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Meme Infringement

Posted by James Juo | Jun 13, 2024 | 0 Comments

A meme is an amusing or interesting item (such as a picture or video, often captioned) that is spread widely online especially through social media. See Merriam-Webster Online Dictionary (accessed May 19, 2024). One well-known meme is “Success Kid” which is a photo that Laney Griner took of her...

Famous Without Survey

Posted by James Juo | Jun 05, 2024 | 0 Comments

A survey offered in litigation before the Board is not a freestanding piece of evidence, but instead is offered as the basis for expert opinion testimony.

Design Patent Obviousness Guidance

Posted by James Juo | Jun 04, 2024 | 0 Comments

In LKQ Corp. v. GM Global Tech. Operations LLC, No. 21-2348, (Fed. Cir. May 21, 2024) (en banc), the Federal Circuit replaced the Rosen-Durling test with a more flexible test. The USPTO has since issued a memorandum to provide guidance to examiners for design patent applications. The memo states...

Owning Social-Media Accounts

Posted by James Juo | Jan 22, 2024 | 0 Comments

Does a business or organization-related social media account belong to the business entity or to the individual who created it? The Second Circuit has held that this novel legal question should be answered based on whether the person who created the social media account used her personal informat...

Staying All But One in Colorado

Posted by James Juo | Jan 19, 2024 | 0 Comments

GS Holistic manufactures and distributes a glass gravity infuser under the brand name Stündenglass, the other is a line of portable hand-held vaporizers under the G Pen brand. In July and August of 2023, GS Holistic filed more than 50 nearly identical small-dollar trademark infringement cases aga...

Protect Business By Registering Trademark

Posted by Thomas P. Howard | Jan 19, 2024 | 0 Comments

A trademark can be a phrase, word, design, symbol, or combination of all of these, that allows people to identify your services or goods. Trademarks are how customers can recognize you and distinguish you as separate from competitors, in addition to providing you with legal protection for your br...

Legal Documents Derived from Other Legal Documents

Posted by James Juo | Jan 17, 2024 | 0 Comments

When creating a new derivative work based on another work, there must be “sufficient nontrivial expressive variation” in the new work in question, so as “to make it distinguishable from [an] underlying work in some meaningful way.” Schrock v. Learning Curve Int'l, Inc., 586 F.3d 513, 521 (7th Cir...

Only One Single Biomolecule in the Preamble

Posted by James Juo | Jan 16, 2024 | 0 Comments

The preamble of a patent claim typically is not given much weight, but that is not always the case. In Pacific BioSciences of California, Inc.  v. Personal Genomics Taiwan, Inc., No. 22-1410, — F.4th — (Fed. Cir. Jan. 9, 2023), the preamble for the claims in U.S. Patent No. 7767441 included the p...

One S, Two S, Read How BOSCOIN Blew Away BOSSCOIN

Posted by James Juo | Jan 12, 2024 | 0 Comments

Where the identified goods or services are legally identical in part, “the degree of similarity necessary to support a conclusion of likely confusion declines.” Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); see also In re Aquamar, Inc., ...

Shape of Color Mark for FRUITY PEBBLES Too Broadly Claimed

Posted by James Juo | Jan 11, 2024 | 0 Comments

The burden of proving that a color mark has acquired distinctiveness is substantial. See In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 227 USPQ 417, 424 (Fed. Cir. 1985) (“By their nature color marks carry a difficult burden in demonstrating distinctiveness and trademark character.”). As ex...

CAPTAIN CANNABIS Becomes TTAB Precedent

Posted by James Juo | Jan 05, 2024 | 0 Comments

The Trademark Trial and Appeal Board has redesignated its prior September 6, 2022 decision in Andrusiek v. Cosmic Crusaders LLC, Cancellation No. 92064830, as a precedent. This decision regarding the “Captain Cannabis” trademark was previously blogged here. The Federal Circuit later affirmed the ...

IPR and Forum Selection Clauses

Posted by James Juo | Jan 04, 2024 | 0 Comments

A forum selection clause in a contract could bar a party from initiating an inter partes review (“IPR”) challenging a patent. In Dexcom, Inc. v. Abbott Diabetes Care, Inc., No. 23-1795, — F.4th — (Fed. Cir. Jan. 3, 2024), the Federal Circuit found that a license's forum selection clause stating t...

Barcoded Claim Construction

Posted by James Juo | Jan 03, 2024 | 0 Comments

The Federal Circuit recently construed the claim term “barcode” in K-Fee System GmbH v. Nespresso USA, Inc., 2022-2042, — F.4th — (Fed. Cir. Dec. 26, 2023). K-fee owns U.S. Patent Nos. 10,858,176, 10,858,177, and 10,870,531, which all share the same specification. The district court had granted N...

Public Domain Welcomes Mickey Mouse from Steamboat Willie

Posted by James Juo | Jan 02, 2024 | 0 Comments

Last year, the public domain welcomed The Great Gatsby. This year, it will be Steamboat Willie, a 1928 short film featuring the first appearance of Mickey Mouse. As a general rule, copyright protection lasts for the life of the author plus an additional 70 years for works created after January 1,...

Bona Fide Intent to Use a Trademark

Posted by James Juo | Dec 28, 2023 | 0 Comments

An intent-to-use trademark application under Section 1(b) may be filed by a person who has a “bona fide intention” to use a trademark in commerce. A subjective, speculative intent to use the mark, however, is insufficient. For a bona fide intent to use, the focus is on objective evidence of real-...

Unitary Trademarks Are Inseparable

Posted by James Juo | Dec 27, 2023 | 0 Comments

A unitary trademark is a mark whose component elements are so integrated or merged together that “a single and distinct commercial impression” is created. Dena Corp. v. Belvedere Int'l, Inc., 950 F.2d 1555, 1561, 21 USPQ2d 1047, 1052 (Fed. Cir. 1991) (noting that the elements of a unitary mark ar...

False Advertising Requires Evidence of Injury

Posted by James Juo | Dec 22, 2023 | 0 Comments

False advertising claim under Section 43(a) of the Lanham Act requires: a false statement of fact by the defendant in a commercial advertisement about its own or another's product; the statement actually deceived or has the tendency to deceive a substantial segment of its audience; the dec...

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