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In LeBron James’ house, Tuesday nights mean one thing: Tacos. In a series of Instagram posts last year, the NBA superstar gleefully announced to his 50-plus million followers that he and his family were enjoying the tradition of eating tacos on Tuesday. It picked up enough attention that James decided to file an intent-to-use trademark application for TACO TUESDAY, including for “advertising and marketing services,” “podcasting services,” and “online entertainment services” (see, Ser. No. 88579771). But as the New York Times, Los Angeles Times, and numerous other outlets reported, the application was refused by the United States Patent and Trademark Office (USPTO) in a Sept. 11, 2019 office action. One reason given for the refusal was that the applied-for mark did not “function as a trademark.” See, http://bit.ly/39JPoO7.
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Eliminating Willfulness as a Prerequisite to Recovering an Infringer’s Damages in Dilution Cases
By Sarah Benowich
Romag Fasteners, Inc. v. Fossil, Inc.
The Supreme Court, settling a circuit split, held that, although highly important, willfulness is not a prerequisite for a trademark infringement plaintiff to obtain a profits award.
U.S. Supreme Court Rejects ‘Defense Preclusion’ in Trademark Suit
By Anthony J. Dreyer
On May 14, 2020, the U.S. Supreme Court resolved a circuit split, finding that any preclusion of litigation defenses must comply with traditional res judicata principles, and ruling that Lucky Brand was not precluded from asserting its defenses in its long-standing trademark litigation against Marcel Fashions Group
Artificial Intelligence and Copyright: Ownership and Fair Use
By Shaleen J. Patel and Sushmitha Rajeevan
Machine learning allows certain AI to create entirely new content based upon the materials it used to learn. In the process of creating new content, AI may create copies of copyrighted works in memory storage as a byproduct of its overall output sequence. This article explores authorship and ownership of such AI-generated content, and to what extent, if any, can copyrights be infringed upon when AI reproduces copyrighted works for machine learning.
By Rudy Kim and Chris Han
Holding that the parties’ executed agreement mooted the issues in the case, the Federal Circuit recently reversed a district court’s decision to grant summary judgment of non-infringement despite the parties’ agreement. The decision builds upon prior Federal Circuit case law giving effect to settlement agreements.
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