by The United States Court of Appeals for the Second Circuit issued an opinion on April 1, 2010 that provides a compass for companies like eBay to navigate the murky waters of trademark infringement in the e-commerce marketplace. Tiffany & Co. v. eBay Inc., No. 08- 3947 (2d Cir. April 1, 2010)
Is “ML” Confusingly Similar To “ML”?
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Mighty Leaf Tea sought to register the mark “ML” in standard character form to market, not tea, but rather personal care products and skin care products, including skin soap, body wash, foam bath, body lotion, body scrub, bath salts, massage oils, potpourri, and incense. It filed its application with the United States Patent and Trademark Office on July 2, 2007, claiming first use in November of 2004. The USPTO denied the application, however, because it found a likelihood of confusion with the mark “ML MARK LEES,” which had previously been registered for “skin care products, namely skin cleanser, skin toner, skin cream, skin lotion, skin mask gel, make-up foundation, powder and blush.”
Patent Exhaustion Clarified
By The “first sale” or “patent exhaustion” doctrine provides that the first unrestricted sale by a patent owner of a patented product exhausts the patent owner’s control over that particular item. The doctrine is also analyzed as an implied license to the purchaser of a particular product of the rights to use and resell the product. Stated another way, the initial authorized sale of a patented item terminates the patent owner’s rights with respect to that item.
Transfers of Information From The EU to the USA Must Comply with Enhanced Data Protection Protocols
By Scott Hervey
In October, 1998 the EU enacted the European Commission’s Directive on Data Protection (“Directive”) which, among other things, established a comprehensive approach to the protection of various forms of data, and prohibits the transfer of an individual’s personal data to non-EU nations that fail to meet the EU’s “adequacy” standard for privacy protection. The U.S is one such nation.
Establishing Trademark Rights Before Using Your Mark In Commerce
by United States trademark law provides for the filing of trademark applications to protect (or reserve) trademarks which are not yet actually in use in commerce. The law will allow for filing of a trademark application, with the benefit of constructive use and priority, based upon the
Applicant’s “bona fide intent to use” a mark. The question then becomes what constitutes “bona fide intent to use a mark?”
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