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It is hard to imagine the current U.S. Supreme Court agreeing on something as simple as their lunch order in a time when 5-4 decisions feel like the norm. So, when it unanimously agrees, one might conclude that the question at hand was not very difficult. Not so here. In Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, No. 17-571 (March 4, 2019), the Supreme Court resolved a circuit split decades in the making by holding that a copyright is not “registered” within the meaning of the Copyright Act unless and until a registration certificate actually has issued. The Supreme Court’s short opinion upheld an Eleventh Circuit decision, and undertook no more than a simple statutory construction analysis, finding that the plain language of the Copyright Act cannot be ignored because of hypothetical ill effects, especially ones fully within the purview of Congress to fix. A plaintiff cannot sue for copyright infringement until registration has issued, or been denied by the Copyright Office; a mere pending application will not suffice.
By David S. Gold
Branding is not a new concept, nor are the various intellectual property laws that protect brands. What is new to most is how this burgeoning industry can take advantage of those laws within the context of state and federal restrictions.
By Tom Gushue
The owner of a commercially successful patent may have competing desires. On one hand, the patent owner wants to protect the patent and secure its maximum benefit; on the other hand, the patent owner wants to avoid enforcement litigation with competitors because it is expensive and puts the patent at risk.
By Glenn E.J. Murphy
Many observers greeted the passage of the AIA into law as a long-overdue overhaul of U.S. patent law that aligned it with patent systems prevailing in the rest of the world. Who knew what mischief just seven of the AIA’s more than 25,000 words contained? The U.S. Supreme Court answered earlier this year.
By Norman C. Simon and Patrick J. Campbell
The decision in Romag Fasteners v. Fossil will bring welcome uniformity, ending the status quo where eligibility to recover profits under the Lanham Act depends on which court is deciding the dispute