Lanham Act

News & Analysis as of

Conflicting State and Federal Laws May Result in Crippling Blows to Business in the Marijuana Industry

As of October 2015, four states have legalized marijuana for recreational use: Alaska, Colorado, Oregon and Washington. The recreational marijuana movement—although slow in terms of states following by legalizing use—has had...more

On Slanted Arguments and Red Herrings

Last Friday, both slanted arguments and red herrings were present during the 90 minute en banc oral argument before the Court of Appeals for the Federal Circuit (CAFC) in In re Tam....more

Fireworks for Animal Drug Compounding at ACI’s Inaugural Animal Health and Veterinary Drugs and Therapeutics Conference-Part Two...

The second day began with a deep dive into the development of advanced biological drugs for animal use. David Brake, Ph.D., Founder and Principal, BioQuest Associates, LLC, helped explain the split between USDA and FDA...more

Laches Remains a Valid Defense to Patent Infringement Notwithstanding 'Petrella v. Metro-Goldwyn-Mayer'

On Friday, September 18, 2015, the Federal Circuit sitting en banc, confirmed in SCA Hygiene Products v. First Quality Baby Products that the common law doctrine of laches is still a viable defense to patent infringement when...more

Of Slants, Skins and Signs: The Coming First Amendment Showdown

Are we heading for a constitutional showdown over Section 2(a) of the Lanham Act? Will the Supreme Court strike down this prohibition on disparaging marks as an abridgement of First Amendment rights? It is certainly...more

Tenth Circuit Rules that False Advertising Plaintiffs Must Alleged Evidence of Implied Falsity and Quantify Damages at Pleading...

In a Lanham Act false advertising action by cosmetic surgeons against plastic surgeons – yes, those are two different things – the Tenth Circuit Court of Appeals, in an August 31 opinion, affirmed dismissal of Lanham Act...more

Third Circuit Deciphers Proper Standard for Evidence of Actionable Confusion - Arrowpoint Capital Corp. v. Arrowpoint Asset Mgmt.,...

Addressing the standard for actionable confusion, the U.S. Court of Appeals for the Third Circuit reversed the district court’s denial of a motion for a preliminary injunction for limiting what constitutes actionable...more

Proof of Confusion Essential for Trademark Injunction - Arborjet, Inc. v. Rainbow Treecare Scientific Advancements, Inc.

Addressing the likelihood of success requirement for injunctive relief, the U.S. Court of Appeals for the First Circuit vacated an order requiring trademark attribution where the district court had not found a likelihood of...more

Washington Redskins Continue to Fight Cancellation of its Federal Registration

The Washington Redskins are putting up a serious fight against the Trademark Trial and Appeal Board’s (“TTAB”) decision to cancel its federal registration for the mark ‘REDSKINS’ because of the mark being disparaging in...more

The World in US Courts - Orrick's Quarterly Review of Decisions Applying US Law to Global Business and Cross-Border Activities:...

We are pleased to announce the Summer 2015 issue of The World in US Courts: Orrick's Quarterly Review of Decisions Applying US Law To Global Business and Cross-Border Activities. This issue discusses 13 new decisions that...more

Lands’ End Requests Dismissal of “Made in U.S.A.” Class Action After Reimbursing Plaintiff

Last week, Lands’ End tried a second time to dismiss a “Made in U.S.A.” class action with the novel argument that, because the company had already reimbursed the plaintiff for the necktie she purchased, she is not injured and...more

Can a Google Search Save Your Company $5 Million?

It sounds like a scam, but I swear, there is some truth to this headline. Just ask Hasbro, Inc., the owner of the Littlest Pet Shop line of toy animal figurines. If you have never seen one before, below is an example of two...more

Competitors Push Back With False Advertising Laws

In a time when the “disruptive” label is far from viewed as pejorative and, in fact, deemed essential for many new business models, existing market participants looking to fight back are turning to powerful federal and state...more

Texas Hospital Strikes Back at Aetna

On February 23, 2015, Aetna filed suit in Texas federal court against Robert A. Behar, M.D. and North Cypress Medical Center (North Cypress), alleging that Dr. Behar, the CEO of North Cypress, offered impermissible ownership...more

Trademark Review | August 2015

The Redskins Lose Again (Off the Field)- A federal District Court affirmed the Trademark Trial and Appeal Board’s (TTAB) ruling that “Redskins” cannot be registered as a trademark for use in connection with a...more

Summary Judgment Ruling Not a Pretty Picture for Massachusetts Copyright Plaintiff

A recent decision from the District of Massachusetts demonstrates the difficulties that can arise when attempting to protect copyrighted works displayed on the internet. The July 29, 2015 order issued by the Honorable Patti...more

Pushing the Envelope on Initial Interest Confusion Claims — Multi Time Machine, Inc. v.

Consider this: You are shopping online and you type in the name of a brand of wristwatch. Perhaps you wanted to purchase that exact brand of watch, or perhaps you were looking for a selection of watches that included the...more

Uber Ordered to Buckle Up for Litigation: Taxicab Plaintiffs Ride out (in part) Uber’s Motion to Dismiss False Advertising Claims

A group of California taxicab companies sued Uber in federal court in San Francisco for falsely advertising the safety of Uber rides and for disparaging the safety of taxi rides. Uber moved to dismiss plaintiffs’ Lanham Act...more

In Trademark Dispute, New Hampshire School Website Address Not Taken For Granite

New Hampshire is commonly referred to as the Granite State. In one recent trademark infringement case, however, a federal court in New Hampshire did not find a likelihood of consumer confusion between website addresses for...more

Contributory False Advertising Liability Is Officially a Thing in the Eleventh Circuit

On August 7, the Eleventh Circuit Court of Appeals, ruling on a question that the Court determined to be one of first impression, has ruled that a cause of action for contributory false advertising can be maintained under...more

Attorneys' Fees May be Easier to Obtain in Lanham Act Cases Post-Octane Fitness

Intellectual property litigation is expensive for both the plaintiff and defendant. However, because defendants are required to defend themselves in a lawsuit—in comparison to a plaintiff who has the choice to file and...more

IP Law Tracker Docket Review

Each month, we review significant intellectual property decisions from the U.S. Court of Appeals for the Sixth Circuit and the U.S. District Courts for the Eastern District and Western District of Michigan. Below is the...more

What Does the Trademark Registration Say?

Remember a while back when many were humming to the tune “What Does the Fox Say“? Today, I’m asking, what does the trademark registration say? Not, what does the trademark say — that is a different and more complicated...more

Timing Is Everything—Objective Evidence of Bona Fide Intent to Use Necessary at the Time of Filing Application - M.Z. Berger & Co....

Addressing what constitutes sufficient evidence of “bona fide intent” to use a trademark in commerce, the U.S. Court of Appeals for the Federal Circuit affirmed the Trademark Trial and Appeal Board’s (TTAB or Board) decision...more

Disparaging Trademarks and the Constitutionality of Refusing Registration Under the Lanham Act

Disparaging trademarks have been the subject of vocal debate for over twenty years, but this debate has come to a head recently over the cancellation of the registration of the infamous "Redskins" trademarks belonging to the...more

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