David Kluft

David Kluft

Foley Hoag LLP

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Copyright Office: Aereo Likely Not A Cable Company

We previously reported on the Supreme Court’s recent decision on June 25, 2014 that Aereo, Inc.’s internet television service infringed the copyright of the programs being transmitted by the service. In holding that Aereo was...more

7/22/2014 - ABC v Aereo Aereo Broadcasting Copyright Copyright Infringement Internet Streaming SCOTUS Telecommunications The Copyright Act

“Big Chocolate” Gets Injunction Against Whack-A-Mole Senator; Trademark “Services” Include Political Activities

Last week, Judge William Quarles of the District of Maryland issued an injunction preventing Maryland Republican State Senator Steve Hershey from using his own campaign literature. The case was brought by the Hershey...more

7/21/2014 - Corporate Counsel Hershey Chocolate Company Infringement Political Campaigns Popular Trade Dress Trademark Litigation Trademarks

Copyright As An Online Reputation Management Tool: A Round Hole For A Square Peg

So, how is copyright law doing as an online reputation management tool? We have written many times recently about the use of copyright law to do what defamation law can’t: take stuff down from the internet. A...more

7/16/2014 - Communications Decency Act Copyright Copyright Infringement Defamation Defamation Act DMCA Google Internet Popular Reputation Management Social Networks

Westlaw and Lexis Finally Agree: Providing Copyrighted Legal Briefs To Customers Is Fair Use

Every attorney in the United States understands that West Publishing Corp. (“Westlaw”) and the LexisNexis Group (“Lexis”) are perennial rivals in the electronic legal research field. As such, they don’t agree on much, but...more

7/14/2014 - Copyright Copyright Infringement Fair Use LexisNexis Popular Westlaw

Do Municipal Seals Enjoy Any Trademark Protection? Recent Cases Take Differing Views

Late last year, in a matter of first impression, the Federal Circuit affirmed the Trademark Trial and Appeal Board and held that the city of Houston could not register its official municipal seal with the United States Patent...more

7/7/2014 - Municipalities Trademarks USPTO

“Oh right. . . THAT thing!” Designated Agent Required Prior To DMCA Copyright Infringement Safe Harbor

The recent case of Oppenheimer v. Allvoices is, if nothing else, a cautionary tale for everyone who wants to start the next big social networking site or provide any internet service with user-generated content. The moral is...more

7/1/2014 - Agents Copyright Copyright Infringement Designated Agent DMCA Internet Service Providers Safe Harbors Social Networks User-Generated Content

When “Slacker” Was A Dirty Word: Defamation And Draft Dodging During World War I

This summer marks the 100th anniversary of the outbreak of World War I. The Archduke Ferdinand was assassinated on June 28, 1914 and, by the end of August 1914, Germany, Russia, France and the United Kingdom had joined the...more

6/30/2014 - Defamation

Supreme Court Holds that Technical Differences Don’t Save Aereo From Infringement Liability

Television broadcasters and other digital content providers issued a collective sigh of relief on June 25, 2014 when the United States Supreme Court issued its much-awaited opinion in American Broadcasting Companies, Inc. v....more

6/26/2014 - ABC ABC v Aereo Aereo Broadcasting Cable Television Providers Copyright Copyright Infringement Public Performance Rights SCOTUS The Copyright Act

Clever Or Contemptuous? The “Great Injunction Cigarros” Trademark

In its recent decision in Cigar King v. Corporacion Habanos, the Federal Circuit Court of Appeals affirmed the cancellation of Cigar King’s trademarks after it failed to comply with discovery orders. This was only the latest...more

6/23/2014 - Trademark Litigation Trademarks

NYC Restaurant Scene Extends to Newark In Concurrent Use Trademark Case

The matter of Terra Sul Corp. v. Boi Na Braza, Inc. involved a concurrent use proceeding between two restaurants over their nearly identical names. In theory, the scope of the conflict was nationwide, but in reality, as one...more

6/20/2014 - Resorts & Restaurants Restaurant Industry Trademark Litigation Trademark Trial and Appeal Board Trademarks

“National Association For The Abortion of Colored People” Trademark Case Heads To Fourth Circuit

We previously reported on the dispute between the National Association for the Advancement of Colored People (NAACP) and the conservative activist Ryan Bomberger. Bomberger had repeatedly referred to the NAACP in online...more

6/18/2014 - Abortion Popular Trademark Litigation Trademarks

It Doesn’t Have To Be the Magna Carta! Alien Yogurt And The Writing Requirement For Copyright Transfers

Sunday (June 15) marks the 799th birthday of the Magna Carta (sometimes spelled Magna Charta), which famously limited the powers of the English monarch vis-à-vis his feudal barons. Although often credited as a singular...more

6/11/2014 - Copyright The Copyright Act Transfers

Defamation Claim Against HBO Sports Documentary Proceeds; International Sporting Goods Supplier Not a Public Figure

On May 16, 2014, in Mitre Sports v. HBO, the Southern District of New York allowed a defamation claim brought by a UK company against HBO to proceed to trial. In doing so, the Court ruled that Mitre Sports International, one...more

6/5/2014 - Defamation HBO Media Mitre Sports

Comments Sought on Service Mark Examination Guidelines

The United States Patent and Trademark Office is soliciting comments on its draft version of the “Service Mark Specimens” examination guide. The topics covered by the guide include the elements of an acceptable service mark...more

6/4/2014 - Public Comment Service Mark Specimens USPTO

Boston Copyright Round Table on Policy, Creativity and Innovation

The Department of Commerce is holding a round table at Harvard Law School on June 25, 2014 to discuss the Internet Policy Task Force’s Green Paper on Copyright Policy, Creativity and Innovation in the Digital Economy,...more

6/4/2014 - Copyright Copyright Infringement Digital Goods First Sale Doctrine Internet U.S. Commerce Department

When Judges Met Jazz: The First Decade Of Jazz Law

In honor of African American Music Appreciation Month, sometimes known as Black Music Month, we recall the first judicial decisions in which jazz music was the subject of a legal dispute. Although jazz originated in the late...more

6/3/2014 - Copyright Legal History Music Music Industry Trademarks

Communications Decency Act Forecloses Liability For “Amplifying,” “Endorsing” and “Adopting” Defamatory Statements With Hyperlink

Two weeks ago, in Vazquez v. Buhl, the Appeals Court of Connecticut affirmed dismissal of a defamation claim against CNBC for hyperlinking to an online report by journalist Teri Buhl. The Court held that, although CNBC...more

5/27/2014 - Communications Decency Act Defamation Internet NBC

Raging Bull Majority Decision: Supreme Court Nixes Laches As Defense To Copyright Damages

In Petrella v. MGM, the U.S. Supreme Court was confronted with the question of whether laches is available as a defense to copyright infringement. We have previously written about the case here and here. Yesterday, May 19,...more

5/20/2014 - Copyright Infringement Equitable Relief Laches Petrella v. MGM SCOTUS Statute of Limitations

Federal Circuit Copyright Decision in Oracle v. Google: A Quick Read for the Busy Practitioner

In its recent opinion in Oracle v. Google, the Federal Circuit reversed the Northern District of California and reinstated a jury’s infringement verdict against Google. The opinion is long and complex, and much ink has...more

5/20/2014 - Google Oracle Oracle v Google Patent Infringement

Bait-And-Switch Trademark Case Defines Limits Of Initial Interest Confusion

In its recent decision in Sussman-Automatic v. Spa World, the Eastern District of New York dismissed a plaintiff’s trademark infringement claims, while allowing its claims for false advertising based on the same conduct to...more

5/13/2014 - False Advertising Lanham Act Likelihood of Confusion Trademark Litigation Trademarks

Privacy or Property? Arizona Court Adopts Post-Mortem Right of Publicity In Intra-Family Online Dispute

The right of publicity, i.e., the right not to have others appropriate your name or image for commercial purposes, is an odd duck. It was described by Professor Prosser in 1960, and later in the Restatement of Torts, as of...more

5/6/2014 - Private Property Rights Probate Right of Publicity Right to Privacy

Recent Copyright And Trademark Administrative Developments

Some recent administrative developments may be of interest to copyright and trademark practitioners: Copyright Fees - Effective May 1, 2014, the U.S. Copyright Office has amended its registration fee schedule. This...more

5/6/2014 - Copyright DMCA Music Industry Orphan Works Patent Fees Trademarks USPTO WIPO

$22.5 Million Verdict In Copyright Registration Case Vacated Due To Fake Holocaust Memoir

Yesterday, the Massachusetts Appeals Court affirmed the vacature of a $22.5 million verdict in a matter that began fifteen years ago in part as a dispute over a duplicitous authorship claim in a copyright registration. The...more

4/30/2014 - Copyright Copyright Infringement Vacated

Catholic Priest Permitted To Conceal Non-Privileged Nature Of Defamatory Communication Until Statute Of Limitations Runs

In a recent unanimous decision in Harrington v. Costello, the Massachusetts Supreme Judicial Court (SJC) held that the statute of limitations had run out on a Catholic priest’s defamation claim against his colleague, even...more

4/21/2014 - Defamation Fraud Statute of Limitations

New “Twibel” Defamation Opinion Suggests Online Speech May Be Special After All

Many lawyers smirked and scoffed a few months ago when the popular press began touting the Courtney Love “Twibel” trial as a “landmark” case that would set a “major precedent.” In fact, as discussed further elsewhere, it was...more

4/21/2014 - Defamation First Amendment Libel Twitter

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