Out With The Old, In With The Gatsby Sequels: Trademark and Copyright News for the New Year

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Most of us were thrilled to see the calendar turn to 2021 on January 1, closing the chapter on what was an extremely challenging year around the globe. Now that we are a month into the new year, and the fireworks have faded and the noisemakers are packed away, we take a moment to highlight a few notable developments in the IP world that made a somewhat quieter entrance on the scene when the clock struck midnight.

  • Brexit Clones: As of January 1, 2021, the United Kingdom is no longer a part of the European Union. While Brexit created many questions and dilemmas that took years to sort out, for trademark attorneys the primary question was always: “What will become of UK protection for EU trademark registrations?” We are pleased to report that the promised smooth transition has indeed come to pass: As of January 1, every valid EU trademark registration has spawned a UK “clone” with the same scope of protection and same priority date, preserving the owner’s existing rights in the UK. Trademark owners should take care to update their dockets to include these new registrations (which may sometimes duplicate UK registrations filed during the years of Brexit uncertainty). Meanwhile, owners of EU applications that were still pending on January 1 do not benefit from automatic cloning; they have until September 30, 2021 to apply for a corresponding UK registration with the same priority date.
  • USPTO Fee Increases: The new year also brought certain increases in key USPTO filing fees (technically effective on January 2, so those New Year’s Day holiday filings made it just under the wire). Filing a standard electronic application now costs $350 per class, rather than $275. The fee to file a Section 8 or 71 Declaration of Use to maintain an issued registration has increased from $125 to $225 per class, and there is a new $250 fee to delete goods or services from a registration after filing a Declaration of Use but before it is accepted (presumably to encourage owners to double-check that the mark is in use on all identified goods and services before filing the declaration). As for Trademark Trial and Appeal Board proceedings, an opposition or petition to cancel is $600 per class, up from $400, and there are also higher fees for extensions of time to oppose. There are even brand-new fees for requesting an oral hearing ($500) and for filing an appeal brief in an ex parte appeal ($200 per class). The message behind these increases appears to be: do not take up the TTAB’s time unless you really mean it. While the increased fees may be frustrating for trademark filers, we are gratified to see that the Trademark Office appears to be setting its fees with an eye not only toward covering its expenses, but also toward aligning incentives to serve substantive policies and efficiency.
  • New Copyrighted Works Enter the Public Domain: In 1998, the Sonny Bono Copyright Term Extension Act added 20 years to the term of copyright protection for pre-1976 works, and paused the annual expiration of copyright on older works for 20 years. In 2019, that extension ran out, and 95-year-old works from the 1920s began to enter the public domain every January. In 2021, we have arrived at the moment of free access to works published in 1925, the midpoint of the Roaring Twenties. This year brought us Ernest Hemingway’s first book, In Our Time, Virginia Woolf’s Mrs. Dalloway, the debut of The New Yorker magazine, and, of course, F. Scott Fitzgerald’s The Great Gatsby, along with its iconic cover. The Framers, of course, appreciated that great art often builds on what came before it, and wisely sought “to promote the progress of science and useful arts, by securing for limited times to authors . . . the exclusive right to their respective writings.” Making good on this promise of progress, in light of Gatsby’s new availability as derivative work source material, my colleague Joshua Jarvis has asked me to announce his forthcoming novel, The Great Gatsby and the Water Kelpies, in which “Jay is rescued from the pool and healed by a shape-shifting spirit, and they travel via underwater passage, with a quick stop in Atlantis (naturally), to Scotland, where they engage in various adventures (and humorous misadventures!).” Look for it soon at your favorite independent bookstore!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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