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The Ninth Circuit held in VIP Prods. LLC v. Jack Daniel’s Properties, Inc., 953 F.3d 1170 (9th Cir. 2020), that VIP’s “Bad Spaniels” dog toy mimicking the appearance of a Jack Daniels whisky bottle was protected expression under the First Amendment, such that Jack Daniels’ infringement claim had to be assessed under the rigorous standard set forth in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). Under Rogers, Jack Daniels’ infringement claim could proceed only if the distiller showed that VIP’s use of the Jack Daniels’ trademarks and trade dress either: 1) is not artistically relevant to the toy; or 2) explicitly misleads consumers as to the source or content of the toy. Following a remand and then summary affirmance by the Ninth Circuit, No. 21-16969, 2022 WL 1654040 (9th Cir March 18, 2022), the Supreme Court granted certiorari on November 21, 2022 to consider the principal question whether humorous use of another’s mark on a commercial product should be assessed under Rogers or the traditional multipart test of likelihood of confusion. (The case also raises issues of trademark dilution not directly addressed here.)
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By Reid Knabe and Bita Rahebi
This article describes certain key developments in the period from passage of the CHIPS Act through the present day, and provides a brief survey of key grantmaking and investment activity by U.S. government agencies since passage of the Act.
Emerging Legal Terrain: IP Risks from AI’s Role In Drug Discovery
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This article explores the benefits and risks of AI-driven drug discovery from the legal perspective. Since the law governing IP rights in AI-driven drug discovery is still in its infant state, any future legal development is likely to have significant implications in many areas.
LLM Customization With A Path to Human Inventorship and Patent Rights
By Jim Soong
A statutory predicate to the contractual outcome regarding ownership of patent rights is the requirement of a sufficient contribution by a natural person in the effort that yielded the output. The issues implicated by this requirement are one development among more to come as patent law and policy try to catch up to proliferating AI technology.
Adidas Stripe Design Battle Reveals Intricacies of Trademarks In the Fashion World
By Nicole D. Galli, Laura Talley Geyer and Alexa Elder
Although the bitter legal battle between Adidas and Thom Browne is far from over on either side of the pond, the case illustrates the challenges of ensuring trademark protection for simple and widely employed design elements.
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