Podcasts about Lanham Act

This Day in Legal History: Magna Carta Sealed at RunnymedeOn this day in 1215, in a meadow at Runnymede on the south bank of the Thames, King John of England affixed his seal to a document the rebellious English barons had drafted, in which the king conceded a series of limits on his own royal authority. We call it Magna Carta — the Great Charter. The immediate political context was a baronial revolt against John's tax exactions for his disastrous French wars, and most of the sixty-three chapters as drafted in 1215 are concerned with the highly specific grievances of a feudal aristocracy: scutage, wardship, the inheritance fees of widows, the freedom of the church, the standardization of weights and measures in the king's markets. The two chapters that the centuries have remembered are 39 and 40. Chapter 39 says that no free man shall be taken or imprisoned or dispossessed except by the lawful judgment of his peers or by the law of the land. Chapter 40 says that to no one will the king sell, deny, or delay right or justice. The Charter was annulled by Pope Innocent III within ten weeks of sealing — the pope held that John, as a vassal of the Holy See, could not be bound by a treaty extracted under duress — and the country immediately collapsed into the First Barons' War. But John died in October 1216, his nine-year-old son Henry III's regents reissued the Charter as a tactical concession the next month, it was reissued again in 1217 and 1225, and by the late thirteenth century the 1225 version had been confirmed by successive kings as a foundational statute of the realm. Edward Coke, writing in the seventeenth century, transformed Chapter 39's “law of the land” into the doctrine of due process, and the founding generation of the American Republic picked up Coke's reading and wrote it directly into the Fifth and Fourteenth Amendments of the United States Constitution. The phrase “due process of law” in those amendments is the most consequential American inheritance from the Runnymede document. The principle the barons were trying to extract from a beleaguered king — that the law constrains the sovereign too — is the substrate on which everything we recognize as constitutionalism is built. Eight hundred and eleven years on, the principle is still the work.The Rhode Island travel-ban lawsuit we covered on June 8 took a sharp turn on Friday. Chief Judge John J. McConnell, Jr., of the District of Rhode Island held a status conference in Dorcas International Institute v. USCIS at which he was openly frustrated with the Justice Department for failing to immediately implement his June 5 vacatur of the four USCIS benefit-freeze policies for nationals of the thirty-nine travel-ban countries. The judge's message, in plain terms, was that vacatur under the Administrative Procedure Act is self-executing — the moment the order was entered, the policies ceased to exist, and the agency was obligated to resume processing affirmative benefits, asylum claims, and adjudicator-instruction reviews on the prior pre-freeze basis. The Trump administration, after the hearing, told the court it would comply, restart adjudications, and clear the backlog. It also did what defendants typically do when they have lost on the merits and lost again on compliance: it filed a notice of appeal with the First Circuit and asked the appellate court to stay the vacatur pending appeal. That is the live question now. The First Circuit's stay analysis runs through the standard Nken v. Holder factors — likelihood of success on the merits, irreparable harm, the balance of equities, and the public interest — and the administration's strongest argument on each is going to be familiar: the executive needs administrative breathing room to implement a travel ban, mass restoration of adjudications creates national-security risk, the harm to applicants is reversible if their adjudications are paused for a few more weeks. The plaintiffs' strongest counterarguments are also familiar: the policies were unlawful when adopted and the agency had no business adopting them, the harm to applicants from continued delay is concrete and accruing daily, and the First Circuit is not in the business of staying vacaturs of unlawful agency action in order to let the agency continue acting unlawfully. Watch the First Circuit's calendar this week. The stay motion is the next inflection point.Trump officials agree to resume asylum processing after being scolded by judge | The Washington PostGoogle filed suit on Friday in the U.S. District Court for the Southern District of New York against a China-based cybercrime network it calls the “Outsider Enterprise,” alleging that the network's members used Google's Gemini large-language model to generate the code, copy, and templates for a phishing-as-a-service platform that has built more than nine thousand fraudulent websites and sent two and a half million scam text messages in the two weeks ending June 1 alone. The complaint is significant for two reasons. First, it is, to Google's knowledge, the first time the company has affirmatively sued threat actors for using its own generative-AI product as the input to a scaled criminal operation, as distinct from the more usual posture of suing scammers who impersonate Google brands. The legal theories are a mix of Lanham Act false-designation-of-origin and trademark-infringement counts, Computer Fraud and Abuse Act counts based on Outsider's unauthorized access to Google services, breach-of-contract counts on the Gemini terms of service, and a RICO count. Second, the factual record will be a road map for the next decade of AI-misuse litigation. The complaint describes Telegram channels in which Outsider members trade prompts that get Gemini to write phishing code, a library of two hundred and ninety prebuilt templates impersonating brands ranging from the U.S. Postal Service to state DMVs to E-ZPass, and an FBI estimate that the broader campaign Outsider participates in has stolen roughly 3.87 million card numbers and caused $1.9 billion in losses since July 2023. The remedy Google is seeking is a permanent injunction shutting the operation down, plus domain seizures and account terminations across Google's services and at major U.S. carriers, which Google says it has been coordinating with the FBI, AT&T, T-Mobile, and Verizon. The deeper legal question the case may end up clarifying is whether and to what extent platforms can use private civil suits as the front-line enforcement mechanism against AI-augmented criminal activity that the public criminal-justice system has had trouble keeping up with.Google sues Chinese cybercrime ring that weaponized Gemini AI for phishing scams | TechCrunchA federal district judge in Washington on Friday issued a preliminary injunction barring the Trump administration from continuing to implement Executive Order 14253, the order under which the National Park Service had been scrubbing exhibits, signage, and online materials at sites administered by the Department of the Interior. The judge gave the administration three weeks to restore the materials it had already removed. The order at issue, signed in March, directed federal cultural agencies to identify and remove content that, in the executive's view, reflected “improper, divisive, or anti-American ideology” or “partisan” framing. In the months that followed, the National Park Service had taken down or altered displays addressing slavery, the Civil Rights Movement, the internment of Japanese Americans during the Second World War, climate change, and the histories of Native American dispossession at sites including the Stonewall National Monument, Independence Hall, and the Manzanar National Historic Site. The case is American Historical Association v. Department of the Interior, brought by historians' professional associations and a coalition of plaintiffs that includes affected park employees and visitor-experience contractors. The legal theory pleaded was multi-strand: First Amendment viewpoint discrimination as applied to government speech that has taken on a public-forum character, Administrative Procedure Act challenges on the ground that the agency failed to provide a reasoned basis for the removals and failed to consider statutory commands under the Organic Act of 1916, and a Federal Records Act challenge to the destruction of materials that constituted federal records. The judge held that the plaintiffs were likely to succeed on the First Amendment claim and the APA claim, found irreparable harm in the ongoing loss of public access to the underlying historical materials, and found that the public interest was best served by restoration. The administration is widely expected to appeal to the D.C. Circuit. In the meantime, the three-week restoration clock is running.Judge blocks Trump national parks order, calling it “censorship” | The Washington Post This is a public episode. 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What happens when a jury decides that “fair and skill-based” gaming claims may have been anything but? In this episode, we unpack the blockbuster $420 million false advertising verdict against mobile gaming company Papaya, where competitor Skillz convinced a New York jury that Papaya's marketing misled users by implying they were competing against real human players of similar skill levels while allegedly relying on bots and manipulated gameplay. The case—one of the largest Lanham Act verdicts in recent memory—highlights the growing legal and reputational risks facing gaming companies that market fairness, transparency, and skill-based competition in an industry already under increasing scrutiny from regulators, competitors, and consumers alike. Hosted by Simone Roach. Based on a blog post by Gonzalo E. Mon.

Send James and Sam a message or voicemailAI is now publishing podcasts at a pace that can outstrip humans, and we feel the knock-on effects in discovery, trust, and monetisation. We trace how copycats and AI slop farms exploit platform incentives, then map the few practical levers creators and companies can pull right now.• more AI-generated podcast launches than human launches on some days, and what that signals for the podcast industry• a copycat studio mimicking titles and artwork to siphon first listens and ad revenue• why near-copy metadata can evade simple copyright and trademark complaints• passing off, Lanham Act angles, and what lawyers say is actionable• DMCA designated agents for directories and hosts, and why safe harbour matters• trademarking a podcast name as a defensive move• Inception Point AI scale publishing hundreds of new shows per day and the risk of low-care health content• how programmatic advertising pays out on impressions even when listeners bounce fast• Podcast Index new feeds report and spam API as a filter for apps without deleting research data• Netflix podcasts early viewing stats and how measurement differs from traditional podcast metrics• YouTube leading in monthly active podcast users globally, and what that means for platforms• industry roundup across Canada, Iran, Ukraine, Vietnam, and sports creator networks• product and platform updates across Overcast, Libsyn, Spotify, and Google• listener boosts, sats, and how we share support revenueSupport the showConnect With Us: Email: weekly@podnews.netFediverse: @james@bne.social and @samsethi@podcastindex.socialSupport us: www.buzzsprout.com/1538779/supportGet Podnews: podnews.net

In Episode 303 of The Rainmaking Podcast, Scott Love speaks with Jason Stiehl, Managing Partner of the Chicago office of Crowell & Moring, about a unique perspective on law firm business development: treating networking like theater. Jason explains why successful rainmakers approach conferences and networking events as a series of interactions over time rather than a quick sales pitch. Preparation, curiosity, and authentic connections are critical to building trust and long-term client relationships. They also discuss how lawyers can use conferences, presentations, and follow-up conversations to uncover shared interests and create genuine connections that lead to business opportunities. If you're looking to improve your law firm client development, rainmaking strategy, and professional networking, this episode offers practical insights from a practicing rainmaker. YouTube: https://youtu.be/Y5hDNsBYDCU --------------------------

I am Rolf Claessen and together with my co-host Ken Suzan I welcome you to Episode 172 of our podcast IP Fridays. Today's interview guests are Co-Founder & CEO of Inception Point AI, Jeanine Whright, and Mark Stignani, who is Partner & Chair of Analytics Practice at Barnes & Thornburg LLP. https://www.linkedin.com/in/jeaninepercivalwright https://www.linkedin.com/in/markstignani Inception Point AI But before the interview I have news for you: The Unified Patent Court (UPC) ruled on Feb 19, 2026, that specialized insurance can cover security for legal costs. This is vital for firms, as it eases litigation financing and lowers financial hurdles for patent lawsuits by removing the need for high liquid assets to enforce rights at the UPC. On Feb 12, 2026, the WIPO Coordination Committee nominated Daren Tang for a second six-year term as Director General. Tang continues modernizing the global IP system, focusing on SMEs, women, and digital transformation. His confirmation in April is considered certain. An AAFA study from Feb 4 reveals 41% of tested fakes (clothing/shoes) failed safety standards. Many contained toxic chemicals like phthalates, BPA, or lead. The study highlights that counterfeiters increasingly use Meta platforms to sell unsafe imitations directly to consumers. China's CNIPA 2026 report announced a crackdown on bad-faith patent and trademark filings. Beyond better examination quality, the agency will sanction shady IP firms and stop strategies violating “good faith” to make China’s IP system more ethical and innovation-friendly. Now, let's hear the interview with Jeanine Whright and Mark Stignani! How AI Is Rewiring Media & Entertainment: Key Takeaways from Ken Suzan's Conversation with Jeanine Wright and Mark Stignani In this IP Fridays interview, Ken Suzan speaks with two repeat guests who look at the same phenomenon from two angles: Jeanine Wright, Co-Founder & CEO of Inception Point AI, as a builder of AI-native entertainment, and Mark Stignani, Partner and Chair of the Analytics Practice at Barnes & Thornburg LLP, as a lawyer advising clients who are trying to use AI without stepping into a legal (or ethical) crater. What emerges is a clear picture: generative AI is not just “another tool.” It is rapidly becoming the default infrastructure for creative work—while the rules around ownership, consent, and accountability lag behind. 1) What “AI-generated personalities” really are (and why that matters) Jeanine's company is not primarily “cloning” real people. Instead, Inception Point AI creates original, fictional personalities—characters with backstories, ambitions, and evolving arcs—then deploys them into the world as podcast hosts and content creators (and eventually actors and musicians). Her key point: the creative work still starts with humans. Writers and creators define the concept, tone, audience, and story engine. What AI changes is speed, cost, and iteration—and therefore what is economically feasible to produce. 2) The “generative content pipeline” isn't a magic button A recurring misconception Ken raises is the idea that someone “pushes a button” and content pops out. Jeanine explains that real production looks more like a hybrid studio: A creative team defines character, voice, format, and storyline. A technical team builds what she calls an “AI orchestration layer” that combines multiple models and tools. The “stack” differs by format: the workflow for a long-form audio drama is different from a short-form beauty clip. This matters because it reframes AI content not as a single output, but as a pipeline decision: which tools, which data sources, which QA, and which governance steps are used—and where human review happens. 3) The biggest legal questions: origin, liability, ownership, and contracts Mark doesn't name a single “top issue.” He describes a cluster of problems that repeatedly show up in client conversations: Training data and “origin story” Clients keep asking: Can I legally use AI output if the tool was trained on copyrighted works? Even if the output looks new, the unease is about whether the tool's capabilities are built on unlicensed inputs. Liability for unintended harm Mark flags risk from AI content that inadvertently infringes, defames, or carries bias. The legal exposure may not match the creator's intent. Ownership and protectability He points to a big gap: many jurisdictions are still reluctant to grant classic IP rights (copyright or patent-style protection) to purely AI-generated material. That creates uncertainty around whether businesses can truly “own” what they produce. Old contracts weren't written for AI A final, practical point: many agreements—talent contracts, author clauses, data licenses—predate generative AI and simply don't address it. That leads to disputes about scope, permissions, and—crucially—indemnities. 4) Are we at a tipping point? The “gold rush” vs. “next creative era” views Jeanine frames AI as “the world's most powerful creative tool”—comparable to previous step-changes like animation, special effects, and CGI. For her, the strategic implication is simple: creators who learn to use AI well will expand what they can build and test, faster than ever. Mark's metaphor is more cautionary: he calls the moment a “gold rush” where technology is sprinting ahead of law. Courts are getting flooded with foundational disputes, while legislation is fragmented—he notes that states may move faster than federal frameworks, and that labor agreements (e.g., union protections) will be a key pressure point. 5) Democratization: more creators, more niche content, more experimentation One of the most concrete themes is access. Jeanine argues AI will: Lower production barriers for independent filmmakers and storytellers. Reduce the need for “hit-making only” economics that dominate Hollywood. Make micro-audience content commercially viable. Her example is intentionally niche: highly localized, specialized content (like a “pollen report” for many markets) that would never have made financial sense before can now exist—and thrive—because the production cost drops and personalization scales. 6) Likeness, consent, and “digital performers”: what happens when AI resembles a real actor? Ken pushes into a sensitive area: what if someone generates a performance that closely resembles a living actor without consent? Mark outlines the current (imperfect) toolbox—because, as he emphasizes, most laws weren't built for this scenario. He points to practical claims that may come into play in the U.S., such as rights of publicity and false endorsement-type theories, and notes that whether something is parody or “too close” can become a major fault line. Jeanine explains her company's operational approach: They focus on original personalities, designed “from scratch.” They build internal checks to avoid misappropriating known names, likenesses, or recognizable identities. If they ever work with real people, the model would be licensing their likeness/voice. A subtle but important business point also appears here: Jeanine expects AI-native characters themselves to become licensable assets—meaning the entertainment economy may expand to include “celebrity rights” for fully synthetic personalities. 7) Ethics: the real line is “deception,” not “AI vs. human” The ethical core of the conversation is not “AI is bad” or “AI is good.” It's how AI is used—especially whether audiences are misled. Mark highlights several ethical risks: Misuse of tools to manipulate faces and content (“AI slop” and political misuse). Displacement of creative workers without adequate transition support. A concern that AI often optimizes toward “statistical averages,” potentially flattening originality. Jeanine agrees ethics must be designed into the system. She describes regular discussions with an ethicist and emphasizes a principle: transparency. Her company discloses when content or personalities are AI-generated. She argues that if people understand what they're engaging with and choose it knowingly, the ethical problem shifts from “AI exists” to “Are we tricking people?” Mark adds a real-world warning: deepfakes are now credible enough to enable serious fraud—he references a case-like scenario where a synthetic video meeting deceived an employee into authorizing a payment. The point is clear: authenticity and verification are no longer optional. 8) The “dead actor” hypothetical: legal permission vs. moral intent Ken raises a provocative scenario: an actor's estate authorizes an AI-generated new performance, but the actor opposed such technology while alive. Neither guest offers a simplistic answer. Jeanine suggests that even if the estate holds legal rights, a company might choose to avoid such content out of respect and because the ethical “overhang” could damage the storytelling outcome. She also notes the harder question: people who died before today's capabilities may never have been able to meaningfully consent to what AI can now do—raising questions about how we interpret legacy intent. Mark underscores the practical contract problem: many rights are drafted “in perpetuity,” but that doesn't automatically settle the ethical question. 9) Five-year forecast: “AI everywhere,” but audiences may stratify Ken closes with a prediction question: in five years, how much entertainment content will significantly involve AI—and will audiences care? Jeanine predicts AI becomes the default creative layer for most content creation. Mark is slightly more conservative on the percentage, but adds an important nuance: the market will likely stratify. Low-cost, high-volume content may become saturated with AI, while premium segments may emphasize “human-made” as a differentiator—especially if disclosure norms become standard. Bottom line for business leaders and creators This interview lands on a pragmatic conclusion: AI will change how content is made at scale, and the competitive edge will go to teams that combine creative taste, operational discipline, and legal/ethical governance. If you're building, commissioning, or distributing content, the questions you can't dodge anymore are: What's the provenance of the tools and data you rely on? Who is responsible when output harms, infringes, or misleads? What rights can you actually claim in AI-assisted work? Do your contracts and disclosures match the new reality? Ken Suzan: Thank you, Rolf. We have two returning guests to the IP Friday’s podcast. Joining me today is Janine Wright and Mark Stignani. Our topic for discussion, how is AI transforming the media and entertainment industries today? We look at the issues from differing perspectives. A bit about our guests, Janine Wright is a seasoned board member, CEO, global COO and CFO. She’s led organizations from startup to a $475 million plus revenue subsidiary of a public company. She excels in growth strategy, adopting innovative technologies, scaling operations and financial management. Janine is a media and entertainment attorney and trial litigator turned technologist and qualified financial expert. She is the co-founder and CEO of Inception Point AI, a growing company that is paving new ground with AI-generated personalities and content through developing technology and story. Mark Stignani is a partner with Barnes & Thornburg LLP and is based in Minneapolis, Minnesota. He is the chair of the data analytics department with a particular emphasis on artificial intelligence, machine learning, cryptocurrency and ESG. Mark combines the power of artificial intelligence and machine learning with his skills as a corporate and IP counsel to deliver unparalleled insights and strategies to his clients. Welcome, Janine and Mark to the IP Friday’s podcast. Jeanine Whright: Thank you. Thank you. Thank you so much for having me and fun to be back. It feels nostalgic to be here. Ken Suzan: That’s right. And you both were on the program. So it’s fantastic that you’re both back again. So our format, I’m going to ask a question to Janine and or Mark and sometimes to both of you. So that’s going to be how we proceed. Let’s jump right in. Janine, your company creates AI-generated actors. For listeners who may not be familiar, can you briefly explain what that means and what’s now possible that wasn’t even two years ago? Jeanine Whright: Sure. Yeah, we are creating AI-generated personalities. So new characters, new personalities from scratch. We design who these personalities are and will be, how they will evolve. So we give them complex backstories. We give them hopes and dreams and aspirations. We every aspect of them, their families, how they’re going to evolve. And in the same way that, say, you know, Disney designs the character for its next animated feature or, you know, an electronic arts designs a character for its next major video game. We are doing that for these personalities and then we are launching them into the world as podcast hosts, content creators on social platforms like YouTube, Instagram and TikTok. And even in the future, you know, actors in feature length films, musicians, etc. Ken Suzan: Very fascinating. Mark, from your practice, what’s the single biggest legal question or dispute you’re seeing clients wrestle with when it comes to AI and media creation? Mark Stignani: Well, I think that, you know, it’s not just one thing, it’s like four things. But most of them tend to be kind of the origin story of AI data or AI tools that they use because, you know, but for the use of AI tools trained on copyrighted materials, the tools wouldn’t really exist in their current form. So a lot of my clients are wondering about, you know, can I legally use this output if it’s built upon somebody else’s IP? The second ask, the second flavor of that is really, is there liability being created if I take AI content that inadvertently infringes or defames or biases there? So there’s the whole notion of training bias from the training materials that comes out. The third phase is really, you know, can I really own this? Because much of the world does not really give IP rights into AI-generated inventions, copyrighted materials. It’s still kind of a big razor. Then at the end of the day, you know, if it’s an existing relationship, does my contract even contemplate this? So everything from authors contracts on up to just use of data rights that predate AI. Ken Suzan: And Janine and Mark, a question to both of you. How would you describe where we are right now in the AI revolution in media and entertainment? Are we approaching a tipping point? And if so, what are the things we need to watch for? Jeanine Whright: Yeah, I definitely think that we’re at a phase where people are starting to come to the realization that AI is the world’s most powerful creative tool. But that, you know, storytelling and point of view is what creates demand and audiences. And AI doesn’t threaten or change that. But it does mean that as people evolve in this medium, they’re very likely going to need to adopt, utilize and figure out how to hone their craft with these AI-generated content and these AI-generated toolings. So this is, you know, something that people have done certainly in the past in all sorts of ways in using new tools. And we’ve seen that make a significant change in the industry. So you look at, you know, the dawn of animation as a medium. You look at use of special effects, computer-generated imagery in the likes of Pixar. And this is certainly the next phase of that evolution. But because of the power of the tool and what will become the ubiquity of the tool, I think that it’s pretty revolutionary and all the more necessary for people to figure out how to embrace this as part of their creative process. Ken Suzan: Thank you, Janine. Mark, your thoughts? Mark Stignani: Yeah, I mean, I liken this to historically to like the California gold rush right now, because, you know, the technology is so far outpaced in any of the legal frameworks that are available. And so we’re just trying to shoehorn things in left and right here. So, I mean, the courts are beginning to start to engage with the foundational questions. I don’t think they’re quite there yet. I just noticed Anthropic got sued again by another group of people, big music group, because of the downloaded works they’ve done. I mean, so the courts are, you know, the courts are certainly inundated with, you know, too many of these foundational questions. Legislatively, hard to tell. I mean, federal law, the federal government is not moving uniformly on this other than to let the gold rush continue without much check and balance to it. Whereas states are now probably moving a lot faster. Colorado, Illinois, even Minnesota is attempting to craft legislation and limitations on what you can do with content and where to go with it. So, I mean, the things we need to watch for any of the fair use decisions coming out here, you know, some of the SAG-AFTRA contract clauses. And, you know, again, the federal government, I just, you know, I got a big shrug going as to what they’re actually going to come up with here in the next 90 to 100 days. So, but, you know, I think they’ll be forced into doing something sooner than later. Ken Suzan: Okay, let’s jump into the topic of the rise of generative content pipelines. My first question to Janine. Studios and production companies are now building what some call generative content pipelines. This is where AI systems produce everything from scripts to visual effects to voice performances. What efficiencies and creative possibilities does this unlock for the industry? Jeanine Whright: Yeah, so this is quite a bit of what we do. And if I could help pull the curtain back and explain a little bit. Ken Suzan: That’d be great. Jeanine Whright: Yeah, there’s this assumption that, you know, somebody is just sitting behind a machine pushing a button and an out pops, you know, what it is that we’re producing. There’s actually quite a bit of humans still in the loop in the process. You know, we have my team as creators. The other half of my team is the technologists. And those creators are working largely at what we describe as the the tip of the sphere. So they’re, of course, coming up with the concepts of who are these personalities? What are these personalities, characters, backgrounds going to be a lot of like rich personality development? And then they’re creating like what are the formats? What are the kind of story arcs? What is the kinds of content that this this character wants to tell? And what are the audiences they’re desiring to reach and what’s most going to resonate with them? And then what we built internally is what we refer to as an AI orchestration layer. So that allows us to pull from basically all of the different models and then all of these different really cool AI tools. And put those together in such a way and combine those in such a way that we can have the kind of output that our creative team envisions for what they want it to be. And at the end of the day, what you what the stack looks like for, say, a long form audio drama, like the combination of LLMs that we’re going to use in different parts of scripting and production and, you know, ideating and all of that. And the kinds of tooling that we use to actually make it and get it to sound good and have the kinds of personality characteristics that we want to be in an authentic voice for a podcast is going to be different than the tech stack and the tool stack that we might use for a short form Instagram beauty tip reel. And so there’s a lot of art in being able to pull all of these tools together to get them to do exactly what you want them to do. But I think the second part of your question is just as interesting as the first. I mean, what is what possibilities is this unlocking? So of course you’re finding efficiencies in the creative production process. You can move faster. You can do things were less expensive, perhaps, and you were able to do it before. But on the creator side, I think one thing that hasn’t been talked about enough is how it is really like blown wide the aperture of what creators can do and can envision. Traditionally, you know, Hollywood podcasting, many of these businesses that become big businesses have become hit making businesses where they need to focus on a very narrow of wide gen pop content that they think is going to get tens of millions, hundreds of millions in, you know, fans and dollars in revenue for every piece of content that they make. So the problem with that is, is that it really narrows the kinds of things that ultimately get made, which is why you see things happening in Hollywood, like the Blacklist, which is, you know, this famous list of really exceptional content that remains unpredited, unproduced, or why you see things like, you know, 70 to 80% of the top 100 movies being based on pre-existing IP, right? Because these are such huge bets that you need to feel very confident that you’re going to be able to get big, big audiences and big, big dollars from it. But with AI, and really lowering the barrier to entry, lowering the costs of production and marketing, the experimentation that you can do is really, really phenomenal. So, you know, my creative team, if they have an idea, they make it, you know, they don’t have to wring their hands through like a green lighting process of, you know, should we, shouldn’t we, like we, we can make an experiment with lots of different things, we can do various different versions of something. We can see what would this look like if I placed it in the 1800s, or what if I gave this character an Australian accent, and it’s just the power of being able to have this creative partner that can ideate with you and experiment with you at rocket speed. With the creators that are embracing it, you can see how it is really fun for them to be able to have this wide of a range of possibility. Ken Suzan: Mark, when you hear about these generative pipelines, what are the immediate red flags or concerns that come to mind from a legal standpoint? How about ethics underlying all of this? Well, Mark Stignani: that was not, that’s the number one red flag because I mean, we are seeing not just that in the entertainment industry, but it literally at political levels, and the kind of the phrase, to turn the phrase AI slop being generated, we’re seeing, you know, people’s facial expressions altered. In some cases, we’re seeing AI tools being misused to exploit various groups of individuals and genders and age groups. So I mean, there’s a whole lot of things ethically that people are using AI for that just don’t quite cover it. Especially in the entertainment industry, I mean, we’re looking at a fair amount of displacement of human workers without adequate transition support, devaluation of the creative labor. I mean, the thing though that I’m always from a technical standpoint is AI is simply a statistical average of most everything. So it kind of devalues the benefit of having a human creator, a human contribution to it. That’s the ethical side. But on the legal side, I see chain of title issues. I mean, because these are built on very questionable IP ownership stages, I mean, in most of these tools, there has been some large copying, training and taking of copyrighted materials. Is it transformational? Maybe. But there’s certainly not a chain of title, nor is there permission granted for that training. I mentioned SAG-AFTRA earlier, I think there’s a potential set of union contract aspects to this that if you know many of these agreements and use sub-licenses for authors and actor agreements, they weren’t written with AI in mind. So that’s another red flag. And also I just think in indemnification. So if we ultimately get to a point where groups are liable for using content without previous license, then who’s liable? Is the tool maker the liable group or the actual end user? So those are probably my top four red flags. But I think ethics is probably my biggest place because just because we can do something from an ethical standpoint doesn’t mean we should. Jeanine Wright: Yeah, if I can respond to both of those points. I mean, one from a legal perspective, just to be very clear, I mean, we are always pulling from multiple different models and always pulling from multiple different sources. And we even have data sources that we license or use for single source of truth on certain pieces of information. So we’re always pulling things together from multiple different sources. We also have built into our process, you know, internal QAing and checking to make sure that we’re not misappropriating the name or likeness of any existing known personality or character. We are creating original personalities there. We design their voice from scratch. We design their look from scratch. So we’re not on our personality side, we’re not pulling or even taking inspiration from existing intellectual property that’s already out there in creating these personalities. On the ethical side, I agree. I mean, when we came out of stealth, we came out of stealth in September. There was certainly quite a bit of backlash from folks in my—I previously co-founded a company in the audio space. I mean, there’s been many rounds of layoffs in audio and in many other parts of the entertainment industry. So I’m very sensitive to the feedback around, like, is this job displacement? I mean, I do think that the CEO of NVIDIA said it right when he said, you’re likely not going to lose your job to AI, but you will lose your job to somebody who knows how to use AI. I think these tools are transforming the way that content is made and that the faster that people can embrace this tooling, the more likely they’re going to be having the kinds of roles that they want in, you know, in content creation and storytelling in the future. And we are hiring. I’m hiring AI video creators, AI audio creators. I’m hiring AI developers. So people who are looking for those roles, I mean, please reach out to me, we would love to work with you and we’d love to grow with you. We also take the ethics very seriously. For the last few months or so, I’ve met regularly with an ethicist, we talk about all sorts of issues around, you know, is designing AI-generated people, you know, good for humanity? And what about authenticity and transparency and deception, and how are we in building in this space going to avoid some of the problems that we’ve seen with things like social media and other forms of technology? So we keep that very top of mind and we try to build on our own internal values-based system and, you know, continue to elevate and include the humanity as part of the conversation. Ken Suzan: Thank you, Janine. Janine, some argue that AI content pipelines will level the field for filmmaking, giving independent creators access to tools that were once available only to major studios. Is that the future you envision? Jeanine Wright: I do think that with AI you will see an incredible democratization of access to technology and access to these capabilities. So I do think, you know, rise of independent filmmakers, you won’t have as many people who are sitting on a brilliant idea for the next fantastic script or movie that just cannot get it made because they will be able to with these tools, get something made and out there, at least to get the attention of somebody who could then decide that they want to invest in it at a studio kind of level in the future. The other thing that I think is really interesting is that I think, you know, AI will empower more niche content and more creators who can thrive in micro-communities. So it used to be because of this hit generation business model, everything needed to be made for the masses and a lot of content for niche audiences and micro-communities was neglected because there was just no way to make that content commercially viable. But now, if you can leverage AI—we make a pollen report podcast in 300 markets, you know, nobody would have ever made that before, but it is very valuable information, a very valuable piece of content for people who really care about the pollen in their local community. So there’s all sorts of ways that being able to leverage AI is making it more accessible both to the creator and to the audience that is looking for content that truly resonates with them. Ken Suzan: Mark, let’s talk about the legal landscape right now. If someone creates an AI-generated performance that closely resembles a living actor without their consent, what legal recourse does that actor have? Mark Stignani: Well, I mean, I think we can go back to the OpenAI Scarlett Johansson thing where, you know, if it’s simply—well, the “walks like a duck, quacks like a duck” type of aspect there. You know, I think it’s pretty straightforward that they need to walk it back. I mean, the US doesn’t have moral rights, really, but there’s a public visage right, if you will. And so, one of the things that I find predominantly useful here is that these actors likely have rights of publicity there, we probably have a Lanham Act false endorsement claim, and you know, again, if the performance is not parody, and it’s so close to the original performance, we probably have a copyright discussion. But again, all of these laws predate the use of AI, so we’re going to probably see new sets of law. I mean, we’re probably going to see “resurrection” frameworks, we’ll probably have frameworks for synthetic actors and likenesses, but the rules just aren’t there yet. So, unfortunately, your question is largely predictive versus well-settled at this point. Ken Suzan: Janine, your company works with AI actors. How do you navigate the questions of consent and likeness compensation when creating digital performers? Jeanine Wright: I mean, if we—so first of all, if we were to work with a person who is an existing real-life person or was an existing real-life person, then we would work with them to license their name and likeness or their voice or whatever aspects of it we were going to use in creating content in partnership with them. Not typically our business model; we are, as I said, designing all of our personalities from scratch and making all of our content originally. So, we’ve not had to do that historically. Now, you know, the flip side is: can I license my characters as if they’re similar to living characters? Like will I be able to license the name and likeness and voice of my AI-generated personalities? I think the answer is yes and we’re already starting to do that. Ken Suzan: Let’s just switch gears into ethics and AI because I find this to be a really fascinating issue. I want to look at a hypothetical. And this is to both of you, Janine and Mark: an AI system creates a new performance by a beloved actor who passed away decades ago, and the actor’s estate authorizes it, but the actor was known to have expressed opposition to such technology during their lifetime. Is this ethical? Jeanine Wright: This feels like a Gifts, Wills, and Trusts exam question. Ken Suzan: It sounds like it, that’s right. Jeanine Wright: Throwing me back to my law school days. Exactly. What are your thoughts? It’d be interesting to see like who has the rights there. I mean, I think if you have the legal rights, the question is around, you know, is it ethical to go against what you knew was somebody’s wishes at the time? I guess the honest answer is I don’t know. It would depend a lot on the circumstances of the case. I mean, if we were faced with a situation like that where there was a discrepancy, we would probably move away from doing that content out of respect for the deceased and out of a feeling that, you know, if this person felt strongly against it, then it would be less likely that you could make that storytelling exceptional in some way—it would color it in a way that you wouldn’t want in the outcome. And I feel like there’s—I mean, certainly going forward and it’s already happening—there are plenty of people I think who have name, likeness, and voice rights that they are ready to license that wouldn’t have this overhang. Ken Suzan: Mark, your thoughts? Mark Stignani: Yeah, I mean, again, I have to kind of go back to our property law—the Rule Against Perpetuities. You know, from a property standpoint to AI rights and likenesses—since most of the digital replica contracts that I’ve reviewed generally do talk about things in perpetuity. But if it’s not written down for that actor and the estate is doing this—is it ethical? You know, that is the debate. Jeanine Wright: Well, gold star to you, Mark, for bringing up the Rule Against Perpetuities. There’s another one that I haven’t heard for many years. This is really taking me back to my law school days. Ken Suzan: It’s a throwback. Jeanine Wright: The other thing that’s really interesting is that this technology is really so revolutionary and new that it’s hard to even contemplate now what it is going to be in a decade, much less for people who have passed away to have contemplated what the potential for it could be today. So you could have somebody who is, perhaps, a deceased musician who expressed concerns about digital representations of themselves or digital music while they were alive. But now, the possibility is that you could recreate—certainly I could use my technology to recreate—that musician from scratch in a very detailed way, trained on tons of different available data. Not just like a digital twin or a moving image of them, but to really rebuild their personality from scratch, so that they and their music could be reintroduced to totally new generations in a very respectful and authentic way to them. It’s hard to know, with the understanding that that is possible, whether or not somebody who is deceased today would or would not agree to something like that. I mean, many of them might want, under those circumstances, for their music to live on. These deceased actors and musicians could live forever with the power of AI technology. Mark Stignani: Yeah, I really just kind of go to the whole—is deep-faking a famous actor the best way to preserve them or keep them live? Again, that’s a bit more of an ethical question because the deep fakes are getting good enough right now to create huge problems. Even zoom meetings in Hong Kong where a CFO was on a call with five synthetic actors who all looked like his coworkers and they sent a big check out based upon that. So again, the technology is getting good enough to fool people. Jeanine Wright: I think that’s right, Mark, but I guess I would just highlight the same way that it always has been: the ethical line isn’t AI versus human, the ethical line is about deception. Like, are you deceiving people? And if people know what it is that they’re getting and they’re choosing to engage with it, then I think it isn’t about the power of the technology. In our business, we have elected—not everybody has—but we have elected to be AI transparent. So we tell people when they listen to our show, we include it in our show notes, we include it on our socials. Even when we’re designing our characters to be very photo-realistic, we make an extra point to make sure that people know that this is AI-generated content or an AI personality. Like, our intention is not to deceive and to be candid. From a business model perspective, we don’t need to. I mean, there’s already people who know and understand that it is AI, and AI is different than people. Because it is AI, there’s all sorts of things that you can do with it that you would not be able to do with a real person. You know, we get people who ask us on the podcast side, we get all sorts of crazy funny requests. You know, people who say, “Can I text with this personality? Can I talk to them on the phone? Can they help me cook in the kitchen? Can they sing me Happy Birthday? Can they show up at my Zoom meeting today because I think my boss would love it?” You know, all sorts of different ways that people are wanting to engage with these characters. And now we’re in the process of rolling out real-time personalities so people will be able to engage with our personalities live. It is a totally different way that people are able to engage with content, and people can, as they choose, decide what kind of content they want to engage with. Ken Suzan: Jeanine and Mark, we’re coming to the end of this podcast. I would love to keep talking for hours but we have to stay to our timetable here. Last question: five years from now, what percentage of entertainment content do you predict will involve significant AI generation, and will audiences care about that percentage? Jeanine? Jeanine Wright: I mean, I would say 99.9%. I mean, already you’re seeing—I think YouTube did a survey—that it was like 90% of its top creators said that they’re using AI as material components of their content creation process. So, I think this will be the default way that content is created. And content that is not made with AI, you know, there’ll be special film festivals for non-AI generated content, and that will be a special separate thing than the thing that everybody is doing now. Ken Suzan: Mark, your thoughts? Mark Stignani: Yeah, I go a little lower. I mean, I think Jeanine is right that we’re seeing, especially in the low-quality content creation and like the YouTube shorts and things like that, you know, there’s so much AI being pushed forward that the FTC even acquired an “AI slop” title to it. I do think that disclosure will become normalized, that the industries will be pushed to say when something is AI and what is not. And I think it’s very much like, you know, do you care about quality or not? If you value the human input or the human factor in this, there will be an upper tier where it’s “AI-free” or low AI assistant. I think that it’s going to stratify because the stuff coming through the social media platforms right now—I can’t be on it right now just because there’s so much nonsense. Even my children, who are without much AI training at all, find it just too unbelievable for them. So, I think it will become normalized, but I think that we’re going to see a bunch of tiers. Ken Suzan: Well, Jeanine and Mark, this has been a fantastic discussion of an ever-evolving field in IP law. Thank you to both of you for spending time with us today on the IP Friday’s podcast. Jeanine Wright: Thank you so much for having me. Mark Stignani: Appreciate your time. Thank you again.

Greenwashing claims aren't just coming from consumers. Moldex-Metric has sued competitor Protective Industrial Products, alleging false environmental claims about its “bio-based” earplugs in violation of the Lanham Act and California UDAP laws. The case highlights how competitors can leverage the FTC's Green Guides and independent testing to challenge sustainability claims—and why brands must ensure all “eco-friendly” statements are verifiable. Hosted by Simone Roach. Based on a blog post by Gonzalo E. Mon and Katie Rogers

On this special collaborative episode of Ropes & Gray's Non-binding Guidance and Talkin' Trade podcast series, life sciences regulatory and compliance partner Josh Oyster is joined by intellectual property litigation partner Matt Rizzolo to discuss the complex world of false advertising and unfair competition disputes involving drugs, medical devices, and other FDA-regulated products. Together, they explore recent developments in Lanham Act competitor lawsuits, ITC investigations, and the shifting regulatory landscape. Discover the nuances of private litigation, the powerful remedies available through Section 337 investigations, and the potential impact of recent changes at FDA. 

We are back with anew round of show floor interviews from Coffee Fest! This time we were in NYC at the Keys to the Shop booth and got four wonderful presenters and experts to chat about training, entrepreneurship, and trademarking law! First up to talk about effective barista training strategies we have our friend Antoine Franklin!  Antoine Franklin (better known as “Twizz”) born and raised in Cleveland, OH has 19 years of experience working in the coffee industry. Having many different job titles from barista to operations partner, to wholesale manager, LAWCO judging panel he's got a ton of experience and knowledge doing almost everything in the industry. Instagram: @Twizz_3seas  Next we are chatting about training across multiple cafes with Mo Hashmi!  Mo Hashmi works at Hidden Grounds Coffee as their Director of Coffee & Education. Since beginning his career in coffee, Mo has trained countless baristas in advanced coffee brewing techniques across New Jersey and New York. Currently Mo leads the roasting operation of Hidden Grounds Coffee and is in charge of sourcing, profiling, and quality control. In 2023, Mo received his SCA Roasting certification. https://www.instagram.com/momakescoffee/ https://thehiddengrounds.com/   Now we get to dive into the history and lessons learned from one of the founders of famed NYC coffee company, Cafe Grumpy!  Caroline Bell is the Co-Founder and CEO of Café Grumpy, a specialty coffee company founded in Greenpoint, Brooklyn, in 2005. A Certified Q Grader and PCQI, Caroline leads the green coffee buying and fosters relationships with coffee producers, with a focus on Central America. Since its launch, Café Grumpy has expanded to 11 locations across New York City, Miami, and New Jersey. Passionate about quality, sustainability, and community, Caroline is dedicated to building a supportive team and fostering a positive work environment. Through her continued work, she is helping to shape the specialty coffee industry—one cup at a time. https://cafegrumpy.com/ https://www.instagram.com/cafegrumpy Lastly we get into the land of trademarks and the legal protections your brand needs with Maria Sinatra!  Maria Sinatra focuses her practice on offensive and defensive Lanham Act and Copyright Act litigation in federal courts throughout the country. Maria has experience with disputes involving anti-counterfeiting actions, trademark and trade dress infringement actions, trademark dilution claims, false advertising issues, and copyright infringement litigation. She regularly advises clients on brand management issues, including how to secure, protect, and police trademark rights. Reach out to and follow Maria on Linkedin:  https://www.linkedin.com/in/maria-sinatra-86b851163/   All these interviews took place at Coffee Fest and you should a trade sho you should seriously consider attending!  www.coffeefest.com   INTERESTED IN CONSULTING AND COACHING? If you are a cafe owner and want to work one on one with me to bring your shop to its next level and help bring you joy and freedom in the process then email  chris@keystothshop.com of book a free call now:  https://calendly.com/chrisdeferio/30min   

In this case, the court considered this issue: Does an award of the “defendant's profits” under the Lanham Act allow a court to require the defendant to disgorge profits earned by legally separate, non-party corporate affiliates?The case was decided on February 26, 2025.The Supreme Court held that the Lanham Act limits recovery of profits in trademark infringement cases to those earned by the named defendant, not its separately incorporated affiliates. Justice Elena Kagan authored the unanimous opinion of the Court.The text of the Lanham Act authorizes recovery of the “defendant's profits,” which refers only to profits of parties named in the lawsuit. This interpretation aligns with fundamental corporate law principles that treat separately incorporated organizations as distinct legal entities with separate rights and obligations, even when they share common ownership. While exceptions exist through corporate veil-piercing doctrines, Dewberry Engineers never pursued this legal pathway. Courts may not, as the lower courts here did, disregard corporate separateness and treat a party and its non-party affiliates as “a single corporate entity” when calculating the profit award.Justice Sonia Sotomayor authored a concurring opinion.The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you. 

Navigating Trademark Disputes and Content Creation Challenges. When is it worth your time to go after someone who uses your trademark in a grey area or fair use manner that is not referencing your brand?At the end of the day, just be a human being when you do business. If you have an issue with someone's content, try having a simple conversation before taking action that could hurt a creator, especially a small business owner. I have no hard feelings toward anyone, I'm just sharing what happened because the story is helpful to keep in mind for your own content. Content moderation is usually run by bots who don't understand nuance.I discuss a personal experience of having a YouTube video removed for an apparent trademark violation. I delve into the complexities of trademark law, Lanham Act and fair use. I highlight the importance of diversifying content platforms and building a resilient outreach strategy via your email list.Chapters:(00:29) Understanding Trademark Fair Use(01:50) The Lanham Act Explained(03:02) Personal Reflections on Trademark Issues(05:37) YouTube's Response, and Content Strategy(07:58) Building a Resilient Online Presence(10:15) The Future of Social Media and AILinks mentioned:41k impressions LinkedIn video post: "Let's talk openly about fees"Full video: ROI of Transparent Pricing + Marketing (Financial Advisors and AUM): YouTubeMy podcast tools:Record: emilybinder.com/riversideEdit with AI: emilybinder.com/descriptShop my gear: beetlemoment.com/gearHire me:Speaking: emilybinder.com/speakingCoaching: emilybinder.com/callBring me into your next meeting: thinkersone.com/emilybinderConnect:This podcast | My website | Beetle Moment Marketing | LinkedIn | X | Instagram | TikTok | YouTube | Email updates Hosted on Acast. See acast.com/privacy for more information.

Hello Everyone! Today we will be looking at Vidal v. Elster (2024), a case involving trademark rights and the Lanham Act of 1946. This case examined if a living individuals' name can be trademarked without their consent! Especially with all of the merchandise that was being made leading up to the 2024 Election, it's a very current and interesting issue to look at. Hope you all enjoy!

QUESTION PRESENTED:Whether an award of the “defendant's profits” under the Lanham Act can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates. ★ Support this podcast on Patreon ★

Civil Procedure: Can an award of the "defendant's profits" under the Lanham Act include an order for the defendant to disgorge profits from legally separate non-party corporate affiliates? - Argued: Wed, 11 Dec 2024 8:19:9 EDT

A case in which the Court will decide whether an award of the “defendant's profits” under the Lanham Act can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates.

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below. Food and Drug Administration v. Wages and White Lion Investments, LLC (December 2) - Federalism & Separation of Powers; Issue(s): Whether the court of appeals erred in setting aside the Food and Drug Administration’s orders denying respondents’ applications for authorization to market new e-cigarette products as arbitrary and capricious. U.S. v. Miller (December 2) - Bankruptcy; Issue(s): Whether a bankruptcy trustee may avoid a debtor’s tax payment to the United States under 11 U.S.C. § 544(b) when no actual creditor could have obtained relief under the applicable state fraudulent-transfer law outside of bankruptcy. Republic of Hungary v. Simon (December 3) - International Law & Financial Services; Issue(s): (1) Whether historical commingling of assets suffices to establish that proceeds of seized property have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act; (2) whether a plaintiff must make out a valid claim that an exception to the FSIA applies at the pleading stage, rather than merely raising a plausible inference; and (3) whether a sovereign defendant bears the burden of producing evidence to affirmatively disprove that the proceeds of property taken in violation of international law have a commercial nexus with the United States under the expropriation exception to the FSIA. U.S. v. Skrmetti (December 4) - Federalism & Separation of Powers& SOGI; Issue(s): Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment. Kousisis v. U.S. (December 9) - Environmental Law & Financial Services; Issue(s): (1) Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme; (2) whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services; and (3) whether all contract rights are “property.” Feliciano v. Department of Transportation (December 9) - Federal Employment Law; Issue(s): Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency. Seven County Infrastructure Coalition v. Eagle County, Colorado (December 10) - Environmental Law & Financial Services; Issue(s): Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority. Dewberry Group v. Dewberry Engineers (December 11) - Civil Procedure; Issue(s): Whether an award of the “defendant’s profits” under the Lanham Act can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates. Featuring: Boyd Garriott, Associate, Wiley Rein LLP Eric N. Kniffin, Attorney, Kniffin Law PLLC, Fellow, Ethics and Public Policy Center Michael Pepson, Regulatory Counsel, Americans for Prosperity Foundation Alexandra Shapiro, Partner, Shapiro Arato Bach LLP Jeff Stier, Senior Fellow, Consumer Choice Center (Moderator) Tessa Shurr, Committee Staff, U.S. House of Representatives

Welcome to Supreme Court Opinions. In this episode, you'll hear the Court's opinion in Vidal v Elster.      In this case, the court considered this issue: Does the refusal to register a trademark under 15 U.S.C. § 1052(c) when the mark contains criticism of a government official or public figure violate the Free Speech Clause of the First Amendment? The case was decided on June 13, 2024. Steve Elster sought to register the trademark "Trump too small" for use on shirts and hats, drawing from a 2016 Presidential primary debate exchange. The Patent and Trademark Office (PTO) refused registration based on the "names clause" of the Lanham Act, which prohibits the registration of a mark that identifies a particular living individual without their written consent. Elster argued that this clause violated his First Amendment right to free speech. The Trademark Trial and Appeal Board affirmed the PTO's decision, but the Federal Circuit reversed. The Supreme Court of the United States reversed the Federal Circuit's decision, holding that the Lanham Act's names clause does not violate the First Amendment. The Court found that while the names clause is content-based, it is not viewpoint-based, as it does not discriminate against any particular viewpoint. The Court also noted that the names clause is grounded in a historical tradition of restricting the trademarking of names, which has coexisted with the First Amendment. The Court concluded that this history and tradition are sufficient to demonstrate that the names clause does not violate the First Amendment. The Court emphasized that its decision is narrow and does not set forth a comprehensive framework for judging whether all content-based but viewpoint-neutral trademark restrictions are constitutional. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you. --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

Welcome to Supreme Court Opinions. In this episode, you'll hear the Court's opinion in Abitron Austria GmbH v Hetronic International, Inc. In this case, the court considered this issue: Does the Lanham Act permit the owner of a U.S.-registered trademark to recover damages for the use of that trademark when the infringement occurred outside the United States and is not likely to cause confusion in the United States? The case was decided on June 29, 2023. The Supreme Court held that the Lanham Act extends trademark protection only to claims where the infringing “use in commerce” is domestic. Justice Samuel Alito authored the majority opinion of the Court. Unless Congress explicitly states otherwise, U.S. laws are generally presumed to apply only within the territorial jurisdiction of the United States. This presumption helps avoid conflicts with other countries and is premised on the idea that Congress typically legislates with domestic matters in mind. To apply the presumption against extraterritoriality, courts apply a two-step framework. First, a court must ask whether Congress has explicitly indicated that the statute should apply to foreign conduct. If not, then the second step is to ask whether the lawsuit seeks a permissible domestic or impermissible foreign application of the law. Applying that two-step framework here, the Court concluded that the Lanham Act applies only to claims where the infringing use is domestic. First, neither § 1114(1)(a) nor § 1125(a)(1) explicitly indicates that the statute should apply to foreign conduct. They prohibit the use “in commerce” of protected marks that are likely to cause confusion. A mere reference to “foreign commerce” does not make a statute extraterritorial. Second, the focus of the statute is on the “use in commerce” that is likely to cause confusion, which is domestic conduct. Justice Ketanji Brown Jackson filed a concurring opinion to elaborate on what it means to “use a trademark in commerce.” Justice Sonia Sotomayor filed an opinion concurring in the judgment, in which Chief Justice John Roberts and Justices Elena Kagan and Amy Coney Barrett joined, arguing that while the majority reached the correct conclusion, in her view the Lanham Act extends to activities carried out abroad when there is a likelihood of consumer confusion in the United States. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you. --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

Welcome to Supreme Court Opinions. In this episode, you'll hear the Court's opinion in Jack Daniel's™ Properties, Inc. v VIP Products LLC. In this case, the court considered this issue: Is humorous use of another's trademark as one's own on a commercial product subject to the Lanham Act's likelihood-of-confusion analysis, or instead entitled to heightened First Amendment protection? The case was decided on June 8, 2023. The Supreme Court held that The parodic use of another's trademark as one's own on a commercial product is subject to the Lanham Act's likelihood-of-confusion analysis, not the threshold Rogers test, and is not automatically excluded from a claim of trademark dilution. Justice Elena Kagan authored the unanimous opinion of the Court. The Lanham Act creates federal causes of action for trademark infringement and trademark dilution. In a typical infringement case, the question is whether the defendant's use of a mark is “likely to cause confusion, or to cause mistake, or to deceive.” In a typical dilution case, the question is whether the defendant “harmed the reputation” of a famous trademark. However, even before answering these questions, courts apply a threshold test developed by the Second Circuit in Rogers v Grimaldi, Under the Rogers test, when a trademark infringement claim targets an expressive work, the claim must be dismissed unless the complainant can show either (1) that the challenged use of a mark “has no artistic relevance to the underlying work” or (2) that it “explicitly misleads as to the source or the content of the work.” The Rogers test is limited, however. It does not insulate from ordinary trademark scrutiny the use of trademarks as trademarks. A primary purpose of trademark law is to protect against consumer confusion about source, and the risk of consumer confusion is highest when someone uses another's trademark as a trademark, as VIP did with Jack Daniel's iconic bottle. The parodic nature of VIP's use may affect the ultimate determination of the likelihood of consumer confusion, but it does not automatically shield the use from claims of dilution. Thus, dismissal of the infringement and dilution claims under the Rogers test was erroneous. Justice Sonia Sotomayor authored a concurring opinion, in which Justice Samuel Alito joined, to warn courts to view surveys, such as the one provided as evidence of consumer confusion in this case, with caution and as merely one piece of a multifaceted analysis of the likelihood of confusion. Justice Neil Gorsuch authored a concurring opinion, in which Justices Clarence Thomas and Amy Coney Barrett joined. Although the Court's decision left the Rogers test intact, Justice Gorsuch warned lower courts to view it “with care” and expressed doubt that Rogers is “correct in all its particulars.” The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.  --- Support this podcast: https://podcasters.spotify.com/pod/show/scotus-opinions/support

Listen as intellectual property attorneys Tiffany Gehrke and Kelley Gordon of Marshall Gerstein in Chicago share their insights into three matters relevant anyone watching copyright and trademark law, or anyone fond of branded t-shirts and fancy French beverages.  I talk to Tiffany Gehrke about two cases. One is Vidal v. Elster, better known as the “TRUMP TOO SMALL” case. Just decided by the Supreme Court, this deals with whether a mark containing criticism of a government official or public figure – which is barred by the “names clause” of the Lanham Act – violates free speech. Justice Thomas wrote the majority opinion, which Tiffany outlines.  The other case is Penn State v. Vintage Brands, which is pending in Pennsylvania federal court and is expected to have wide-reaching implications for retailers and brand owners alike. Vintage Brand uses Penn State's registered Nittany Lions trademarks on t-shirts, hats, and other goods, and argues that use of the trademarks constitute a defensible “ornamental use.” We shall see! Finally, I ask Kelley Gordon for her take on a dispute between a popular Instagram influencer, Lauren Holifield, and champagne brand Veuve Clicquot. Holifield temporarily and surprisingly lost her IG account after Veuve Clicquot raised trademark infringement concerns on three of Holifield's videos. This was a big deal for her. She was earning six figures. OMG. Hear what Kelley has to say. *******This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.If you have comments, ideas, or wish to participate, please drop me a note at Editor@LitigationConferences.com.Tom HagyLitigation Enthusiast andHost of the Emerging Litigation PodcastHome PageFollow us on LinkedInSubscribe on your favorite platform. 

In this episode, host Tom Dunlap discusses the landmark Supreme Court case, Matal v. Tam, and its profound implications on trademark law and free speech. Through the story of Simon Tam and his band The Slants, Tom explores the journey of challenging the disparagement clause of the Lanham Act—a case that ultimately led to a unanimous Supreme Court decision supporting the right to re-appropriate racially disparaging terms under the First Amendment. Join Tom as he unpacks the intricacies of trademark regulations, the concept of commercial speech, and how this case has reshaped legal precedents and cultural dialogues around offensive trademarks.

Trump too Small Trademark Barred by Supreme Court https://www.reuters.com/legal/us-supreme-court-bars-trump-too-small-trademark-2024-06-13 https://www.haynesboone.com/news/alerts/supreme-court-in-trump-too-small-case-leaves-intact-the-lanham-act-restriction https://www.scotusblog.com/2024/06/supreme-court-rejects-trump-too-small-trademark https://ipwatchdog.com/2024/06/13/scotus-reverses-cafcs-trump-small-ruling-names-clause-constitutional/id=178027 https://www.jdsupra.com/legalnews/lanham-act-s-personal-names-restriction-9837342/?origin=CEG&utm_source=CEG&utm_medium=email&utm_campaign=CustomEmailDigest&utm_term=jds-article&utm_content=article-link Griner's “Success Kid” Lawsuit Prevails over King for Congress https://law.justia.com/cases/federal/appellate-courts/ca8/23-2117/23-2117-2024-06-07.html Griner v. King, No. 22-3623 (8th Cir. June 7, 2024) Bacardi and Company Limited v. USPTO … Read the rest The post “Trump Too Small” trademark refusal under Lanham Act ‘Names' Clause is Constitutional – ELU 169 appeared first on Entertainment Law Update.

In recent years, the Supreme Court has decided two cases in which it held that certain restrictions against registering certain kinds of marks violate the Free Speech Clause of the First Amendment. In Matal v. Tam (2017), it invalidated the Lanham Act proscription against registering marks containing terms disparaging toward a person or institution. In Icanu v. Brunetti (2019), it invalidated the Lanham Act proscription against registering marks containing scandalous or immoral terms. The Supreme Court has now decided Vidal v. Elster, in which it adopted this question presented: “Whether the refusal to register a mark under Section 1052(c) [Lanham Act section 2(c)] violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.” At issue was an application to register the mark TRUMP TOO SMALL on various clothing items. Lanham Act section 2(c) prohibits registration of a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.” The Federal Circuit held that this proscription violates the Free Speech Clause as applied in this mark-registration application. This Courthouse Steps presentation will discuss the background leading to Vidal v. Elster, review the Court's decision, and discuss its implications for trademark law and free speech. Featuring: Michael K. Friedland, Founding Partner, Friedland Cianfrani LLP Moderator: John B. Farmer, Attorney, Leading-Edge Law Group, PLC

Suspicion of Fraud Cannot Support Qui Tam Action Post 4770 Richard Campfield, suing for the State of California, appealed the trial court sustained the demurrer of defendants Safelite Group, Inc. and its subsidiaries, Safelite Solutions LLC and Safelite Fulfillment, Inc. (collectively, Safelite) without leave to amend. Campfield contends he adequately alleged a cause of action under the Insurance Fraud Prevention Act (Ins. Code, § 1871 et seq.) (IFPA) within the statute of limitations. In State Of California, ex rel. Richard Campfield v. Safelite Group, Inc., et al., A168101, California Court of Appeals, First District, Fourth Division (March 29, 2024) explained the requirements to plead a Qui Tam action under the IFPA. Campfield owns a windshield repair company that licenses and sells products for repairing vehicle windshield cracks. Safelite is the nation's largest retailer of vehicle glass repair and replacement services. Safelite also serves as the third party administrator for over 175 insurance and fleet companies, including 23 of the top 30 insurers in California and the country, for processing and adjusting policyholders' vehicle glass damage claims, and it has direct electronic access to over 20 insurance company databases. In 2015, Campfield sued Safelite in federal district court in Ohio, alleging Safelite's continued reliance on its six-inch rule violated the Lanham Act's (15 U.S.C. § 1051 et seq.) Safelite admitted in responses to interrogatories in the Ohio action that it has never conducted studies on the safety or viability of repair of cracks longer than six inches. Campfield filed under seal the complaint in the present action against Safelite, alleging a single qui tam cause of action for violation of the Insurance Frauds Prevention Act (IFPA). The Insurance Commissioner and the San Francisco County District Attorney declined to intervene, so in September 2022 the trial court unsealed the complaint. Safelite demurred, arguing, among other things, that the complaint failed to allege facts constituting a cause of action under the IFPA. Campfield failed to plead his claim with sufficient particularity, and the statute of limitations barred the complaint. After briefing and a hearing, the trial court sustained the demurrer without leave to amend based on the statute of limitations and noted that Safelite had raised "substantial arguments" that the complaint had not stated a cognizable claim and that the action was barred by the IFPA's public disclosure bar. The trial court then dismissed the action. The IFPA was enacted to prevent automobile and workers' compensation insurance fraud in order to, among other things, significantly reduce the incidence of severity and automobile insurance claim payments and therefore produce a commensurate reduction in automobile insurance premiums. The sole cause of action in the complaint is based on Insurance Code section 1871.7, subdivision (b), which allows for the imposition of civil penalties and other remedies against anyone who violates Insurance Code section 1871.7 or Penal Code sections 549, 550, or 551. Campfield alleges Safelite violated Penal Code section 550, subdivision (b)(1) and (2). As in any action sounding in fraud, an IFPA action must be pleaded with particularity. To effectively state his IFPA cause of action, Campfield must allege facts showing that Safelite presented, or caused to be presented, a false statement as part of, or in support of or opposition to, a claim for payment or other benefit pursuant to an insurance policy or prepared or made a false statement intended to be presented to any insurer or any insurance claimant in connection with, or in support of or opposition to, any claim or payment or other benefit pursuant to an insurance policy. --- Support this podcast: https://podcasters.spotify.com/pod/show/barry-zalma/support

Each month, a panel of constitutional experts convenes to discuss the Court's upcoming docket sitting by sitting. The cases covered in this preview are listed below.Culley v. Marshall (October 30) - Due Process; What test should district courts apply to determine whether a state or local government must provide a hearing to someone who has had property seized under a civil asset forfeiture law?Lindke v. Freed (October 31) - Civil Rights, First Amendment; Whether a public official's social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.O'Connor-Ratcliff v. Garnier (October 31) - Civil Rights, First Amendment; Are public officials acting as government officials, so that they can violate the First Amendment, when they block people on their personal social media accounts that they use to communicate with the public?Vidal v. Elster (November 1) - First Amendment, Intellectual Property; Does Section 2(c) of the Lanham Act, which bars the registration of a trademark which uses the name of another living person without that person's permission, violate the Constitution when used to reject a trademark that contains criticism of a government official or public figure?Department of Agriculture Rural Development Rural Housing Service v. Kirtz (November 6) - Fair Credit Reporting Act, Sovereign Immunity; Whether the civil-liability provisions of the Fair Credit Reporting Act clearly waive the sovereign immunity of the United States.United States v. Rahimi (November 7) - Second Amendment; Whether a federal ban on the possession of guns by individuals who are subject to domestic violence restraining orders violates the Second Amendment.Rudisill v. McDonough (November 8) - GI Bill; Whether a veteran who has served two separate periods of qualifying service under the Montgomery GI Bill and the Post-9/11 GI Bill is entitled to receive a total of 48 months of education benefits as between both programs.Featuring: Braden Boucek, Director of Litigation, Southeastern Legal FoundationProf. Christa Laser, Professor, Cleveland State University of Law Gary Lawkowski, Counsel, Dhillon Law GroupAmy Swearer, Senior Legal Policy Analyst, Meese Center for Legal and Judicial Studies, The Heritage FoundationModerator: Laura Stanley, Judicial Law Clerk, US Court of Appeals, Ninth Circuit

The opinion of the Supreme Court in Abitron Austria GmbH v. Hetronic Int'l, Inc. (2023) in which the Court was asked whether the Lanham Act permits the owner of a U.S.-registered trademark to recover damages for the use of that trademark when the infringement occurred outside the United States and is not likely to cause confusion in the United States. Access Additional resources about this case at oyez.org: https://www.oyez.org/cases/2022/21-1043 Follow What SCOTUS Wrote Us for audio of Supreme Court opinions. Anywhere you listen to podcasts.

Stanford's Evelyn Douek and Alex Stamos weigh in on the latest online trust and safety news and developments:X-Twitter CornerTwitter followed through on its threat to sue the Center for Countering Digital Hate (CCDH). The rationale has changed from a violation of the Lanham Act, a federal trademark statute, to a breach of contract and violations of the Computer Fraud and Abuse Act (CFAA). It's still a bad idea and not at all free-speechy. - Bryan Pietsch/ The Washington Post But in a pleasant surprise, X appealed an Indian court ruling that it was not compliant with federal government orders to remove political content, arguing it could embolden New Delhi to block more content and broaden the scope of censorship. Does Musk know about this? - Aditya Kalra, Arpan Chaturvedi, Munsif Vengattil/ ReutersMeanwhile, Apple removed Meduza's flagship news podcast, “What Happened,” from Apple Podcasts and then reinstated it two days later without explaining… what happened. - MeduzaEarlier this summer, the Russian state censorship authority asked Apple to block the Latvian-based, independent Russian- and English-language news outlet's show.About a month ago, the Oversight Board told Meta to suspend Cambodian Prime Minister Hun Sen from Facebook and Instagram. He originally threatened to leave the platform altogether, but instead is back and posting. Meta has three more weeks until the deadline to respond to the Board's recommendation. (Shoutout to Rest of World for being one of the only outlets covering this!) - Danielle Keeton-Olsen, Sreynat Sarum/ Rest of World  TikTok announced a number of new measures that it is rolling out in the EU to comply with the Digital Services Act, which comes into effect for major platforms at the end of the month. Especially ironic in light of our discussion last week, one of the measures is a chronological feed. - Natasha Lomas/ TechCrunch, TikTokGoogle said demand for its free Perspective API has skyrocketed as large language model builders are using it as a solution for content moderation. But Perspective is a blunt tool with documented issues, including high false-positives and bias, and a lack of context that can be easily fooled by adversarial users. (Shoutout to Yoel Roth for skeeting about this on Bluesky) - Alex Pasternack/ Fast Company, @yoyoel.comThis is scary: A lawsuit brought by the adult entertainment industry group Free Speech Coalition (FSC) against the state of Utah to stop enforcement of a new state law requiring age verification to access adult websites was dismissed. - Sam Metz/ Associated PressThe court held that the law can't be challenged and paused with an injunction before it goes into effect because it's not enforced by the government, but with private lawsuits. Not only that, but the court said the group can't raise the constitutional arguments it made against the law until a resident uses it to file a lawsuit.This has to be wrong as a matter of First Amendment law, which is usually very concerned about chilling effects. FSC appealed the ruling, so we'll have to wait and see. If this survives, it will be a scary loophole to First Amendment scrutiny.Sports CornerAussie Aussie Aussie! Oi Oi Oi! The Matildas are through to the Women's World Cup quarter finals with a 2-0 win over Denmark and Sam Kerr's return to the pitch for the final 10 minutes of play. - Jon Healy, Simon Smale/ ABC News (Australia)We send our commiserations to the U.S. Women's team for bowing out of the World Cup in the worst possible way. Hold your head up high, Megan Rapinoe, you've left an indelible mark on the sport and U.S. women's athletics! - Issy Ronald/ CNNStanford Athletics is in rare company, but not the kind you want to be in. All but three other teams will leave the Pac-12 as the historic college athletics conference faces an uncertain future. - John Marshall/ Associated PressJoin the conversation and connect with Evelyn and Alex on Twitter at @evelyndouek and @alexstamos.Moderated Content is produced in partnership by Stanford Law School and the Cyber Policy Center. Special thanks to John Perrino for research and editorial assistance.Like what you heard? Don't forget to subscribe and share the podcast with friends!

Kona Coffee Must be From the Big Island of Hawaii L&K Coffee claimed its various insurance companies erroneously denied coverage to defend it against a Lanham Act false-advertising lawsuit brought by Hawaiian coffee growers. The district court concluded the applicable insurance policies did not obligate a defense and entered summary judgment in the insurance companies' favor. In L&K Coffee LLC, dba Magnum Roastery; Kevin Kihnke v. LM Insurance Corporation; Liberty Insurance Corporation; Selective Way Insurance Company; Valley Forge Insurance Company; Continental Casualty Company, No. 22-1727, United States Court of Appeals, Sixth Circuit (June 1, 2023) the Sixth Circuit resolved the coverage dispute. FACTS L&K Coffee, LLC, a Michigan-based company, roasts and sells coffee products throughout the United States. Defendants are insurance companies from whom L&K purchased general commercial liability and umbrella insurance policies. Coffee growers from the Kona region of the Island of Hawai'i sued L&K and other coffee companies for "false designation of origin, false advertising, and unfair competition" in violation of the Lanham Act, 15 U.S.C. § 1125(a), in the Western District of Washington. These "Kona Plaintiffs" alleged that the defendants falsely designated the origin of the coffee they branded and distributed as "Kona" coffee "when most of the coffee beans contained in the coffee products were sourced from other regions of the world." The Kona Plaintiffs' operative complaint summarized their contentions as to L&K as follows: "L&K falsely designates the geographic origin of its "Kona" coffee products with the prominent placement of KONA on the front of the packaging." ANALYSIS The duty of an insurance company to provide a defense depends upon the allegations in the complaint and extends to allegations which even arguably come within the policy coverage. An insurer's duty to defend does not depend solely upon the terminology used in a plaintiff's pleadings. Rather, it is necessary to focus on the basis for the injury and not the nomenclature of the underlying claim in order to determine whether coverage exists. The term "disparage" means an untrue statement directed towards another's property. A disparagement claim requires a company to make false, derogatory, or disparaging communications about a competitor's product." (emphasis in the opinion) The Kona Plaintiffs alleged L&K violated the Lanham Act's prohibition on false designation of one's own product. See 15 U.S.C. § 1125(a)(1). The Sixth Circuit concluded that this is not "disparagement." ZALMA OPINION It never pays to lie to your customers. When doing so harms someone else you are subject to damages from those your lie harms. By falsely designating its product of "Kona" coffee when L&K claimed its cheap, generic coffee was "Kona" Coffee it was involved in a tort that was not covered by the policies of insurance. (c) 2023 Barry Zalma & ClaimSchool, Inc. Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Subscribe and receive videos limited to subscribers of Excellence in Claims Handling at locals.com https://zalmaoninsurance.locals.com/subscribe. Consider subscribing to my publications at substack at https://barryzalma.substack.com/publish/post/107007808 Go to Newsbreak.com  https://www.newsbreak.com/@c/1653419?s=01 Barry Zalma, Esq., CFE, is available at http://www.zalma.com and zalma@zalma.com Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257 --- Support this podcast: https://podcasters.spotify.com/pod/show/barry-zalma/support

In Jack Daniel's Properties, Inc. v. VIP Products LLC, the Supreme Court is considering "Whether humorous use of another's trademark as one's own on a commercial product is subject to the Lanham Act's traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims; and (2) whether humorous use of another's mark as one's own on a commercial product is “noncommercial” and thus bars as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act."IP expert Adam Mathews joined us to break down the case and oral argument.Featuring:Adam Mathews, State Representative, Ohio, and Attorney, Ashbrook Byrne Kresge

In our innovation economy, trademarks and trademark protection are likely to play a significant role in an intellectual property strategy. We know companies spend lots of time and money investing in brands as they compete for consumer attention and recognition. We also know that surveys play an important role in trademark and unfair competition cases. In particular, that's because so many inquiries are focused on the perceptions of the average, reasonably prudent consumer. How do we measure that? How do we assess that? It sets the stage for a potential consumer survey, which introduces both technical and strategic questions. Featured guest Mike Keyes is uniquely qualified to help us better understand the effective use of trademark surveys, both from an academic and a practical litigation perspective.In this episode, Jeff Harty and Mike Keyes discuss: The evolution of survey evidence in court cases. Common ways surveys are used in trademark and advertising litigation. The role lawyers and survey experts play in consumer surveys. Why surveys are approachable subject matter and evidence for jurors (and how they can be looked upon unfavorably). Hurdles to the admissibility of survey evidence. Key Takeaways: The treatment of expert testimony under Federal Rules of Evidence 702 and 703 contributed to the growth of consumer surveys in litigation, and now it is not unusual for judges to expect to see surveys in Lanham Act cases. When it comes to secondary meaning and likelihood of confusion, surveys can be beneficial and can be powerful and persuasive pieces of evidence. Different types of trademark survey designs can be used depending on what litigators are trying to show, such as genericism, acquired distinctiveness, or likelihood of confusion. There's both art and science to putting together a survey questionnaire that's clear, concise, and not leading or biasing survey respondents. “Survey evidence doesn't show actual confusion—what it's trying to test for. It's a tool to assess how consumers' perceptions are in the real-world marketplace. And because it's really trying to get at that issue, it's important to replicate marketplace conditions in terms of how consumers encounter the marks at issue during the survey process.” —Mike Keyes   About Mike Keyes: Mike Keyes is the co-head of Dorsey's trial group and a go-to intellectual property and commercial litigation trial attorney with a vast reservoir of experience in cases involving trademarks, copyrights, and false advertising, including individual consumer and class action claims. Mike and his team have represented some of the world's most recognized brands and companies in high-stakes litigation in federal courts across the country including Washington, Oregon, California, Colorado, Minnesota, Illinois, New York, Massachusetts, Utah, and Florida. These disputes have encompassed subject matters including medical diagnostics software, online games and apps, Google Ads, social media, e-books, consumer products, food and beverage, fashion, sports equipment, educational testing tools, and hospitality services. Connect with Mike Keyes: Website: https://www.dorsey.com/ LinkedIn: https://www.linkedin.com/in/mike-keyes-7b6a134/ Email: keyes.mike@dorsey.com Connect with Jeff Harty: Website: https://nyemaster.com/attorney-directory/jeffrey-d-harty/Email: jharty@nyemaster.comLinkedIn: https://www.linkedin.com/in/jeff-harty-5a9a1643/

In Jack Daniel's Properties, Inc. v. VIP Products LLC, the Supreme Court is considering "Whether humorous use of another's trademark as one's own on a commercial product is subject to the Lanham Act's traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims; and (2) whether humorous use of another's mark as one's own on a commercial product is “noncommercial” and thus bars as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act."Following oral arguments in the case, IP expert Adam Mathews joined us to break down the case and answer audience questions.Featuring:- Adam Mathews, State Representative, Ohio, and Attorney, Ashbrook Byrne Kresge

Trade dress is the characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. Trade dress is an aspect of trademark law, which is a form of intellectual property protection law. Overview. Trade dress is an extension of trademark protection to "the design and shape of the materials in which a product is packaged, . 'Product configuration,' the design and shape of the product itself, may also be considered a form of trade dress." Product configuration applies particularly to situations where the product can be seen within the packaging (for example a toy car sold in packaging that operates as a shadow box for commercial display within—the collective look it creates is trade dress), or where the packaging is part of the product (for example the bottle of a soft drink, along with its visible contents, are trade dress, though the bottle is actually part of the product that retains its value to the consumer for as long as its contents last). Like all intellectual property law other than patent law, trade dress and other trademark elements are subject to the bar on functional features (for example a handle cannot be protected, though it may contain trade dress features that can prevent exact replicas of a particular trade dress handle). It is a question of which elements of the packaging are intrinsic to the basic function of the packaging. In the United States, the Lanham Act protects trade dress if it serves the same source-identifying function as a trademark. It is possible to register a trade dress as a trademark, but for practical reasons most trade dress and product configurations are protected without registration under 15 U.S.C. § 1125(a). United Kingdom. Trade dress can be protected as getup under the law of passing off in the UK. Passing off is a common law remedy for protecting an unregistered trade mark. Getup, packaging, business strategy, marketing techniques, advertisement themes etc. can also be protected under passing off. United States. Trade dress protection is intended to protect consumers from packaging or appearance of products that are designed to imitate other products; to prevent a consumer from buying one product under the belief that it is another. For example, the shape, color, and arrangement of the materials of a children's line of clothing can be protectable trade dress (though, the design of the garments themselves is not protected), as can the design of a magazine cover, the appearance and décor of a chain of Mexican-style restaurants, and a method of displaying wine bottles in a wine shop. --- Send in a voice message: https://podcasters.spotify.com/pod/show/law-school/message Support this podcast: https://podcasters.spotify.com/pod/show/law-school/support

Respondent VIP Products LLC markets and sells dog toys that trade on the brand recognition of famous companies such as petitioner Jack Daniel's Properties, Inc. The district court found that VIP's use of Jack Daniel's trademarks to sell poop-themed dog toys was likely to confuse consumers, infringed Jack Daniel's marks, and tarnished Jack Daniel's reputation. The Ninth Circuit, however, held that VIP's First Amendment interest in using Jack Daniel's trademarks as its own marks on funny dog toys conferred special protection from infringement claims and rendered VIP's commercial dog toys "noncommercial" and thus exempt from dilution-by-tarnishment claims. The questions presented are: I. Whether humorous use of another's trademark as one's own on a commercial product is subject to the Lanham Act's traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims. 2. Whether humorous use of another's mark as one's own on a commercial product is "noncommercial" under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act. https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-148.html

Issue(s): (1) Whether humorous use of another's trademark as one's own on a commercial product is subject to the Lanham Act's traditional likelihood-of-confusion analysis, 15 U.S.C. § 1125(a)(1), or instead receives heightened First Amendment protection from trademark-infringement claims; and (2) whether humorous use of another's mark as one's own on a commercial product is “noncommercial” and thus bars as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act, 15 U.S.C. § 1125(c)(3)(C). ★ Support this podcast on Patreon ★

Issue(s): Whether the U.S. Court of Appeals for the 10th Circuit erred in applying the Lanham Act, which provides civil remedies for infringement of U.S. trademarks, extraterritorially to Abitron Austria GmbH's foreign sales, including purely foreign sales that never reached the United States or confused U.S. consumers. ★ Support this podcast on Patreon ★

A case in which the Court held that humorous use of another's trademark as one's own on a commercial product is subject to the Lanham Act's likelihood-of-confusion analysis.

A case in which the Court will decide whether humorous use of another's trademark as one's own on a commercial product is subject to the Lanham Act's likelihood-of-confusion analysis, or instead receives heightened First Amendment protection.

Petitioners-all foreign nationals-were subjected to a $90 million damages award under the Lanham Act, 15 U.S.C. § 1051 et seq., for allegedly infringing respondent's U.S. trademarks. While trademark rights are distinctly territorial, the accused sales occurred almost entirely abroad. Of approximately $90 million in sales, 97% were purely foreign: They were sales in foreign countries, by foreign sellers, to foreign customers, for use in foreign countries, that never reached the United States or confused U.S. consumers. The Tenth Circuit nonetheless held that the Lanham Act applies extraterritorially to all of petitioners' foreign sales. Recognizing that the circuits have splintered in this area, the Tenth Circuit adopted an expansive view that other courts, including the Fourth Circuit, have concededly rejected. Under the Tenth Circuit's view, the Lanham Act applies extraterritorially whenever foreign defendants' foreign conduct allegedly diverts foreign sales from a U.S. plaintiff. Such an effect, the court held, sufficiently affects U.S. commerce because it prevents foreign revenue from flowing into the U.S. economy. The question presented is: Whether the court of appeals erred in applying the Lanham Act extraterritorially to petitioners' foreign sales, including purely foreign sales that never reached the United States or confused U.S. consumers.

Let's meet the halfway point in the week head-on and take a peek at today's legal news.  The US Supreme Court is deciding whether US trademark law applies to foreign conduct in a case involving a $90m infringement award over radio remote controls. The Tenth Circuit upheld a $115m award, including $90m in trademark infringement damages, to Hetronic International against Abitron Germany for infringing radio remote controls for heavy-duty construction equipment sold worldwide. While Abitron maintained that nearly all its conduct was international and therefore the Tenth Circuit had overreached, Hetronic argued the focus should be on whether actions caused consumer confusion in the US. The case has raised concerns about the reach of US trademark law into other jurisdictions, but the justices have also indicated that Congress' authority over US commerce becomes difficult to square with arguments limiting the reach of trademark law in a global, internet-connected context. IP attorney Mark Lezama of Knobbe Martens said the majority of justices appeared to be in favour of reversing the Tenth Circuit's judgment in large part and limiting the extraterritorial reach of the Lanham Act.By way of brief background, the Lanham Act, also known as the Trademark Act of 1946, is a United States federal law that governs trademarks, service marks, and unfair competition. It provides for the registration of trademarks and service marks with the United States Patent and Trademark Office (USPTO) and establishes procedures for enforcing trademark rights. The Lanham Act prohibits false advertising, false designation of origin, and other deceptive practices that may confuse consumers about the source or quality of goods or services. It also provides for remedies such as injunctions, damages, and attorney's fees in cases of trademark infringement. The Lanham Act has been amended several times over the years to keep pace with changes in technology and commerce, but it remains an important tool for protecting intellectual property rights in the United States and, maybe now, worldwide. Justices Weigh Trademark Law's Reach Against Global Commerce (1) Texas and Idaho will operate under a federal waters rule that was in place before March 20, after a federal court barred the Biden administration's 2023 waters of the US (WOTUS) rule from being implemented in those states. The new rule is designed to protect water quality in major waterways across the US, and impacts housing, agricultural, mining and other development projects in every state, as a permit is required to disturb federally protected waters and wetlands. The definition of federally protected waters under the Clean Water Act has been subject to a complex series of challenges and revisions, including a 2008-15 rule, the Obama administration's expansion of federally protected waters and wetlands, a subsequent court decision rejecting that rule, and the Trump administration's changes to WOTUS. The Biden administration is facing five lawsuits challenging its 2023 rule, brought by at least 26 states and industry groups. Although the injunction against the rule in Texas and Idaho is not expected to affect the other lawsuits, a Supreme Court case, Sackett v. EPA, could undermine the significant nexus test that is currently used to determine whether waters and wetlands are protected under the law, potentially prompting further litigation.‘Bizarre' Texas Injunction Means Past US Waters Rule in Effect Manhattan prosecutors are expected to decide within days whether to bring charges against former President Donald Trump for his role in hush-money payments made by his former lawyer, Michael Cohen, to Stormy Daniels in the run-up to the 2016 presidential election. Trump denies having had an affair with Daniels. The inquiry into the payments opened and closed several times, leading to the case being referred to as a "zombie case". Doubts had arisen as to whether state felony charges could be brought against a candidate for federal office, and whether the conduct could be considered money laundering. Manhattan District Attorney Alvin Bragg launched the probe after his predecessor Cyrus Vance twice looked into the payment and did not bring charges. The new prosecutor is reportedly approaching the case with a different legal theory. Trump, who is seeking the Republican nomination for the presidency again in 2024, has called the probe a "witch hunt" – which is probably accurate … if there really was a witch and it really had paid off an adult film actress. Trump hush-money charges would bring 'zombie case' back to lifeContent warning here for a hateful law enacted by a hateful person, with my condolences to all the good people in Arkansas that aren't currently governor. If you want to hop off here and catch up with us tomorrow, this is our last story of the day. Have a great one.On Tuesday, Arkansas Governor Sarah Huckabee Sanders signed a law that prohibits transgender individuals from using public school restrooms that match their gender identity. The law applies to multi-person restrooms and locker rooms in public schools and charter schools serving pre-K through grade 12. The law requires schools to provide reasonable accommodations, such as single-person restrooms and changing areas, and school authorities that violate the law can face fines of at least $1,000, while parents can file lawsuits to enforce the measure. A spokesperson for Sanders said that the governor is focusing on protecting and educating children, not “indoctrinating” them – and indoctrinating should be viewed with huge sarcastic air quotes. This law is similar to ones in Alabama and Oklahoma that are aimed at making life miserable for transgender youth, while Republican legislators across the United States have been campaigning to ban healthcare for them. Some are even seeking to charge parents and doctors with child abuse if they provide treatment, all are aiding and abetting their most extreme colleagues by putting party loyalty ahead of basic human decency. Arkansas enacts law restricting school bathroom use by transgender people  Get full access to Minimum Competence - Daily Legal News Podcast at www.minimumcomp.com/subscribe

A case in which the Court held that the Lanham Act does not permit the owner of a U.S.-registered trademark to recover damages for the use of that trademark when the infringement occurred outside the United States and is not likely to cause confusion in the United States.

A case in which the Court will decide whether the Lanham Act permits the owner of a U.S.-registered trademark to recover damages for the use of that trademark when the infringement occurred outside the United States and is not likely to cause confusion in the United States.

Civil Procedure: Does the Lanham Act apply extraterritorially to foreign sales that never reached the United States or confused U.S. consumers? - Argued: Tue, 21 Mar 2023 14:2:6 EDT

In this episode of Law, disrupted, John is joined by John Hueston and Moez Kaba, Co-Founders and Partners at Hueston Hennigan LLP. Chambers has described John Hueston as “one of the top trial attorneys” in the United States and Moez as “a master in the courtroom.” Together they discuss an arbitration in which they obtained both a $175 million plus 5% ongoing royalty (an estimated $50 million annually) award in arbitration – one of the largest U.S. trademark awards ever – and a federal jury trial verdict for more than $271 million (a potential record for a Lanham Act case) for clients Monster Energy and Orange Bang against Vital Pharmaceuticals, Inc. (VPX), the maker of Bang energy drinks. The conversation begins with John Hueston explaining the background of the dispute. He discusses how for 40 years, Orange Bang had a widely known trademark for the term “Orange Bang” as a beverage. He then explains that VPX licensed the use of the term “Orange Bang” but only in connection with creatine-based beverages in the nutrition market. The discussion turns to the rise of VPX to become the third largest competitor in the energy drink market, thanks to their product, Bang Energy. The discussion then turns to the issues in play in the arbitration, including how John and Moez had to prove both the licensing agreement's validity and that the trademark had been infringed. They explain their strategy of making the three-week arbitration about the science creatine and how they used VPX's own documents and witnesses' depositions to work in their favor.  Moez and John discuss how they proved trademark infringement using survey evidence, historical admissions, and strong equitable stories, including how VPX signed the licensing agreement knowing confusion would ensue. They explain why they decided to take a conservative approach to  monetary damages rather than asking for more than $1 billion, which expert analysis could have supported. This approach resulted in an award of $175 million plus 5% royalties going forward.John then moves the discussion to the Lanham Act jury trial. Moez begins by noting the nine-month time difference between the arbitration and the federal trial and that Monster had filed its lawsuit in California in 2018 before the arbitration proceedings began. In the lawsuit, Monster alleged that VPX advertised its product as a game-changing beverage, which was "nothing short of a miracle drink that delivers benefits and cures that have evaded scientists for decades." Monster also alleged that VPX had misappropriated Monster's trade secrets by hiring Monster employees and telling them to bring Monster's confidential information over with them.John Hueston and Moez then explain their unique approach to mock jury exercises in which they overweight the other side's arguments to help develop their approach both before starting discovery and to prepare for the trial. They also discuss the strict time limits the Court placed on the trial and how they were able to present their case involving complex health, science, and legal issues. Moez explains how they developed their themes that VPX was lying to consumers about what they put in their beverages, cheating competitors by taking confidential information and stealing shelf space away from Monster Energy in supermarkets. They discuss how instead of calling VPX's CEO to the stand first, they targeted high-level executives who could confirm VPX's false statements.Finally, the discussion turns to the two critical points of the trial that gave John & Moez the confidence to believe the jury would rule for them: the jury's reaction to John Hueston's cross-examination of VPX's CEO and Moez's ability to reduce the scientific issues to a level that was understandable and compelling to a working-class jury. Ultimately, the jury awarded Monster more than $271 million on its Lanham Act claim.

In this episode, we discuss defense strategies for UCL and FAL claims based on law developed under the federal Lanham Act, and the relationship between those statutes.

We may not give much thought to how trademark laws affect our daily lives, but the Lanham Act has played a huge role in protecting us as consumers. How? Rocky Dhir welcomes intellectual property experts Joe Cleveland and Craig Stone to discuss the evolution of trademark law and its functions in our economy. They also honor Texas Congressman Fritz Lanham's contributions to this area of the law and explain how his namesake Act has promoted trust and reliability in United States commerce and inspired other countries to model their laws after its statutes. Joe Cleveland is a director and shareholder at Brackett & Ellis, P.C., and has practiced in the area of commercial and intellectual property litigation for over 20 years. Craig Stone is Senior Counsel, Intellectual Property at Phillips 66 Company. Special thanks to our sponsor, Clio.  

We may not give much thought to how trademark laws affect our daily lives, but the Lanham Act has played a huge role in protecting us as consumers. How? Rocky Dhir welcomes intellectual property experts Joe Cleveland and Craig Stone to discuss the evolution of trademark law and its functions in our economy. They also honor Texas Congressman Fritz Lanham's contributions to this area of the law and explain how his namesake Act has promoted trust and reliability in United States commerce and inspired other countries to model their laws after its statutes. Joe Cleveland is a director and shareholder at Brackett & Ellis, P.C., and has practiced in the area of commercial and intellectual property litigation for over 20 years. Craig Stone is Senior Counsel, Intellectual Property at Phillips 66 Company. Special thanks to our sponsor, Clio.  

"Can we long exist as a society if we lose our tradition in the roots of faith?" My guest on this episode of Law and Legitimacy is Ron Coleman. Ron Coleman is a partner at The Dhillon Law Group and has a robust practice including business law, commercial litigation, trademarks, intellectual property, antitrust, appellate issues and the occasional appearance in front of SCOTUS, anchored out of New York City.  Ron is also the host of his own new podcast, The Coleman-Nation Podcast, and is the brilliant mind behind the massive catalogue of blog material you can find at Likelihood of Confusion.  Ron is a lawyer's lawyer, without a doubt. But although our conversation was anchored in the obvious pretense of the practice of law, you will find a transcendent discussion emerge—almost from the moment this episode begins.  I took great pleasure in learning of Ron's commitment to Talmudic scholarship and his willingness to share the insight embedded in what he terms to be the "codified fact patterns" of scripture. Among the most poignant queries: what is Inspiration? What does it mean to be Inspired? And is modern man inspired in his current state? This is the central question of this podcast. Ron and I together attempt to lay forth the nihilistic trajectory of the current era—a sort of anarchy—and opine on the existential importance of common conceptions of right and consensus to a society. And if two seasoned attorneys with minimal overlap in practice can colocate around these themes, where are the rest of the people in our profession?  Yes. We really attacked the theme of Legitimacy.  Our discussion floats effortlessly from our shared philosophical bents into more concrete topics, such as legal realism, the Lanham Act (wherein Ron teaches me and the rest of you what a trademark is in less than 90 seconds), Ron's representation of The Slants before SCOTUS in Matal v. Tam, the evolving trends in Speech, and the Giuliani law license suspension.  I cannot overstate the pleasure we took here at Law and Legitimacy in hosting such engaging content. Perhaps that is the real magic of Ron Coleman. You can find him raising hell on Socials: @RonColeman, @ColemanNation1, and @Likely2Confuse. You may follow the firm, @DhillonLaw, and the Coleman-Nation Podcast producer, Jeremy Corr, @JeremyCCorr.  Join Norm Pattis's growing subscriber base on Patreon. And give Law and Legitimacy a 5-Star rating on your platform of choice and leave a review! --- Support this podcast: https://anchor.fm/norm-pattis/support

"Can we long exist as a society if we lose our tradition in the roots of faith?" My guest on this episode of Law and Legitimacy is Ron Coleman. Ron Coleman is a partner at The Dhillon Law Group and has a robust practice including business law, commercial litigation, trademarks, intellectual property, antitrust, appellate issues and the occasional appearance in front of SCOTUS, anchored out of New York City.  Ron is also the host of his own new podcast, The Coleman-Nation Podcast, and is the brilliant mind behind the massive catalogue of blog material you can find at Likelihood of Confusion.  Ron is a lawyer's lawyer, without a doubt. But although our conversation was anchored in the obvious pretense of the practice of law, you will find a transcendent discussion emerge—almost from the moment this episode begins.  I took great pleasure in learning of Ron's commitment to Talmudic scholarship and his willingness to share the insight embedded in what he terms to be the "codified fact patterns" of scripture. Among the most poignant queries: what is Inspiration? What does it mean to be Inspired? And is modern man inspired in his current state? This is the central question of this podcast. Ron and I together attempt to lay forth the nihilistic trajectory of the current era—a sort of anarchy—and opine on the existential importance of common conceptions of right and consensus to a society. And if two seasoned attorneys with minimal overlap in practice can colocate around these themes, where are the rest of the people in our profession?  Yes. We really attacked the theme of Legitimacy.  Our discussion floats effortlessly from our shared philosophical bents into more concrete topics, such as legal realism, the Lanham Act (wherein Ron teaches me and the rest of you what a trademark is in less than 90 seconds), Ron's representation of The Slants before SCOTUS in Matal v. Tam, the evolving trends in Speech, and the Giuliani law license suspension.  I cannot overstate the pleasure we took here at Law and Legitimacy in hosting such engaging content. Perhaps that is the real magic of Ron Coleman. You can find him raising hell on Socials: @RonColeman, @ColemanNation1, and @Likely2Confuse. You may follow the firm, @DhillonLaw, and the Coleman-Nation Podcast producer, Jeremy Corr, @JeremyCCorr.  Join Norm Pattis's growing subscriber base on Patreon. And give Law and Legitimacy a 5-Star rating on your platform of choice and leave a review! --- Support this podcast: https://anchor.fm/norm-pattis/support

Signed into law in July of 1946, the Lanham Act has, for 75 years, governed U.S. trademark, servicemark, and unfair competition matters. In this edition of the Jones Day Talks Women in IP series, Meredith Wilkes, Anna Raimer, and Carrie Kiedrowski discuss how trademark laws have changed and evolved since the Lanham Act's implementation, and … Continue reading JONES DAY TALKS®: 75 Years of the Lanham Act and Changes in U.S. Trademark Law →

On today's show, we talk with Ron Coleman, partner at Dhillon Law Group in New York. Ron is a commercial litigator working primarily in trademark infringement, unfair competition, and consumer law. He is a champion of free speech and is known throughout the legal profession for his First Amendment advocacy.Join us as Ron tells us the story of a case that would help to define his career. He shares with the events leading up to the landmark Matal v. Tam decision in which Ron represented the band "The Slants" in order to fight the Lanham Act and defend the band's First Amendment rights.Have you got a story about your legal career that you'd like to share? Get in touch with us over at That One Case.For more information about Ron, check out his LinkedIn. Or to find out more about his work, head over to the Dhillon Law Group website.

In this episode, we look at the case between the United State Patent and Trademark Office (USPTO) v Booking.com case where the Supreme Court upheld the decisions of the Circuit Court that Booking.com was not generic and had acquired secondary meaning over time and under the Lanham Act, the consumer is king,” Grounds for refusal to register a mark. Scope of protection.