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The Lanham Act protects trademarks and trade dress by creating civil liability for unauthorized uses of valid marks and trade dress that are likely to cause consumer confusion. The Act’s protections do not apply, however, to speech that is protected by the First Amendment. In a case that may have significant implications for the ability of mark holders to enforce their marks against many types of products, the U.S. Court of Appeals for the Second Circuit is now considering whether consumer products such as sneakers can be considered “expressive works” to which First Amendment protections can apply. Vans v. MSCHF Prod. Studio, No. 22-CV-2156 (WFK) (RML), 2022 WL 1446681 (E.D.N.Y. April 29, 2022), argued, No. 22-1006 (2d Cir. Sept. 28, 2022). We report here on that case.
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By Christopher P. Bussert
This article explores developments (both positive and negative) in the post-TMA world in which courts have wrestled with implementation of the presumption of irreparable harm in trademark cases.
Federal District Court Denies Copyright to AI-Generated Art Piece
By Richard L. Hathaway
Recognizing that U.S. “copyright law protects only works of human creation,” the court determined that the Copyright Office “acted properly in denying copyright registration for a work created absent any human involvement.”
Supreme Court to Consider If Lanham Act’s Name Trademark Prohibition Violates First Amendment
By Catherine Nyarady and Crystal Parker
This case has important implications not only for trademark registrations, but also potentially in determining collisions between trademark rights, rights of publicity, and freedom of speech considerations in future cases.
Trade Secret Protection for Consumer-Facing Products
By Stephen M. Kramarsky and John Millson
Intellectual property laws, including copyright, patent, trademark and trade secret laws can provide avenues for companies to protect their IP. But it’s not always clear what assets are protectable and what are not.
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