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It appears that the district court apparently believed patent eligibility under 35 U.S.C. § 101 to be a threshold inquiry that it had a duty to address—even in the silence of the parties—akin to, for example, subject-matter jurisdiction. But the presumption of validity afforded to patents under § 282 applies equally to all grounds of validity, including the eligibility of the claimed subject-matter.... Accordingly, to the extent the district court believed that validity under § 101 is treated any differently than validity under §§ 102, 103, and 112 for purposes of the party presentation principle, that was error.

The [Contour patent] claims are directed to a technological solution to a technological problem. The written description discloses improving POV camera technology through specific means of generating high- and low-quality video streams in parallel and transferring a low-quality video stream to a remote device, and the claims reflect this improvement. 

"the Video has a very low degree of 'transformativeness,' if any at all"--noting that the Video “is best described as a wholesale copying of music to accompany a political campaign ad.” The Video does not alter the Electric Avenue song or use Electric Avenue as a vehicle to deliver its satirical message, and “makes no effort to poke fun at the song or Grant.” The Court concluded that the Trump defendants “have offered no justification for their extensive borrowing.” 

Because of the different connotations, CATO and KATO would not engender the same commercial impression to anyone who knows the meaning of either term. For those consumers unfamiliar with either term, KATO would still manifest a different commercial impression, with a more Japanese aura.

The TTAB noted that the origin story of the applied-for "LEATHER MAN LTD. * ESSEX, CT" mark calls to mind the legend of the “old Leather [M]an, … a vagabond [who] was famous for the leather suit of clothes he wore” and who became "well-known" in the neighboring villages and towns of Essex, Connecticut. 

TTAB recently affirmed a Section 2(d) refusal to register the UGLY DOG SALOON mark for “Bar and restaurant services; catering services” (with “saloon” disclaimed), in view of the registered UGLY DOG mark for “alcoholic beverages, namely, distilled spirits; alcoholic cocktail mixes.”

The court also found a hundred examples of misdirected inquiries between "Punchbowl" and "Punchbowl News," out of tens of thousands of queries, were "de minimis" and did not show actual confusion. Furthermore, "Plaintiff has not identified a single customer who purchased (or came close to purchasing) the wrong product as a result of confusion between the parties' services."

[A] reasonable observer would understand that JKL showed the Videos to comment on the willingness of Santos -- a public figure who had recently been expelled from Congress for allegedly fraudulent activity including enriching himself through a fraudulent contribution scheme -- to say absurd things for money.

Although the marks were highly similar, the TTAB held that this is “outweighed by the findings that the services are unrelated, the channels of trade and classes of purchasers do not overlap, and consumers of both Applicant’s and Registrant’s services will exercise more than ordinary care in their purchasing decisions.”

“the evidence suggests that consumers of jewelry will look not just to the NAMASTE component of Applicant’s mark to identify and distinguish the source of the goods, but also to the other parts of the marks, particularly the phrase BY APRIL STOLF in Applicant’s mark, which identifies the designer.”

the Board recently granted a petition for cancellation of Fieldvine's registration on the Supplemental Register for the mark PERMITS.COM for construction permit services based on the prior use of the PERMIT.COM mark by Petitioner State Permits for identical services beginning five years earlier, even though Petitioner State Permits did not prove acquired distinctiveness

The on-sale bar applies when a patentee sells, before the one-year critical date, products made using a secret process.

Fifth Circuit affirmed having "rejected the theory that if a defendant's website targeted the entire United States, it necessarily targeted Louisiana." 

who is given access to such information, and in what numbers, are among the most important factors in assessing both whether the information was generally available and the reasonableness of efforts to maintain its secrecy

retail store activities featuring only a party’s own goods are indeed “services” under trademark law. Blizzard Entertainment, Inc. v. Ava Labs, Inc.,

specimen showing the GABBY'S TABLE mark in use with providing “referrals of products for sale by third parties on their websites” does not show use for the “on-line retail store services”

AIR and 4IR were similar in appearance because the number 4 may be presented in a variety of manners that closely approximate the letter A.

The Board recently affirmed that reckless disregard satisfies the requisite intent for fraud on the USPTO in trademark matters, citing Chutter.

in connection with “Components for air conditioning and cooling systems, namely, evaporative air coolers,” . . . . "the identification of goods covers evaporative air coolers that are components of air cooling systems" rather than "component parts for evaporative air coolers."

Many states have now passed laws prohibiting bad faith assertions of patent infringement. One example is Colorado Revised Statute 6-12-102, titled "Concerning Prohibited Communications Regarding Patents." Some examples of bad faith include falsely saying that litigation has already been filed; or...

In Appliance Liquidation Outlet LLC v. Axis Supply Corp., No. 23-50413, — F.4th — (5th Cir. June 21, 2024), the Fifth Circuit affirmed that competitor's use of “Appliance Liquidation” infringed Plaintiff ALO's common law trademark for “Appliance Liquidation Outlet” in San Antonio. Although “Appli...

Thomas P. Howard LLC is proud to announce that the June/July 2024 issue of Landslide magazine, a publication of the American Bar Association, includes an article written by James Juo. The article, "One-Bite Rule for Rogers After Bad Spaniels," discusses the Rogers test with respect to the title ...

"music lessons and live musical performances are inherently related and complementary services as music students showcase what they have learned in recitals, i.e., live musical performances."

knowledge of the existence of certain documents and ‘using' that knowledge to seek disclosure of those documents outside of the litigation did not constitute use of the documents or their contents

Section 2(c), 15 U.S.C. § 1052(c), bars the registration of a mark that “[c]onsists of or comprises a name . . . identifying a particular living individual except by his written consent.”  Steve Elster filed a trademark application to register TRUMP TOO SMALL for “shirts,” which the USPTO refuse...