by A copyright is a form of protection afforded to owners of “original works of authorship” for the owner’s literary, musical, artistic and other works. Owners of copyrights have a number of exclusive rights, including the right to reproduce the copyrighted work in copies, to prepare derivative works based upon the work, and to distribute copies of the work to the public by sale or other transfer of ownership. One who uses another’s copyrighted material without permission from the copyright owner may be liable for copyright infringement, unless that person can demonstrate that the use was “fair use,” which is an affirmative defense to copyright infringement. Continue Reading “Fair Use”: An Affirmative Defense to “Copyright Infringement”
Jurisdiction in Declaratory Judgment Actions – Federal Circuit Resolves Open Question
by In ABB Inc. v. Cooper Industries, LLC, 97 U.S.P.Q. 2d 1885 (Fed. Cir. 2011), the Federal Circuit resolved an open question concerning subject matter jurisdiction of declaratory judgment actions based on patent infringement.
Cooper Industries owned several patents covering electrical equipment containing dielectric fluid. ABB manufactured a type of dielectric fluid called “Biotemp.” Cooper sued ABB for patent infringement. Cooper and ABB later settled the case, and Cooper granted ABB a non-exclusive license to make, have made, sell, or import the Biotemp product. The license stated that it did not include any rights of third parties to make the Biotemp product. In the license, ABB admitted that Cooper’s patents were valid and that the claims of the patents covered the Biotemp product. Continue Reading Jurisdiction in Declaratory Judgment Actions – Federal Circuit Resolves Open Question
Ninth Circuit Clarifies Position on Keyword Advertising Liability
By Scott Hervey
Early this year, the Ninth Circuit issued its opinion in Network Automation v. Advanced Systems Concepts and clarified that the use of another’s trademark as a search engine keyword to trigger one’s own product advertisement is “use in commerce” and may violate the Lanham Act. Prior to its decision in this case, the Ninth Circuit assumed without expressly deciding that the use of a trademark as a search engine keyword that triggers the display of a competitor’s advertisement is a “use in commerce.” For a time, it wasn’t always so clear that such use was an improper attempt to profit from the good will of another’s trademarks; certain jurisdictions held that such use was not commercial (trademark) “use” and therefore no infringement.Continue Reading Ninth Circuit Clarifies Position on Keyword Advertising Liability
Betty Boop and Chain of Title Issues
On February 23, 2011, the Ninth Circuit issued its opinion in a case involving the Betty Boop cartoon character titled: Fleischer Studios, Inc. v. A.V.E.L.A., Inc., et al. In that case, heirs of the creator of the Betty Boop cartoon claimed that defendants, which were marketing products with Betty Boop’s image, were liable for copyright infringement. (The case also involved claims of trademark infringement which will not be discussed in this article.)Continue Reading Betty Boop and Chain of Title Issues
Trademark Landmines
By Matt Massari
Trademarks and their accompanying goodwill are of tremendous importance to any company and are often a business’ most valuable asset. Some business owners, in a rush to form a company or get their products to market, devise names in a hurry and do not clear them for trademark purposes. Conducting trademark due diligence and analyzing the potential legal risks for a given mark in advance may save a business from future surprise via a cease and desist letter or infringement lawsuit. Continue Reading Trademark Landmines