Lanham Act

News & Analysis as of

These Boots Are Made For Walkin’: Trade Dress and the Distinctive Look of a Boot Sole

Airwair, the owner of the Dr. Martens brand, recently launched a series of lawsuits in the Northern District of California to enforce the trade dress of its “iconic boots and shoes.” One lawsuit was filed in October against...more

Use It or Lose It: USPTO to Conduct Post-Registration Trademark Use Audits

Trademark owners take note: Affidavits to renew your U.S. trademark registrations may be getting a closer look. On March 21, 2017, the United States Patent and Trademark Office ("USPTO") implemented a new rule aimed at...more

USPTO launches new proof of use audit program

The United States Patent and Trademark Office (USPTO) has launched a new program that will require some trademark owners to submit more “specimens” (i.e., proof of use) and information than was required in the past. As a...more

Lanham Act Lesson: Dropbox Drop Kicks Opponent and Scores Attorneys’ Fees Award

As the sun set on 2016, the 9th Circuit Court of Appeals in Sunearth, Inc. v. Sun Earth Solar Power, Co. embraced a new standard for awarding attorneys’ fees in Lanham Act cases. Adopting the U.S. Supreme Court’s rationale...more

Lanham Act Cannot Be Used to Create “Species of Mutant Copyright Law”

The US Court of Appeals for the Ninth Circuit upheld a district court decision granting summary judgment to a defendant that its use of digital files did not infringe plaintiff’s trademark or trade dress for its CD-Gs...more

ITC Section 337 Update – March 2017

Commission Reverses ALJ’s Dismissal Of U.S. Steel’s False Designation Of Origin Claim And Sets Hearing On U.S. Steel’s Antitrust Claim In Certain Carbon Steel; U.S. Steel Withdraws Trade Secret Theft Claim – 2017 has produced...more

The PARIS BEACH CLUB Trademark. Get It?

En route to Paris for the spring conference of the Pharmaceutical Trade Marks Group, I am contemplating trying to pay a visit to the PARIS BEACH CLUB. Paris Beach Club! Get it? It’s a joke because, as everyone of course...more

Standing to Enforce Foreign Trademark Rights After Belmora v. Bayer Certiorari Denial

On February 27, 2017, the Supreme Court of the United States denied certiorari in Belmora LLC v. Bayer Consumer Care AG, 819 F.3d 697 (4th Cir. 2016), cert. denied, __ S. Ct. __, 2017 WL 737826 (U.S. Feb. 27, 2017) (No....more

The Five Year Divide: Limited Recourse to Cancel Registrations, Even Those Void Ab Initio

The Sixth Circuit recently issued an opinion in NetJets Inc. v. IntelliJet Group, LLC Inc. (unpublished), holding that where a trademark registration is incontestable, it may not be cancelled on the ground that it was void ab...more

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

Alien Tort Statute (ATS)/Political Question Doctrine/Foreign Sovereign Immunity Act (FSIA)/ Act of State Doctrine - District Court Dismisses ATS Claim Where Alleged Conduct in US was not Directly Linked to Injuries...more

Improper Assignment of THE EMERALD CITY Mark – Registration Cancelled in Toto

Assignment of an intent-to-use trademark application can be fraught with risk. To deter “trafficking” in ITU applications, Section 10 of the Lanham Act prohibits the assignment of an ITU application before an amendment to...more

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

McCarthy Institute Trademark Seminar 2017

One of the current challenges in trademark law addressed in Seattle last week at the Amazon Corporate Conference Center, host of the 2017 McCarthy Institute and Microsoft Corporation Symposium, is an issue we have discussed...more

Food for Thought: A Review of 2016 Litigation

Food for Thought is a review of significant court decisions affecting the food, beverage, dietary supplements and personal care products industry. Although many cases in this edition focus on class certification, others...more

Disparaging (or Maybe Not) Trademarks: The Supreme Court Hears Oral Arguments on In Re Tam

On January 18, 2017, the Supreme Court heard oral arguments regarding whether the Lanham Act’s provision refusing federal trademark registration to disparaging marks is invalid under the Free Speech Clause of the First...more

Intellectual Property Bulletin - Winter 2017

A Smooth Patch in a Rough Road? Governmental Transition and Intellectual Property - Whenever a new Congress convenes, some IP issues come to the fore while others take a back seat. Transition to a new administration in...more

CGL Coverage for False Advertising and Intellectual Property Claims: Sometimes It’s There, but You Need to Know Where to Look for...

A recent case in the Northern District of California offers two cautionary tales to policyholders. First, when buying insurance, companies should understand their risks and ensure that the policies they’re buying match those...more

The Supreme Court Tackles Disparaging Trademarks

From my title, you may think I am referring to the battle over the REDSKINS trademark. However, the In re Tam case beat the REDSKINS team to the high court. The case involving the REDSKINS mark is currently on hold until...more

A Trademark By Any Other Name…

The Lanham Act prohibits registration on the Principal Register of a mark that is “primarily merely a surname” unless an applicant can show that the mark has acquired secondary meaning such that consumers perceive the surname...more

Copyright and Trademark Case Review: Copyright Preemption, Software-as-a-Service and Popularity on the Internet

Copyright Decisions - Claim for Copying of Useful Article Design Preempted by Copyright Act: Ultraflo Corp. v. Pelican Tank Parts, Inc., No. 15-20084 (5th Cir. Jan. 11, 2017)...more

Advertising Law - February 2017

SPECIAL FOCUS: Current State of the FTC: Three Top Priorities - On February 2, Acting Chairman of the Federal Trade Commission, Maureen Ohlhausen, addressed the ABA 2017 Consumer Protection Conference in Atlanta and...more

What's in a Name?: An Overview of the TTAB's Recent Surname Decisions

Barr. Aldecoa. Hechter. Adlon. Kepler. Butterfields. What do these words have in common, you may ask? They were all recently found to be "primarily merely a surname," and refused registration by the Trademark Trial and Appeal...more

Advertising Litigation Report: Vol. 2, No. 1

Lanham Act False Advertising - Lanham Act Liability for Native Advertising Violations - Casper Sleep, Inc. v. Mitcham, --- F. Supp. 3d ---, No. 16 Civ. 3224 (JSR), 2016 WL 4574388 (S.D.N.Y. Sept. 1, 2016)...more

Lee v. Tam: Supreme Court Hears Oral Arguments On Lanham Act Section 2(a) Prohibition of Registration of Disparaging Marks

Earlier this month, the Supreme Court of the United States heard oral arguments in Lee v. Tam to examine the constitutionality of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a). Section 2(a) prevents the registration of...more

NASCAR Brand Gasoline at a Pump Near You?

With the Strafford Publications webinar later today discussing the Lanham Trademark Act’s “Use in Commerce” requirement, with some of my favorite panelists no less, the topic has been on my mind, even when pumping gas into my...more

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