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Nontraditional Trademarks: The Flavor of the Month
Recently, in a case of first impression, the Trademark Trial and Appeal Board refused to grant trademark protection to the flavor of an antidepressant tablet on the grounds that the flavor was functional and incapable of serving as a mark. In re N.V. Organon, 79 USPQ2d 1639 (TTAB 2006). The decision is a departure from the trend of extending protection to nontraditional trademarks. Although the Board left the door open to the possibility of registering flavor as a trademark, it made clear that future applicants will face significant challenges in registering such marks, including: 1) proving that a flavor has acquired secondary meaning; 2) overcoming the difficulties inherent in protecting a flavor due to the subjective nature of taste; and 3) proving that a flavor functions as a source indicator despite the fact that consumers are not exposed to a product's flavor prior to purchase.
Trademark protection in the United States was typically reserved for words, numbers, logos, and other traditional source identifiers. Gradually, however, courts recognized that a universe of things other than words and symbols qualify as trademarks because '[i]t is the source-distinguishing ability of a mark ' not its ontological status as color, shape, fragrance, word or sign ' that permits it to serve' as a trademark. Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 34 USPQ2d 1161 (1995). Today, the U.S. Patent and Trademark Office ('USPTO') and federal courts recognize less conventional marks, often referred to as 'nontraditional marks,' which can include the configuration, sound, color, scent, or motion associated with a product or service. Unlike traditional word and logo marks, however, nontraditional mark owners may encounter obstacles related to functionality and secondary meaning in their efforts to protect their marks.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.