registration
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Never Underestimate the Burden of Proof
Trademark examining attorneys occasionally make mistakes and often the error can’t be challenged once the trademark is registered.* In Vujovic v. Octop there was a clear procedural error and it was most likely outcome determinative. Two people worked together at a company called “Octop.” The opinion doesn’t have much information (because most of the evidence… Continue reading
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Common Law Rights and the Geographic Scope of Registration
Oh no, I don’t think so. The Camellia Grill was a New Orleans restaurant that closed in 2005 after Hurricane Katrina. Various aspects of the business were owned by various entities owned by Michael Shwartz; for our purposes we’ll just refer to them all as “Shwartz.” In August, 2007, Shwartz entered into several agreements with… Continue reading
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When Is an Infringed Trademark “Registered”?
A claim for trademark infringement can be brought under two different sections of the Lanham Act, Section 32 for infringement of registered trademarks and Section 43(a) for infringement of unregistered trademarks.* Registration provides some evidentiary benefits, like prima facie evidence of distinctiveness, so if a plaintiff doesn’t have a registered trademark then it will have… Continue reading
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STOLICHNAYA Case Still Alive, Just Barely
Oh, Federal Treasury Enterprise Sojuzplodoimport, without you I wouldn’t be so good at spelling “Stolichnaya.”* I’ve lost count of the opinions talking about who owns the STOLICHNAYA trademark and we’re now on the second lawsuit over it. It all stems from a disputed claim of ownership of the STOLICHNAYA mark in the United States. To… Continue reading
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A Short Lesson on Trademark Coexistence Agreements
The restaurants in the Benihana chain have two different owners, divided by territory. Defendant Benihana, Inc. (“BI”) owns the BENIHANA trademark in the United States, Central America, South America, and the islands of the Caribbean, the “Territory.” Plaintiff Benihana of Tokyo, Inc. (alert! noisy autoplay link) (“BOT”) owns the rights to the BENIHANA trademark outside… Continue reading
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9th Circuit Agrees with Copyright Office
There is a rash of lawsuits brought by photographic agencies against textbook publishers, claiming that the publishers underreported the number of copies of books that were published. The publishers are fighting back and there are two main grounds for attack—that the requirements for registration were not met and that the individual photographers’ assignments to the… Continue reading
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Someone Else Can Have Registered the Copyright
The nice thing about appeals court decisions is that they’re often short. The court generally doesn’t have to plow through a kitchen sink of claims and instead gives us a brief education on a fine point of the law. In Smith v. Casey from the 11th Circuit, the issue is exactly who has to have… Continue reading
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Check All the Boxes
When we last visited DeliverMed Holdings, LLC v. Schaltenbrand, plaintiff DeliverMed had lost on all claims, including on some copyright and trademark theories. DeliverMed appealed the holdings that it was not the owner of the copyright in this logo and that the copyright registration was invalid. The district court was colorful in its description of… Continue reading
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