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The Third Circuit has adopted McCarthy’s “ownership” test in determining whether a manufacturer or distributor owns a trademark in the absence of an express agreement between the parties. In Covertech Fabricating, Inc. v. TVM Building Products, Inc. et.al., No. 15-3893 (3d Cir. 2017), the court adopted McCarthy’s test as the formal rule of the circuit, specifically replacing the “first use” test that typically decides trademark ownership disputes. The McCarthy test was first enumerated in Professor Thomas McCarthy’s seminal treatise on trademark law. See, McCarthy on Trademarks & Unfair Competition (4th ed. 2017). The Covertech case may prove to be a “win” for manufacturers as opposed to exclusive distributors when ownership of trademarks is not specified in their contract.
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