Lex Indicium

  • Choosing the Ideal Venue for IP Disputes: Recent Developments in Federal Case LawDecember 18, 2017

    The venue of a lawsuit can be a crucial, even dispositive, decision in managing the strategy of a successful outcome in an IP dispute. Defending a lawsuit on your home turf is often easier than in a distant state – defendants may be more inclined to settle lawsuits that are brought in inconvenient or hostile jurisdictions far from home. Moreover, venue can affect the adjudication of the merits of the dispute, since the various tests for infringement, and even the availability of injunctive relief, can vary by circuit. Accordingly, litigants will often try to tilt the possibility of success by considering all these variables before choosing where to file a case. However, recent developments in venue and jurisdictional law may impact a litigant’s ability to access favorable venues.

    The Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods Group Brands LLC radically changed the law regarding venue of patent lawsuits. Until July 2017, about 40% of patent cases were brought in the Eastern District of Texas. In Heartland, the Supreme Court ruled that defendants in patent cases could be sued only where they are incorporated, or where they have a regular or established place of business. … Keep reading

  • Does the Emperor Really Have No Clothes?December 11, 2017

    A Teachable Moment in the Way of the TRUMP Brand and Naked Licensing of Trademarks

     

    The current POTUS has a lot of things on his plate right now, and the status of his trademark rights (or, perhaps, more appropriately, the trademark rights of the Trump Organization) around the globe shouldn’t be top of mind. That said, the Trump Organization’s pattern of not controlling the quality of services that are provided under the TRUMP brand provides a teachable moment in the world of trademarks and branding.

    The news media have reported repeatedly about the Trump Organization’s penchant for distancing itself from TRUMP-branded projects that have failed, including those in Baja California, and Tampa and Fort Lauderdale, Florida, as well as developments outside the U.S. in Panama and Azerbaijan, among others. While the details of these projects vary, all of them follow a similar narrative. The Trump Organization involves itself in the promotion of an upcoming TRUMP-branded real estate development, and then, despite hype and ample purchases by willing consumers and investors seeking to own a piece of TRUMP real estate, the project never properly gets off the ground, the developers flee with the deposits, and the purchasers … Keep reading

  • IP Challenges for GanjapreneursDecember 04, 2017

    Like any industry, cannabusinesses and ganjapreneurs need to be thoughtful about protecting their proprietary material, in order to mitigate their risk of being ripped off – or worse, being accused of infringing other people’s rights. This post provides a brief overview of trademark and copyright issues to consider when developing and protecting your business in this space.

    Protecting Cannabusiness Branding

    If your product is king, then your brand is certainly queen. Your brand name, or trademark, tells consumers that a product or service comes from you and not your competitors. Accordingly, identifying and protecting the name of your new business could be fundamental to your success.

    Some Quick General Rules on Trademark Protection
    Regardless of your industry, under U.S. law, trademark rights involve a business’s use of a name, term, phrase, or logo in connection with the sale of specific goods and services. Generally, the first business to use a name in the marketplace is entitled to claim ownership of it. It is, however, possible to obtain rights beforehand, if an application for registration with the U.S. Patent and Trademark Office is filed. If your business adopts a trademark that is too similar to a mark used by an … Keep reading

  • The “Lowdown” on DMCA Regulations and Take-DownsNovember 27, 2017

    Chances are, if you have ever posted or published content on the web, or your company operates a website, you have heard the term “take-down notice.” Perhaps you have even been on the receiving end of such a notice, claiming that content on your website is owned by a third party, and that if you do not remove the content, your website will be taken down or a lawsuit will be filed claiming copyright infringement.

    These notices are part of a mechanism available to copyright owners—including those who have not registered their copyrights— under a U.S. law called the Digital Millennium Copyright Act.  This statute was enacted in the late 1990s as an attempt to bring the U.S. Copyright Act up to speed with society’s increased engagement via the Internet. The take-down procedure was introduced to provide a “safe harbor” for internet service providers that provide platforms for others to post content. Essentially, by following the procedures detailed in the DMCA, a website owner (or ISP) may be able to shelter him/herself from liability for infringement if a user posts infringing content, provided the website owner is not actively participating in or encouraging infringement and otherwise … Keep reading

  • To Refresh or Relaunch…That Is the QuestionNovember 20, 2017

    If you work in marketing, you know what a “brand refresh” is, and how it differs from a “brand relaunch.” Both can be equal parts perilously challenging and thrilling. And both can serve useful purposes, both in reminding customers about a product’s continued existence, and in introducing a product to a new audience as a way of increasing market share.

    Legally, most trademark lawyers will face brand refreshes and rebrands with some skepticism. Our traditional view, predicated on legal principles, is that trademarks are easier to enforce and maintain if nothing changes and the branding remains utterly consistent. Making changes that undermine consistency of use can result (albeit rarely) in a loss of rights, or at least a loss in priority. But a skillful refresh is marvelous, not just because it can manage to maintain the tradition (and enforceability) of the original brand, but because seemingly subtle changes to branding can result in profound and novel messages to consumers.

    Depending on scope and goals, the result of a refresh can be akin to renovating your house. You might add a new kitchen or a fresh coat of paint, and suddenly something that seemed tired is reborn and reinvigorated. … Keep reading

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