USA – Page 2 – IP Law Watch

Mind the Gap: Patagonia Sues Gap For Copying Fleece Design

Nov 28 2022

High-end outdoor clothing brand Patagonia Inc is taking on fast fashion retailer Gap for copying its “iconic” fleece jacket design. Patagonia Inc has filed court proceedings in the Federal Court.

In a complaint filed on 22 November 2022, Patagonia alleges that Gap willfully and deliberately copied the fleece design through the creation and sale of its “Mockneck Pullover” jackets, mimicking the flap pocket and rectangular logo of Patagonia’s classic “Snap-T” fleece jackets (shown below).

FTC Imposes Multi-Million Dollar Penalties for Deceptive Consumer Reviews; Best Practices Reminders on Endorsements and Testimonials

May 24 2022

In a widely distributed Notice of Penalty Offense sent to over 700 companies last year, the Federal Trade Commission (“FTC”) warned businesses about use of fake endorsements and consumer reviews. Forewarned should be forearmed.” This is a continuing reminder to companies to have systems in place to ensure endorsements and reviews comply with FTC guidelines. Companies that are found to be in violation after receiving a “we’re watching you” letter can face civil penalties of up to $46,517 per violation.

Recipients of the FTC’s letter included major consumer products companies, retailers, and advertising agencies. Recipients were not accused of any wrongdoing but were put “on notice” of their responsibilities under the FTC Act and the Commission’s increased focus on specific advertising practices, particularly endorsements.

“Levitating” Lawsuits: Understanding Dua Lipa’s Copyright Infringement Troubles

Mar 21 2022

Even global stardom will not make copyright woes levitate away from British superstar Dua Lipa. The pop icon is making headlines following a week of back-to-back, bi-coastal lawsuits alleging copyright infringement with her hit “Levitating.” First, on Tuesday March 1st, members of reggae band Artikal Sound System sued Dua Lipa for copyright infringement in a Los Angeles federal district court¹. Then, on Friday March 4th, songwriters L. Russell Brown and Sandy Linzer filed their own copyright infringement lawsuit against the pop star in a New York federal district court². Both lawsuits were filed claiming violations of the Copyright Act, 17 U.S.C. §§ 101 et seq.³

Name and Shame On Instagram – The ASA’s New Tactic For Non-Compliant Influencers

Feb 08 2022

In June 2021, the UK’s Advertising Standards Authority (ASA) began naming and shaming certain influencers for “consistently failing to disclose ads on their Instagram accounts, despite repeated warnings and help and guidance on sticking to the rules” on their website (see here).

The name and shame list was created as a result of the ASA Influencer Monitoring report, which found inconsistent ad disclosure by influencers on Instagram through Stories, posts and Reels, with the disclosure rules being followed only 35% of the time (see here). The influencers listed on the webpage are subject to enhanced monitoring and remain on there for a minimum of three months.

Substance Over Form: The Importance of Substantive Grounds in Parallel District-Court Litigation and Prior Petition IPR Denials in OpenSky Indus., LLC v. VLSI Tech. LLC

Jan 09 2022

On 23 December 2021, the Patent Trial and Appeal Board (“the Board”) instituted inter partes review (IPR) of U.S. Patent No. 7,725,759 B2 (“the ’759 patent”). See OpenSky Indus., LLC v. VLSI Tech. LLC IPR2021-01064, Paper 17 (Dec. 23, 2021). Petitioner OpenSky Industries, LLC (“OpenSky”) relied on expert declarations of Dr. Sylvia D. Hall-Ellis and Dr. Bruce Jacob originally filed by Intel Corporation in two other IPR proceedings (“Intel IPRs”).¹ Indeed, the declaration included the same coversheet that accompanied the declaration in the Intel IPR. The Board analyzed OpenSky’s Petition under §314(d) and §325(d), declining to deny institution, finding, in part, that since Fintiv and General Plastic did not warrant discretionary denial, the arguments, which were almost identical to those made in the Intel IPRs, deserved to see their day in court at the PTAB.

Federal Circuit Further Clarifies Venue in Hatch-Waxman Cases

Nov 14 2021

Last year, in Valeant Pharmaceuticals North America LLC v. Mylan Pharmaceuticals Inc., the Federal Circuit confirmed that 28 U.S.C. § 1400(b) is the sole venue provision for domestic defendants in Hatch-Waxman actions.¹ On Friday 5 November 2021, the Federal Circuit provided even greater clarity on venue rules in such cases, concluding that, for venue purposes, only submission of the ANDA qualifies as an act of infringement, not any action related to the submission.²

USPTO Proposes Rulemaking to Implement Provisions of the Trademark Modernization Act of 2020

May 24 2021

On 18 May 2021, the U.S. Patent and Trademark Office (USPTO) published a notice of proposed rulemaking concerning the Trademark Modernization Act of 2020 (TMA). The USPTO proposed to amend the rules to implement certain provisions of the TMA, as detailed below. The proposed new and amended rules:

establish procedures and fees for ex parte expungement and reexamination proceedings
provide nonuse grounds for cancellation before the Trademark Trial and Appeal Board (TTAB)
establish flexible office action response periods, and
amend the existing letter-of-protest rule to indicate that letter-of-protest determinations are final and nonreviewable.

Amendments are also proposed for the rules concerning the suspension of USPTO proceedings and rules governing attorney recognition in trademark matters. Finally, a new rule is proposed to address procedures regarding court orders cancelling or affecting registrations. The USPTO must receive written comments regarding these proposed rules on or before 19 July 2021.

Protecting Animated Logos – LA28 Ushers In A New Era

Oct 05 2020

The Los Angeles Organizing Committee for the 2028 Olympic & Paralympic Games (LA28) has recently unveiled the official LA28 emblem, which, for the first time, is an animated emblem consisting of multiple logos (shown below). “Built for the digital age”, LA28 has designed the emblem to “evolve over time, reflecting [Los Angeles’] spirit of limitless possibility”.

Deep fakes, inventorship and ethics – WIPO revised issues paper on Artificial Intelligence

Sep 30 2020

One thing is clear about artificial intelligence (AI) and intellectual property (IP) at the moment: there are more questions than answers. Who should be author? Who is responsible for a work’s liability? What about moral rights? Is a computer programme capable of making an ‘inventive step’ or forming an ‘intellectual creation’ normally reserved for humans? And for those Matrix fans – should we let machines make decisions for us, lest we become seen as the planet’s true virus?

In September 2019, the World Intellectual Property Organisation (WIPO) launched a much-needed conversation on IP and AI, and consulted with member state representatives on the potential impact of AI on IP. Over the course of the consultation, WIPO received more than 250 responses from a wide range of global stakeholders.

PTAB Decisions Can Now Be Nominated Anonymously

Sep 24 2020

The Patent Trial and Appeal Board (“PTAB”) now allows “individuals to anonymously nominate any routine decision of the Board for designation as precedential or informative.” (Click here for PTAB Decision Nomination form.)

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