News & Analysis as of

Likelihood of Confusion

Policing the Trademark Playground and Calling Out Bullies

The prevailing defendant in Louis Vuitton v. My Other Bag, LLC (previously blogged about in Louis Vuitton Left Holding the Bag), in a Motion filed on April 7 in the Southern District of New York (Case 1:14-cv-03419-JMF...more

Marijuanaville v. Margaritaville: Registering Trademarks For Chemically Induced Mental Paradises

Although marijuana is becoming legal to varying degrees in an increasing number of states, your chances of getting a marijuana trademark registered with the United States Patent and Trademark Office (PTO) are still grim. In...more

Why Brand Owners Need to Keep a Paper Trail

by Bennett Jones LLP on

Good evidence wins cases. In a trademark opposition, evidence demonstrating how and for how long a mark has been used in commerce (for example, on hangtags, labels, packaging, signage, invoices and online platforms) can be...more

When States of Mind Collide: USPTO Rejects MARIJUANAVILLE as Confusingly Similar to MARGARITAVILLE

Could you write a legal opinion about Jimmy Buffett, Margaritaville and Marijaunaville without displaying any trace of a sense of humor? The United States Patent and Trademark Office (USPTO) did. The USPTO wrote a 30-page...more

Parrotheads Can Rejoice As Jimmy Buffett Prevails In Trademark Dispute

Jimmy Buffett won a trademark dispute and precluded the applications for “Marijuanaville” marks from registering due to a likelihood of confusion with his famous MARGARITAVILLE® mark for clothing (including shirts and caps),...more

Keyword ads — Only infringing if they’re confusing

by Thompson Coburn LLP on

Neighbors can be helpful. Our Canadian neighbors may have just helped U.S. trademark owners who wonder about the legality of use of their trademarks in Google AdWords ads, and other search-engine keyword ads....more

The Battle of the Kylies Over the “Kylie” Trademark

In one corner, you have the 19-year-old breakout star of the Kardashian/Jenner clan, Kylie Jenner, who is making a name for herself with her cosmetics and fashion empire. In the other corner, you have the 48-year-old singer,...more

Three Stripes and You’re Out

On March 17, Adidas American, Inc. sued Juicy Couture, Inc., in the District of Oregon (3:17-cv-00437), alleging trademark infringement, unfair competition, trademark dilution, deceptive trade practices, and breach of...more

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

by McDermott Will & Emery on

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

Less Utility Than Alternatives Does Not Make Product’s Trade Dress Protectable

by McDermott Will & Emery on

The US Court of Appeals for the Seventh Circuit affirmed a district court grant of summary judgment in favor of a defendant finding that a bag’s design and shape was functional because the claimed design features affect the...more

U.S. Krispy Kreme Doughnuts Win 4-0 Over Spanish Donuts

A decision rendered by the European Court of Justice (ECJ) on March 2, 2017, affirming a General Court ruling and potentially ending a nearly twenty-year legal battle, is a reminder to trademark owners that what is generic in...more

Just Like You and Me: Difficulties with Celebrity Trademark Applications

Under U.S. trademark law, any person (including a celebrity) can obtain a trademark registration for their name if they can establish that the public recognizes the name as a source identifier for certain products or...more

April Madness, the NCAA’s One Month Buffer?

We write a lot here about the scope and strength of trademark rights and how that determination is often intertwined to making intelligent likelihood of confusion determinations....more

My USPQ 1 Round Up: “Confusion in Letters”

The United States Patents Quarterly has been a resource used by intellectual property lawyers for a very long time. Most of the decisions published in USPQ are patent decisions, but there are a large number of trademark...more

SpongeBob Restaurant Found To Infringe Viacom’s Trademark

On January 11, 2017, the Southern District of Texas granted Viacom International Inc. summary judgment on its trademark infringement claim against IJR Capital Investments, LLC’s name for its proposed restaurant, “The Krusty...more

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

by Dorsey & Whitney LLP on

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

Likelihood of Confusion at Its Most Blatant

Imagine my surprise and amusement to find a recent shipment of wine included a very interesting red blend. The bottle featured a name that would make any trademark lawyer do a double-take...more

A March to Madness: Can the NCAA Claim Ownership of the Third Month of the Year?

by Dorsey & Whitney LLP on

The NCAA has a well-deserved reputation for being quite zealous when it comes to protecting its registered trademark “March Madness.” We previously blogged about this here at TheTMCA.com. But a recent opposition filed by the...more

Sixth Circuit Drops the Beat: Social Media Relevant in Determining Likelihood of Confusion

by McDermott Will & Emery on

The US Court of Appeals for the Sixth Circuit affirmed a grant of summary judgment, holding that the plaintiff provided insufficient evidence to find that relevant consumers were likely to confuse the sources of his and the...more

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

by WilmerHale on

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

Selecting a Mark

While branding is important, selecting a mark for a new business can occupy a disproportionate amount of management’s time and the company’s resources, and present significant risks to the business....more

Germany: Unlicensed Hard Rock Cafe in Heidelberg Germany ceases operation

by Hogan Lovells on

After years of litigation Hogan Lovells achieved a ground-breaking settlement for the Hard Rock Group. A restaurant with the same name which operated without a license in Heidelberg will cease to operate at the end of...more

2017 Intellectual Property Law Year In Review

by McDermott Will & Emery on

Though politics ruled the headlines in 2016, the year still brought big changes in intellectual property law and its application, most notably in patent subject matter eligibility, inter partes review institution and appeal...more

McNees 2016 In Review – Trademarks, Copyrights and Patents

The year 2016 saw interesting and diverse developments in trademark, copyright, trade secret, and patent law. Not only has intellectual property news been in the headlines, but these areas have made it to the Supreme Court....more

Circuit Split Remains: SCOTUS Passes on Defining Nominative Fair Use

In a recent disappointment to those advocating clarity for the muddy waters of determining permissible use of third-party trademarks under the nominative fair use doctrine, the Justices of the United States Supreme Court...more

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