News & Analysis as of

Fair Use Trademarks

Dr. Seuss is Drooling Over Court’s Pre-Holiday Ruling

by Dorsey & Whitney LLP on

You know of this lawsuit, we’ve blogged on it twice, It’s time for a check-in, to see who’s naughty and nice. The Plaintiff as you know is the heir of Dr. Seuss, And fussing and fuming about an alleged unfair use....more

Being your Best Brand: A Lesson from the Luxury Market

by Womble Bond Dickinson on

Becoming, and staying, a great brand is rife with challenges and the need to protect and enforce a brand is never ending. This is especially true in the luxury world, where brands are constantly challenged by counterfeit...more

Intellectual Property Bulletin - Fall 2017

by Fenwick & West LLP on

In the Winter 2017 edition of the Intellectual Property Bulletin, we reported on IP-related changes expected with the incoming Trump administration and the new Congress. Here we look at two such changes currently underway:...more

Posner On Copyright: 10 Cases To Remember

When Judge Richard Allen Posner abruptly retired from the Seventh Circuit Court of Appeals last month, we were so caught off guard that it took a few weeks to get our tribute machine up and running. Why a tribute to Posner...more

No Free Ride for Copycat Perfume Company – Fair Use Rejected, False Advertising Found, Accounting of Profits Awarded

by Dorsey & Whitney LLP on

Well-known perfume marketer Coty Inc. had a big win in New York federal district court, obtaining injunctive relief and $6.5 million dollars in an accounting of profits from copycat perfume seller Excell Brands, LLC. In an...more

Making Fair Use of the Super Bowl Trademark

Over the weekend, the Star Tribune continued the growing drum beat of understandable excitement for Super Bowl LII, as it steadily approaches U.S. Bank Stadium in Minneapolis....more

Summary Judgment “Disfavored” for Resolving Fair Use Trademark Defense

by McDermott Will & Emery on

Examining the issue of trademark fair use, the US Court of Appeals for the Ninth Circuit reversed a district court grant of summary judgment in favor of a promotional products company and remanded the case for reconsideration...more

Trademark Fair Use: A Subjective Call No Matter What Side of the Pond

There are occasions where displaying another company’s trademark is desirable. Whether that type of trademark use is lawful generally is a subjective, fact-specific determination under both United States and European Union...more

The Ninth Circuit Writes the Script on Pleading and Proving Reverse Confusion Claims

by Fenwick & West LLP on

The U.S. Court of Appeals for the Ninth Circuit clarified the requirements for pleading and establishing a trademark infringement claim under a “reverse confusion” theory in Marketquest Group v. BIC, Case No. 15-55755 (9th...more

Top Ten Urban Legends of Intellectual Property

1. Poor Man’s patent/copyright: mail yourself a copy of what you want protected and don’t open it.The sealed information can then be used to prove ownership of the intellectual property contained in it. While this may...more

“Charging Bull” Sculptor Articulates VARA Complaint, But “Fearless Girl” Still Standing Firm

by Sullivan & Worcester on

After a recent discussion about whether the new Fearless Girl sculpture by Kristen Visbal in Lower Manhattan might implicate the copyright of the earlier Charging Bull sculpture that has been there for nearly three decades,...more

Do You Even Meme Bro? The Law of Internet Memes

by Gray Reed & McGraw on

You know you’ve chuckled at a few of them–the ubiquitous internet meme. But, have you ever wondered whether all this sharing, changing and going “viral” is legal....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

Louis Vuitton Left Holding the Bag

In Louis Vuitton Malletier S.A. v. My Other Bag, Inc., [16-241-cv] (December 22, 2016), the Second Circuit affirmed summary judgment for My Other Bag that its parody bag did not infringe or dilute Louis Vuitton’s trademark...more

Celebrity Brands: The Line Between Fair Use and Infringement

by Jaburg Wilk on

All brand owners are faced with difficult decisions regarding how aggressively to police their brands. The decision is particularly difficult when the unauthorized use is by a loyal customer or fan. While some traditional...more

It Is Not “Easy Like Sunday Morning” To Use Commodore As A Trademark

by Winthrop & Weinstine, P.A. on

The band’s song “Easy” does not reflect Commodores’ founder Thomas McClary’s court battle to use the trademark “COMMODORES founder Thomas McClary” for his solo career. As I dug further into the meaning of the song, it is...more

Copyright and Trademark Case Review: Who’s on First?, Virtual Lockers and Lanham Act Fee-Shifting

by WilmerHale on

Copyright Opinions - Second Circuit Permits Distribution of Cloud-Based Samples, But Declines to Consider “Novel” Cloud Storage Infringement Issue: Smith v. Barnesandnoble.com, LLC, No. 15-3508 (2d Cir. October 6,...more

Puttin’ on the “Ritts”: Political Speech and Fair Use

Leaving aside the outcome of election day (and indeed I confess I wrote this before the polls closed), I couldn’t help but notice these ads in downtown Minneapolis...more

Certification Mark May Be Infringed Despite Nominative Fair Use, Lack of Source Confusion

by McDermott Will & Emery on

Addressing the use of a certification mark in connection with information systems training, the US Court of Appeals for the Second Circuit reversed and remanded a district court grant of summary judgment for the defendants on...more

Eight is Not Enough: Second Circuit Adopts Eleven Factor Nominative Fair Use Test in Certification Mark Case

International Information Systems Security Certification Consortium (known as ISC2) is a non-profit organization that owns a registered certification mark for the term CISSP® (meaning “Certified Information Systems...more

Nominative Fair Use of a Trademark: The Second Circuit Weighs In

by Dorsey & Whitney LLP on

If a defendant in a trademark case uses the plaintiff’s trademark, not to identify the defendant’s own products, but rather to refer accurately to the plaintiff’s products, is that trademark infringement? Called “nominative...more

Nominative Fair Use: The Second Circuit Joins Neither The Third Nor Ninth Circuits In Its Approach

by Akerman LLP on

In an important decision delineating the boundaries of fair use of another person’s trademark, the Second Circuit announced a standard by which nominative fair use of a trademark will be evaluated in that Circuit in...more

Second Circuit Highlights Splits on Nominative Trademark Fair Use

by Morgan Lewis on

The Second Circuit disagrees with sister circuits and rejects arguments that nominative fair use is an affirmative defense that is available even when confusion is likely and that the traditional nominative fair use analysis...more

Law à la Mode: A new provision for trademark parody - is it a joke?

by DLA Piper on

A number of fashion players base their business on the very thin line running between tribute and misappropriation. In this context, it is difficult to understand how quotations of wellknown fashion trademarks made with...more

Nominative Fair Use: The Second Circuit Joins Neither The Third Nor Ninth Circuits In Its Approach

In an important decision delineating the boundaries of fair use of another person’s trademark, the Second Circuit announced a standard by which nominative fair use of a trademark will be evaluated in that Circuit in...more

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