Trademark Law

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By Scott Hervey

Those in the wine industry regularly traverse a vast array of statutes, rules and regulations in an effort to get their grape from the vine into your glass. One set of regulations all wine producers deal with are those governing wine labeling. The federal government, which regulates wine labels through the Alcohol and Tobacco Tax and Trade Bureau (the TTB), imposes rules which state what must and what may not be included on a wine label. A winery or wine producer must obtain federal approval of each wine label before bottling wine in the United States. In addition to federal approval, some states have their own wine label approval process wine producers and or distributors must go through prior to a wine being sold within that state. Most of the time the federal and state wine label approval process is straight forward. However, every so often a situation arises which shows the process can be complex and subjective.

 Continue Reading Wine’s “Full Bodied” Label Not To State Regulator’s Liking

by Dale C. Campbell

 

Section 43(a) the Lanham Act provides for liability related to unregistered marks. Section 43(a) provides for civil liability for any person who, IN connection with any goods or service uses in commerce any word, term, name, symbol or any combination thereof, or any false designation origin, false or misleading description of fact or false or misleading misrepresentation of which (a) is likely to cause confusion as to the origin, sponsorship or approval of the goods or services by another person or (b) in commercial advertising or promotion misrepresents the nature, character qualities or origin of his or her good, service or commercial activity. Subsection (a) is commonly known as the false origin claim and subsection (b) is commonly known as false advertising claim. In short, one can’t be liable for claims of false origin even if the statements are not made in the course of commercial advertising or promotion as required in subsection (b).Continue Reading LANHAM ACT DAMAGES – What Is the Plaintiff’s Burden?

by Scott Hervey

It’s been five years since the Trademark Trial and Appeal Board dramatically changed the way Untied States trademark registrations are handled. The case of Medinol Ltd. v. Neuro Vasx, Inc. reflected an analytical shift in the way in which the Trademark Trial and Appeal Board (TTAB) determines whether an applicant committed fraud on the trademark office. The holding also provided those seeking to cancel a trademark registration with a powerful weapon, and created substantial risk for trademark applicants and registrants who overstate the goods or services in their application. The facts of Medinol Ltd. v. Neuro Vasx, Inc. are as follows:Continue Reading An “F-word” Trademark Owners Should Avoid

by Jeff Pietsch

Earlier this month, the Tenth Circuit court upheld a preliminary injunction granted in favor of a manufacturer of electronics equipment against a reseller of its goods in a trademark infringement action. (Beltronics v. Midwest Inventory Distribution (10th Cir. April 9, 2009)). The reseller argued that it was able to resell the manufacturer’s goods online based on the first sale doctrine. The court, however, disagreed with this assessment and ruled that the resellers violated the manufacturer’s trademark rights because Midwest’s actions caused consumer confusion.

Continue Reading When Product Resales Constitute Trademark Infringement

By Zachary Wadlé

The widely popular Guitar Hero videogame series created by Activision Publishing, Inc. allows players to emulate their favorite rock guitarists, without requiring any actual guitar playing skill. However, this virtual reality was endangered last year by a threatened patent infringement lawsuit by guitar company, Gibson, longtime maker of iconic rock guitars such as the Gibson “Les Paul,” “SG,” “ES-335,” and “Flying V,” to name a few.

 In January 2008, Gibson sent a letter to Activision, claiming that Guitar Hero infringed upon Gibson’s registered U.S. Patent No. 5,990,405 (the “‘405 Patent”). This patent covered "a system and method for generating and controlling a simulated musical concert experience." Gibson claimed that the Guitar Hero game controllers – miniature plastic replicas of Gibson guitars with no strings, and four buttons on the fret-board – infringed upon Gibson’s patent and required Activision to obtain a license from Gibson, or else halt sales of any version of the Guitar Hero game and controllers.    Continue Reading Keep On Rockin’ In The Virtual World–Guitar Hero Videogame Does Not Infringe Gibson Guitar’s Patent