David Kluft

David Kluft

Foley Hoag LLP

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Sexual Harassment Parody Commercial Held Not To Violate Lanham Act

Section 43(a) of the Lanham Act prohibits false or misleading statements in commerce that are likely to cause confusion as to a person’s affiliation, approval or sponsorship of someone else’s commercial activities. Here’s an...more

2/21/2017 - False Endorsements Lanham Act Right of Publicity Sexual Harassment Television Commercials TGI Friday's Trademarks

Blogger-Journalist Protected From Defamation Suit By Anti-SLAPP Statute

Are journalists protected by anti-SLAPP statutes? Until last week, the likely answer would have been: “probably not,” at least in Massachusetts. But that was before Cardno Chemrisk, LLC v. Foytlin, a recent opinion by the...more

2/20/2017 - Anti-SLAPP Blogging Platforms Blogs Deepwater Horizon Defamation First Amendment Huffington Post Journalists MA Supreme Court

Sue-per Bowl Shuffle III: The Year In NFL-Related Intellectual Property Litigation

Two years ago, 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 intellectual property lawsuits that sports fans assume IP...more

1/30/2017 - Amazon Communications Decency Act Copyright Counterfeiting Disparagement Domain Names False Advertising Football Lanham Act NFL Photographs Popular Redskins Right of Publicity The Slants Trademark Trial and Appeal Board Trademarks UDRP Video Games

Connecting The DOTBLOG: Is Your Trademark Descriptive Or Suggestive?

When you see the name DOTBLOG, what does it mean to you? Is it just a blog about DOTS candy? Or about the painter George Seurat? Maybe it indicates a service that will help you punctuate your blog entries? Ok, probably not,...more

1/25/2017 - Descriptive Trademarks Suggestive Marks Trademark Trial and Appeal Board

Charles Dickens And Copyright Law: Five Things You Should Know

One hundred and seventy five years ago, on January 22, 1842, Charles Dickens first set foot in America, specifically in Boston, after a twenty day steamship voyage from Liverpool. Dickens, only a few days shy of his thirtieth...more

1/17/2017 - Copyright Copyright Litigation Intellectual Property Protection Young Lawyers

Can “Merry Christmas” Be A Trademark For Christmas Wrapping?

In 1905, the owners of Smith & Kaufman, Inc., a ribbon & silk company in New York, hit upon an idea. Wouldn’t it be great, they thought, if we made a red holiday ribbon for wrapping Christmas presents, with the words “Merrie...more

12/19/2016 - Trademark Trial and Appeal Board Trademarks USPTO Young Lawyers

A Trademark Year In Wine And Beer 2016: Our Holiday Buyer’s Guide To Disputed Beverages

Just in time for the holiday season, we present our third annual Trademark Year in Wine and Beer, a wrap-up of alcohol-related trademark and trademark-ish disputes dating back to December 2015, when we published our last...more

12/6/2016 - Beer Popular Trademark Trial and Appeal Board Trademarks UDRP Wine & Alcohol

Copyright Office Ditches Paper And Announces Electronic Renewal Requirement For DMCA Designated Agents

Since the enactment of the Digital Millennium Copyright Act (“DMCA”) in 1998, online service providers wishing to avail themselves of the DMCA’s safe harbors (from liability for copyright infringement) have been required to...more

11/9/2016 - Copyright Copyright Infringement DMCA Internet Service Providers (ISPs) Popular Safe Harbors

Ninth Circuit Extends Octane Fitness Attorneys’ Fee Analysis To Lanham Act Cases

In the 2014 case of Octane Fitness, LLC v. Icon Health & Fitness, Inc. (and a companion case), the Supreme Court articulated a standard for courts to use when deciding whether to award attorneys’ fees in patent cases. As we...more

11/1/2016 - Attorney's Fees Lanham Act Octane Fitness v. ICON Patent Litigation Patents Prevailing Party The Patent Act Trademarks

Defamation Takes A Holiday: Slander And The Salem Witch Trials

Hypothetical: You go out for a nice stroll one Halloween only to have a neighbor emerge from his house with a pitchfork and accuse you of being a witch in front of the whole village. For the sake of argument, let’s say you...more

10/26/2016 - Defamation Slander

10 Copyright Cases Every Fan Fiction Writer Should Know About

If you are a Star Trek fan, the name Axanar has almost certainly crossed your lips or your computer screen recently. Axanar is a film (well, at least a very good trailer aspiring to be a film) set in the Star Trek universe,...more

10/18/2016 - Abstract Ideas Copyright Copyright Litigation Fair Use Paramount Pictures Writers

Hot News, Shredded Wheat and Wool Underwear: Brandeis On Copyright And Trademark

October 9 marks the 100th anniversary of Louis Brandeis’ first session as a justice of the Supreme Court of the United States (October 9, 1916 was the second Monday in October – in 1917, the Court began meeting on the first...more

10/5/2016 - Associated Press Cease and Desist Orders Copyright Infringement Copyright Litigation FTC Kellogg Company Misbranding The Copyright Act Trademark Infringement Young Lawyers

Advertising Through Social Media: Ten Tips For FTC & NAD Compliance

Most modern advertising campaigns include social media components. In fact, it is not uncommon today to see products advertised exclusively on social media. For the most part, the same rules that govern traditional...more

9/22/2016 - Advertising COPPA Endorsements False Advertising FTC Hashtags NAD Popular Social Media Trademark Infringement

Don’t Think About Copyright Law on Labor Day

Labor Day is the wrong time to think about copyright law, especially in 2016, because this year marks the twenty fifth anniversary of the Supreme Court’s decision in Feist Publications v. Rural Telephone Service, 499 U.S. 340...more

9/6/2016 - Copyright Copyright Clause Copyright Infringement Originality The Copyright Act

The London Omnibus And its Impact on U.S. Trademark Law

If you are traveling to London in August (as I am right now), you don’t have to go far before you start soaking in this great city’s contribution to trademark law. In fact, the very first thing many tourists encounter when...more

8/19/2016 - Trademarks UK Young Lawyers

Miss Trademark USA: Beauty Pageant Naming Disputes

Just this month, two disputes over the trademark rights to beauty pageant names were resolved, pending appeal. In World Pageants LLC v. Miss G-String International LLC, the Trademark Trial and Appeal Board (“TTAB”) dismissed...more

8/10/2016 - Beauty Pageants Likelihood of Confusion Popular Preliminary Injunctions Trademark Infringement Trademark Trial and Appeal Board Trademarks

Harry Potter And The Cursed Legal Update

It has been about a year since we published Harry Potter Lawsuits and Where to Find Them, my attempt at a comprehensive review of Harry Potter-related litigation. Why update the article now? Two reasons. First: The...more

7/27/2016 - Books CARU Copyright Copyright Infringement Criminal Prosecution Film Industry Patents Popular Twentieth Century Fox Young Lawyers

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

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