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Section 35 of the Lanham Act, 15 U.S.C. §1117(a), provides a remedy in false advertising, trademark infringement and dilution cases allowing for a plaintiff’s recovery of illicit profits earned by a defendant that are attributable to its wrongful conduct. For more than two decades, Lanham Act plaintiffs in the Second Circuit have been required to make a showing that the defendant engaged in willful misconduct as a prerequisite to a disgorgement award. While this approach is consistent with that of the First, Eighth, Ninth, Tenth, and District of Columbia Circuits, no such requirement exists in the Third, Fourth, Fifth, Seventh, or Eleventh Circuits, which allow disgorgement as a remedy without requiring a threshold showing of willfulness. Rather, the defendant’s intent is merely one factor in an analysis under “principles of equity” in those circuits. See, 15 U.S.C. §1117(a).
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By Christine K. Au-Yeung
NFTs have been all the rage in the world. So what exactly are NFTs, and how do they reconcile with the basic tenets of intellectual property law?
By Shaleen Patel
The Court cleared Google of copyright infringement in terminating a 16-year long dispute as to whether Google’s Android mobile platform had infringed Oracle’s Java programming language’s copyright. However, the Court did not answer the question of whether specific components of computer software qualifies for copyright protection at all.
By Chidera Anyanwu and Chloe Delehanty
In some instances the appearance of third-party intellectual property on items purchased, owned and customized by the purchaser may be legal under the doctrines of first sale and fair use.
By Jeffrey Ginsberg and Matthew Weiss
Federal Circuit: The Doctrine of Equivalents Is Not a Binary Choice
Federal Circuit: No Estoppel for Party That Joined IPR