With 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 the only way for creators to monetize their increased profile during the pandemic.

However, 2020 has seen an explosion of counterfeit products including branded merchandise by content creators.  An analysis from the New York Times in February 2020 found that the sale of counterfeit items represents more than 3 percent of global trade, corresponding to $1.4 billion in value in the U.S. alone.  Reviews on Amazon containing words like “fake” and “counterfeit” have doubled since 2015.
Continue Reading Trademark Protection for Your Brand Merchandise in the Age of Copycats, Counterfeits, and Fakes

Patents covering software for use in the financial industryAudrey-Millemann-03_web are increasingly being invalidated by the courts. Because of the Supreme Court’s decision in Alice Corp. v. CLS Bank International, 134 S. Ct. 2347 (2014), district courts are holding these patents invalid on the grounds that they are unpatentable abstract ideas, and the Federal Circuit Court of Appeals is affirming the district courts’ decisions.

Patents may cover one of four statutory categories of inventions: (1) machines; (2) articles of manufacture; (3) processes; and (4) compositions of matter. 35.U.S.C. §101. These types of inventions are called “patent-eligible subject matter.” The longstanding exceptions to these four categories are: natural phenomena, laws of nature, and abstract ideas. These types of inventions are called “patent-ineligible subject matter.”

In Alice Corp., the Supreme Court established a two-part test to determine the patentability of claims directed to patent-ineligible subject matter. The first step is to decide whether the claims in the patent are directed to patent ineligible subject matter, such as an abstract idea. If so, the second step is to determine whether the elements of the claim transform the abstract idea into a patent-eligible application.

Two recent cases illustrate the trend. In both cases, the claims covered software for use in the financial industry, as was true of the claims invalidated in Alice Corp.

Continue Reading Federal Circuit Continues to Nix Financial Patents