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For floor plans that embody an architectural work such as a single-family house, the arrangement and composition of spaces and elements in the design of the house may be protectable by copyright, but not individual standard features. Indeed, the Copyright Act defines “architectural works” as foll...

A trademark may be refused registration as primarily geographically descriptive under Section 2(e)(2) of the Trademark Act, 15 U.S.C. § 1052(e)(2), based on the following: the primary significance of the term in the mark sought to be registered is the name of a place that is generally known to...

State consumer-protection statutes typically require some showing that members of the public have been deceived. For example, the Colorado Consumer Protection Act (“CCPA”) is the requirement that the unfair or deceptive trade practice has a significant impact on the public. C.R.S. § 6-1-105; Hall...

The character of Superman famously has become associated with certain symbols and indicia which, in the public mind, are inextricably linked with the Superman character and which function as trademarks. Among them include the “S” shield design (i.e., letter “S” inside a five-sided shield), and th...

The TTAB reversed a Section 2(d) refusal of the applied-for GUJI MANE for “Coffee; Coffee beans; Ground coffee beans; Roasted coffee beans; Unroasted coffee” in view of the registered GUJI mark for “coffee,” because “Guji” is a geographic place known for coffee. In re Cxffeeblack LLC, Ser. No. 90...

The TTAB has affirmed that the stylized GOODBATHS mark in block letters for “Body cream; Body lotion; Body scrub; Body wash; Fragrances; Non-medicated soaps for the body; Non-medicated soaps for the hands; Non-medicated skin care preparation, namely, body mist” in Class 3, is likely to cause conf...

The TTAB has affirmed that the mark SMALL WINS for “sweets and candies, namely, gummies and soft candies,” is likely to cause confusion with the registered mark BIG WIN for “candy.” In re Sugar Free Specialties, LLC, Ser. No. 90706411 (TTAB Dec. 7, 2022). “[W]hile the terms WINS and WIN are highl...

A classic example of a color as a trademark is pink for fiberglass insulation. In re Owens-Corning Fiberglas Corp, 774 F.2d 1116, 1123 (Fed. Cir. 1985) (finding the color pink “has no relationship to production of fibrous glass insulation” and “serves the classical trademark function of indicatin...

In the Tenth Circuit, a limited liability company (“LLC”) is not a corporation for purposes of diversity jurisdiction—instead, LLCs are “unincorporated associations” whose citizenship is based on each of the entities' members for purposes of diversity. See Mgmt. Nominees, Inc. v. Alderney Inv., L...

An intent-to-use trademark application filed by Boot Royalty Company for the CUSHION COMFORT mark initially identified “Footwear; clothing; headwear” as the goods. During prosecution, however, the identification of goods was amended to expressly exclude socks (i.e., “all of the foregoing excludin...

In 1985, Dana Gleason co-founded Dana Design, Ltd., which became a leader in the outdoor backpack industry. In 1992, Dana Design Ltd. registered the word mark DANA DESIGN for “sporting goods sold exclusively in sporting goods, outdoor and mountaineering shops; namely, backpacks, frames for backpa...

A self-represented or pro se defendant was found liable for infringing plaintiff's NORTHSTAR MOVING trademark, and a permanent injunction was issued for him to cease using “NorthStar Movers” with its moving services. The Court's Final Judgment also awarded $13,059,727.60 for federal trademark inf...

The American Bar Association's Standing Committee on Ethics and Professional Responsibility issued its Formal Opinion No. 503 on November 2, 2022, which concluded that a lawyer may ethically respond to a group email from opposing counsel with a “reply all” message even if the initiating group ema...

The right to use “Floribama” on TV “lies at the crossroads of the Lanham Act and the First Amendment.” MGFB Properties, Inc. v. ViacomCBS, Inc., No. 21-13458, slip op. at 1 (11th Cir. Nov. 29, 2022). Namely, whether the title of the MTV Floribama Shore reality television show infringed the tradem...

For trademark purposes, a “double entendre” is an expression that has a double connotation or significance as applied to the mark's goods or services, such that it is not merely descriptive. E.g., In re The Place Inc., 76 USPQ2d 1467, 1470 (TTAB 2005) (defining a “double entendre” as an “ambiguit...

Dynamic keyword insertion (“DKI”) is a form of pay-per-click advertising that inserts a purchased keyword into the content of a search engine ad when that keyword happens to be used in someone's search query. While an effective way to automatically update search engine advertising copy to include...

The TTAB recently held that consumers were likely to understand the “V” in FLVSH to be an inverted “A” and “read” the mark as FLASH; such that the marks will make the same commercial impression and have the same connotation. In re Uri Charles, Ser. No. 90235507 (TTAB Nov. 10, 2022). Even coined t...

The Ninth Circuit has ruled that service of process for a lawsuit against a foreign company that affects a U.S. trademark registered to that foreign company, can be made through the Director of the U.S. Patent and Trademark Office (“USPTO”). Under 15 U.S.C. § 1051(e), a trademark applicant domici...

The issue in trademark infringement is not the alleged misappropriation of creative expression, but rather, the likelihood of confusion in the marketplace as to the source of goods or services. But the First Amendment limits the application of trademark law with respect to an expressive work. See...

The First Amendment limits the Lanham Act's application against the title of an expressive work. See Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989); see also Gordon v. Drape Creative, Inc., 909 F.3d 257, 269 (9th Cir. 2018); Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1241 (9th Cir. 2013). UFO v. ...

Time to “fall back” an hour on Sunday, November 6, 2022. An annual ritual that may change with the Sunshine Protection Act that passed the U.S. Senate earlier this year to make Daylight Saving Time permanent year-round. According to a YouGov poll taken in March 2022, 64% of Americans want to stop...

In a federal lawsuit, a corporation may be served by “delivering a copy of the summons and of the complaint to an officer or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so require...

“In Colorado, the doctrine of quantum meruit is synonymous with the doctrine of unjust enrichment.” Cahey v. IBM Corp., No. 20-cv-00781-NYW, 2020 WL 5203787 (Sept. 1, 2020) (citing Dudding v. Norton Frickey & Assocs., 11 P.3d 441, 444 (Colo. 2000). “Quantum meruit is an equitable theory of recove...

Two key DuPont factors for likelihood of confusion under Section 2(d) of the Trademark Act are the similarity or dissimilarity of the marks and the goods or services. Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by §...

Civil theft exists when the criminal state of mind—to permanently deprive the owner of the benefit of their property—exists. E.g., In re Est. of Chavez, 2022 COA 89M, ¶ 47 (Colo. App. Aug. 25, 2022). When a perpetrator takes money in an unauthorized manner, post-hoc characterizations, such as cal...