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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.
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By Li-Jen Shen, Cory Smith and George C. Chen
The Trademark Trial and Appeal Board (TTAB) has finally filled a gap left by the U.S. Court of Appeals for the Federal Circuit in the standard for finding deceptive intent when trying to prove fraud on the USPTO.
Ninth Circuit Finally Resolves Pre-1972 Sound Recordings Royalties Issue
By Robert W. Clarida and Robert J. Bernstein
The Ninth Circuit ruling in Flo & Eddie may turn out to be last stop on the long and winding road the owners of pre-1972 recordings have traveled in their efforts to obtain compensation for public performances through platforms like Sirius.
NFTs and Virtual Patent Marking
By Willem Klein
Patent marking is an important step in the patent lifecycle as it is generally required to seek damages from infringers prior to the date the suit is filed. While virtual marking has somewhat reduced the overhead of marking, it suffers from the same problems all Internet-based evidence runs into in court: websites are ephemeral and have intermittent accessibility, as well as poor public logging of when information existed where, and for how long. NFTs on a digital blockchain could potentially overcome these hurdles, while still providing the benefits of virtual marking via websites.
By Joshua R. Stein and Jeffrey S. Ginsberg
Pair of Federal Circuit Decisions Address Standing to Appeal Adverse IPR Decision
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