David Kluft

David Kluft

Foley Hoag LLP

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The Pleads Of The Many: 50 Years of Star Trek Lawsuits

This year marks the fiftieth anniversary of the premiere of the original series of Star Trek, which first aired on NBC in September 1966. On July 22, this milestone will be marked in earnest when Paramount Pictures releases...more

7/19/2016 - Advertising Books CARU Copyright Infringement Copyrights False Advertising Likelihood of Confusion Misbranding Paramount Pictures Popular Public Domain Screenplays Star Trek Television Shows Trademark Infringement Trademark Trial and Appeal Board Trademarks Young Lawyers

The Death Of Alexander Hamilton And The Birth Of The American Free Press

Alexander Hamilton has more to do with American independence than you might think. His efforts as a Founding Father (the hottest Founding Father on Broadway, it should be noted) helped the United States achieve political...more

7/1/2016 - Criminal Prosecution Defamation Defense of Truth Free Speech Journalism Legal History Libel Popular Sedition Young Lawyers

Grapes, Girls and Goddesses: Federal Circuit Affirms MAYARI Trademark Registration For Wine

In our annual Trademark Year in Wine and Beer, we discussed Oakville Hills Cellar v. Georgallis Holdings LLC, in which the application of Georgallis (doing business as Kissos Wines) to register MAYARI for wine was opposed by...more

6/27/2016 - Appeals Evidence Likelihood of Confusion Trademark Registration Trademark Trial and Appeal Board Trademarks Wine & Alcohol

When Is Internet Speech Protected Petitioning Activity? Federal Court Grants Anti-SLAPP Motion In FIRE CIDER Trademark Suit

On May 12, 2016, the District of Massachusetts held that that an online campaign in support of the cancellation of a registered trademark (FIRE CIDER) was protected petitioning activity, even though the campaign was organized...more

5/31/2016 - Anti-SLAPP Attorney's Fees Defamation First Amendment Internet Speech Trademark Infringement Trademark Registration Trademarks

First Circuit Affirms FTC Social Media Order: Jerk.com users Jerked Around By Material Misrepresentations

In Fanning v. Federal Trade Commission, the First Circuit affirmed a summary decision of the Federal Trade Commission (FTC), which found that Jerk LLC, the operator of Jerk.com, materially misrepresented both the source of...more

5/23/2016 - Cease and Desist First Amendment FTC FTC Act Jerk Material Misrepresentation Napster Social Media Unfair or Deceptive Trade Practices Young Lawyers

Alcohol Trademarks of the 1800’s: California Uncorks the Past

For the last two years, we have published the Trademark Year in Wine and Beer, a catalogue of each year’s trademark disputes in the alcoholic beverage industry. That is why we were extra excited on April 21, 2016 when the...more

5/9/2016 - Beer Breweries Trademarks Wine & Alcohol Wineries Young Lawyers

Shakespeare and Copyright: 5 Things You Should Know

Last year, I made a terrible mistake. When I published Harry Potter Lawsuits and Where to Find Them on this blog, I pronounced that “Ms. Rowling and her works pop up in court more than any author since Charles Dickens.” I...more

4/12/2016 - Copyright Copyright Infringement Movies Popular Publishers Writers Young Lawyers

The First Circuit’s “Scungy” Backpage: Copyright And Right Of Publicity Claims Ineffective Against Sex Trafficking

In Doe v. Backpage.com, the First Circuit affirmed the District of Massachusetts in holding that Section 230 of the Communications Decency Act (CDA) shields from civil liability a website used by third parties to facilitate...more

4/4/2016 - Advertising Backpage.com Communications Decency Act Copyright Infringement Photographs Section 230 Sex Trafficking Trafficking Victims Protection Act of 2000 Websites Young Lawyers

Skippy Still Hates Peanut Butter: TTAB Denies Petition To Cancel 1947 Trademark Registration . . . Again

Two years ago in March, in honor of National Peanut Month, we recounted the truly epic struggle for the SKIPPY mark between the once-iconic cartoon character and the still-iconic peanut butter brand. The story began nearly 90...more

3/21/2016 - Cartoons Corporate Branding Corporate Counsel Fraud Trademark Infringement Trademark Trial and Appeal Board Trademarks Young Lawyers

Trademark and Copyright Law News - March 2016

This edition of Trademark and Copyright Law News is all about big ticket entertainment, sports and fashion events. We've kept busy this winter tracking the intellectual property disputes related to the Oscars, Super Bowl,...more

3/7/2016 - Academy Awards Copyright DMCA Fashion Branding Fashion Design Intellectual Property Protection NFL Sports Star Wars Trademark Infringement Trademarks

Justice Scalia on Trademark and Copyright: Dastar, Penguin-Shaped Cocktail Shakers and “Guilt by Resemblance”

When we decided to mark the passing of Justice Antonin Scalia by recounting a few of his copyright and trademark opinions, we were somewhat surprised to discover that there really hadn’t been that many. In fact, we located...more

2/22/2016 - Antonin Scalia Copyright Copyright Infringement Corporate Counsel False Advertising Gray Market Goods Jury Trial Justice Scalia Lanham Act Seventh Amendment Tariff Act of 1930 Television Broadcast Stations The Copyright Act Trademarks Young Lawyers

Why President Lincoln Put the Civil War on Hold to Extend Copyright Protection to Photographs

We’ve taken advantage of past Presidents Days to recount George Washington’s role in the history of U.S. Copyright law, specifically the birth of fair use. That role was not insubstantial, but it was posthumous and,...more

2/15/2016 - Abraham Lincoln Copyright Intellectual Property Protection Journalism Photographs Political Campaigns Popular Young Lawyers

Sue-per Bowl Shuffle II: The Year in NFL-Related Intellectual Property Litigation

Around this time last year, I started worrying about what would happen if someone at a Super Bowl party asked me to explain an NFL-related lawsuit, particularly one of those IP-ish lawsuits that I’m supposed to know about. So...more

2/2/2016 - Corporate Counsel Design Patent Excessive Force First Amendment Intellectual Property Protection NFL Popular Redskins Right of Publicity Super Bowl The Copyright Act Trademark Litigation Young Lawyers

Star Wars Copyright and Trademark Litigation: The Empire Sues Back

Haven’t seen the new Star Wars movie yet? The pop culture zeitgeist recommends that you binge-watch all six of the prior Star Wars movies before going to see Episode VII, The Force Awakens and, according to the Washington...more

1/12/2016 - Copyright Infringement Likelihood of Confusion Popular Star Wars Trademark Infringement Young Lawyers

The Twelve Res of Christmas: Yule-Themed IP Matters in 2015

It is often said Christmas is creeping ever-backwards, each year striving to begin its domination of our collective consciousness and consumer dollars at an earlier date. In the realm of litigation, Christmas creep manifests...more

12/15/2015 - Copyright Copyright Infringement Domain Names False Advertising Patents Trademark Infringement

A Trademark Year in Wine and Beer 2015: Our Holiday Buyer’s Guide to Disputed Beverages

Just in time for the holiday season, we present our second annual Trademark Year in Wine and Beer. Whether you are planning a holiday party or just having some friends over, you are probably in the market for some liquid...more

12/1/2015 - Beer False Advertising Popular Trademark Litigation Trademark Trial and Appeal Board UDRP Wine & Alcohol Young Lawyers

The Genericide of the Turkey Stick: Another Thanksgiving Trademark Tale

For the past few years, the Trademark and Copyright Law Blog has marked Thanksgiving with a note about the history of turkey trademarks. Last year, we discussed the ownership of GOBBLE GOBBLE, and before that we told you why...more

11/24/2015 - Genericide Trademark Infringement Trademark Opposition Proceedings Trademark Trial and Appeal Board Trademarks

Authorship Credit for Scholarly and Creative Works: The Elusive American Attribution Right

What if were to tell you that I jointly authored this article with a colleague, but that I’m not going to give her any credit or attribution because I don’t feel like it? Can she sue me for copyright infringement? No, because...more

11/11/2015 - Authorship Copyright Copyright Infringement Intellectual Property Protection Right of Attribution

Boston Marathon Can’t Stop MARATHON MONDAY Trademark Registration

In 1897, the Boston Athletic Association (BAA) first organized the Boston Marathon and has been running the event ever since. The world famous race has been held on the third Monday of April every year since 1969, and it is...more

11/3/2015 - Sports Apparel Trademark Application Trademark Infringement Trademark Litigation Trademark Registration Trademark Trial and Appeal Board Trademarks

Implied Threat on Facebook Insufficient to Support Stalking Conviction

Last month, the Massachusetts Supreme Judicial Court (SJC) held that a Facebook profile may constitute a “threat” within the meaning of the Massachusetts stalking statute. However, a profile that is merely “vaguely ominous or...more

10/12/2015 - Convictions Cyber-Stalking Domestic Violence Facebook Harassment MA Supreme Court Restraining Orders Social Media Stalking Vacated

Are You Sure This Isn’t About Copyright? Chicken Sandwiches, Monkey Selfies and the Boundaries of Copyright Law

Last week, a wild crested macaque named Naruto (but really People for the Ethical Treatment of Animals) filed a copyright infringement lawsuit against photographer David John Slater in the Northern District of California. The...more

9/29/2015 - Communications Decency Act Copyright Copyright Infringement Copyright Litigation Critical Habitat Defamation DMCA PETA Popular Selfies Takedown Notices Young Lawyers

Marshmallow Justice: 10 Tales of Legal Fluff and Other Stuff

Just about one hundred years ago, Archibald Query of Somerville, Massachusetts invented the first commercial marshmallow cream, which he pedaled door-to-door in Union Square. Around 1917, he sold the recipe for $500 to two...more

9/22/2015 - Bad Faith Circumstantial Evidence Defamation Dilution Domain Names FTC ICANN Obviousness Patent Trial and Appeal Board Patents Popular RJR Nabisco The Clayton Act Trademark Infringement Trademark Litigation Trademarks UDRP

Ninth Circuit “Dancing Baby” Copyright Decision: A Quick Read for the Busy Practitioner

Earlier this week, the Ninth Circuit affirmed the Northern District of California’s denial of cross motions for summary judgment in Lenz v. Universal Music. In an opinion by Judge Richard Tallman, the Court held that the...more

9/17/2015 - Algorithms Copyright Copyright Infringement Copyright Litigation DMCA Fair Use Good Faith Misrepresentation Section 512 Takedown Notices Universal YouTube

Defamation and the Common Interest Privilege in the Construction Industry

Construction projects often involve a complex array of contractors, subcontractors, banks, bonding agents, architects, engineers and so on. With that many parties depending on each other to complete a project, negative...more

8/31/2015 - Actual Malice Architects Common-Interest Privilege Competition Construction Industry Construction Project Defamation General Contractors State Agencies

Statute Criminalizing Election Campaign Lies Found to Violate First Amendment and Article 16

On August 6, 2015, the Massachusetts Supreme Judicial Court (SJC) in Commonwealth v. Lucas struck down Massachusetts General Laws, Chapter 56, § 42 (Section 42), which criminalized the utterance or publication of “any false...more

8/10/2015 - First Amendment MA Supreme Court Political Campaigns Political Speech Probable Cause

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