David Kluft

David Kluft

Foley Hoag LLP

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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

Harry Potter Lawsuits And Where To Find Them

On July 31, 2015, Harry Potter author J.K. Rowling celebrates her 50th birthday, according to muggle sources. The enormous success of Rowling’s literary creation and its associated multimedia empire has spawned countless...more

7/27/2015 - Copyright Copyright Infringement Copyright Litigation Fair Use First Amendment FTC Intellectual Property Litigation Intellectual Property Protection Popular Trademark Infringement Trademark Litigation Trademark Trial and Appeal Board Trademarks Young Lawyers

Right of Publicity Claims by Athletes Nearly Shut Out in 2015

When we published our Sue-per Bowl post, 2015 looked like it would be a good year for right of publicity claims brought by athletes. On January 6, 2015, the Ninth Circuit in Davis v. Electronic Arts held that the First...more

7/6/2015 - Athletes College Athletes First Amendment Media Michael Jordan NCAA NFL Right of Publicity Television Broadcast Stations

Copyright Law: The Silent © in Same-Sex Marriage

Last week, the focus of the legal world was not on intellectual property, to put it mildly. However, copyright law did have a small and somewhat silent, but still important, role in the Supreme Court jurisprudence that led to...more

6/29/2015 - Copyright Obergefell v. Hodges Popular The Copyright Act US v Windsor Young Lawyers

Political Speech, Trademarks And The Definition of “Goods or Services”

Last month witnessed the resolution of two trademark infringement cases involving the relationship between political activities and the definition of “goods or services.” On May 18, 2015, State Senator Steve Hershey gave up...more

6/2/2015 - First Amendment Hersheys Lanham Act Trade Dress Trademark Infringement Trademark Litigation Trademarks Young Lawyers

Digilante Justice: Defamation By Camera Phone

Earlier this month, a man in Melbourne, Australia decided to take his very first selfie next to a Darth Vader poster at a local shopping center. A nearby shopper mistakenly thought that the man was taking pictures of her...more

5/28/2015 - Cell Phones Defamation Fox Broadcasting Selfies Young Lawyers

“Hollywood Circuit” Court Issues En Banc Decision in Garcia v. Google: No Copyright Protection for Fleeting Dramatic Performance

On May 18, 2015, the Ninth Circuit sitting en banc vacated its prior decision in Garcia v. Google. The prior decision, authored by Judge Alex Kozinksi, controversially held that an actress had standing to issue a DMCA...more

5/19/2015 - Actors Authorship Copyright DMCA Film Industry Garcia v Google Google Independent Films Movies Young Lawyers YouTube

Eleventh Circuit Mops the Floor With Invalidity Ruling: Faux-Hardwood Gets Copyright Protection

Last year, the District Court in Home Legend v. Mannington Mills gave three reasons for its holding that the designs on faux-hardwood flooring material, which are intended to look like real maple floors, were not subject to...more

5/18/2015 - Copyright Photographs

The Bermuda Triangle of Online Defamation: Copyright, Clickwrap and the CDA

We have written many times about attempts to use copyright law to do what defamation law can’t: take stuff down from the internet. Because Section 230 of the Communications Decency Act (“CDA”) prevents a defamation plaintiff...more

4/27/2015 - Clickwrap Agreements Communications Decency Act Copyright Copyright Infringement Corporate Counsel Defamation Defamation Act DMCA Internet Internet Service Providers (ISPs) Popular Young Lawyers

Carta de Error! Copyright Takedown Notice To iTunes May Give Rise to Misrepresentation Liability

Section 512(f) of the Digital Millennium Copyright Act makes parties who issue copyright takedown notices liable for any “knowing” misrepresentations in those notices. However, the Ninth Circuit in Rossi v. Motion Picture...more

4/20/2015 - Apple Copyright Copyright Infringement DMCA Film Industry iTunes Misrepresentation Motion Picture Industry Section 512 Takedown Notices Young Lawyers

Three’s Company But Two’s a Crowd: Theatrical Parodies of Copyrighted Works

In our Oscar litigation post a few weeks ago, we made a passing reference to MGM v. Showcase Atlanta Coop. Prods., Inc., 479 F.Supp. 351 (N.D. Ga. 1979). In that case, the Northern District Court of Georgia held that the play...more

4/8/2015 - Copyright Entertainment Industry Parody Television Shows

Default Is In Our Stars: Allegedly Overreaching Copyright Claimants Fail to Show

Taking legal action to enforce a copyright is often an expensive proposition so, before you go down that road, you better make sure you own the copyright in question. But what if you have already initiated copyright...more

3/10/2015 - Copyright Copyright Infringement Default Judgment

And the Lawsuit Goes to . . . An Oscar-Time Guide to “Best Picture” Intellectual Property Litigation

The film that wins the Best Picture Oscar this year is certain to attract more viewers and more box office receipts than it had before receiving the award. But Best Picture winners also tend to attract more lawsuits,...more

2/17/2015 - Copyright Copyright Infringement Film Industry Movies Popular

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