavirus Threat but Keeps Markman Hearing on Calendar
Posted in IP, Patent LawOn March 6, 2020, a Central District Court in UPL NA Inc. f/k/a United Phosphorous, Inc. v. Tide International (USA), Inc. et al, 8-19-cv-01201 (CDCA 2020-03-06, Order) (Ronald S.W. Lew), issued an order that may become more common place across courts. At the request of the parties, the Court issued a temporary stay of all… Continue Reading
YouTube and the First Amendment
Posted in IPIs the privately-owned YouTube site really a “state actor” subject to judicial scrutiny under the First Amendment? That’s the claim made in a lawsuit by Prager University, which is not really a university. The Ninth Circuit was recently called upon to address PragerU’s claim that the widely popular internet site operated by a private entity… Continue Reading
Google’s Servers Do Not Constitute a Regular and Established Place of Business for Patent Venue
Posted in IP, Patent LawIt has become commonplace for companies such as Google to use local servers to provide faster service to customers. This practice has raised the question as to whether those local servers constitute “a regular and established place of business” for the purposes of establishing venue in patent infringement suits in the districts where the servers… Continue Reading
IPRs Cannot Be Used to Challenge Patents for Indefiniteness
Posted in IP, Patent LawThere are a number of requirements that must be met for an invention to be patentable. The invention must be novel (unique) and nonobvious (i.e., a person skilled in the field of the invention would not have found the invention obvious based on the existing knowledge in the field). In addition, the patent application must… Continue Reading
Lil Nas X Takes His Horse to the Old Town Road and Moves to Dismiss Producers’ Copyright Infringement Action Concerning “Rodeo”
Posted in Copyright Law, IPLil Nas X broke onto the scene in spectacular fashion when he released the viral sensation “Old Town Road,” featuring Billy Ray Cyrus. Old Town Road broke the prior record for most consecutive weeks at No. 1 on the Billboard Hot 100 charts and eventually resulted in Lil Nas X receiving a Grammy award. Unfortunately,… Continue Reading
No Trademark Protection In Book or Movie Titles?!?
Posted in IP, Trademark LawGenerally, the title to a single motion picture is not entitled to trademark protection. This is the same for the title to single books, songs and other singular creative works. Most non-trademark attorneys are surprised when I tell them this. I am sure you may be scratching your head as well. The logic behind the… Continue Reading
Is Your Competitor Objectionable? The Scope of Immunity Under the Communications Decency Act
Posted in IPIn February 1996, faced with increasing public concern about the availability of pornography on the internet, as well as recent court decisions that seem to deter efforts to filter out such content, Congress enacted the Communications Decency Act (“CDA”). As part of the CDA, Congress granted immunity to internet service providers from liability for actions… Continue Reading
Is a Copyright Notice Sufficient Evidence a Textbook Is a Printed Publication for Institution of Inter Partes Review?
Posted in Copyright Law, IP, Patent LawTo use a textbook or other reference to challenge the validity of a patent in a petition for inter partes review (“IPR”), the textbook must have been “publicly accessible” prior to the date of the challenged patent to qualify as a printed publication. Is a copyright notice sufficient evidence that a textbook was publicly accessible?… Continue Reading
Disney Seeks to Stop the Rise of Infringing Baby Yoda Goods on Etsy
Posted in Copyright Law, Entertainment Law, IPWhen Disney chose to delay the production and release of merchandise related to The Child—commonly referred to as Baby Yoda—from its hit series, The Mandalorian, it created a significant opportunity for unlicensed fans to create and sell such merchandise. According to statements released by the Walt Disney Company, it intentionally delayed the production of Baby… Continue Reading
Player/Haters May Be Original Afterall
Posted in Copyright Law, IPIn the early 2000’s, an all-girl band called 3LW performed a song called “Playas Gon’ Play,” which was written by Sean Hall and Nathan Butler. “Playas Gon’ Play” was initially released in May, 2001 and rose to number 81 on the Billboard’s Hot 100 chart. The album on which “Playas Gon’ Play” appeared sold over… Continue Reading
U.S. Supreme Court Strikes down USPTO’s Request for Attorney’s Fees
Posted in IP, Patent Law, UncategorizedIn a unanimous ruling, the U.S. Supreme Court in Peter v. NantKwest, case number 18-801, struck down the U.S. Patent and Trademark Office’s (USPTO) recent and often-criticized effort to recoup its legal fees – even in cases it loses – because it violates the so-called American Rule, which says U.S. litigants must typically pay for… Continue Reading
Challenging a Trade Secret Injunction? Better Come Loaded For Bear
Posted in Intellectual Property Litigation, IP, Labor & Employment, Trade SecretsOne of the most common forms of relief sought in trade secret litigation is an injunction preventing the defendants from using or disclosing the plaintiff’s trade secret information. Although temporary restraining orders and/or preliminary injunctions may be obtained that are in place during the lawsuit, a permanent injunction is entered after trial and typically has… Continue Reading
Patent Priority Dates Must Be a Priority!
Posted in IP, Patent LawThe priority date of a patent is an important aspect in protecting intellectual property. The priority date is the earliest possible filing date that a patent application is entitled to rely on; it is based on the filing dates of any related patent applications that were filed before the application (the priority chain). This date… Continue Reading
Connect with Weintraub on LinkedIn
Follow Weintraub on Twitter
Like Weintraub on Facebook
Subscribe to this blog via RSS