Thomas B. James, Minnesota attorney in Cokato MN - copyright and trademark law
Can We Talk Here? – Trademark Speech Rights. In recent years, the United States Supreme Court has been grappling with the thorny question of how the First Amendment applies to trademarks. In this blog post, attorney Thomas B. James attempts a reconciliation of recent pronouncements. The Slants (Matal v. Tam) Simon Tam, lead singer of the band, The Slants, tried to register the band name as a trademark. The USPTO denied the application, citing 15 U.S.C. § 1052(a).
That provision prohibited the registration of any trademark that could “disparage . . . or bring . . . into contemp[t] or disrepute” any persons. The USPTO argued that the issuance of a registration certificate is “government speech.” “If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.” — Hon. Commercial speech At one time, the Court took the position that the First Amendment does not protect commercial speech (speech relating to the marketing of products or services). Conclusion. The New Copyright Circumvention Rules | Cokato Copyright Attorney: The Law Blog of Thomas James.
In 1998, Congress enacted the Digital Millenium Copyright Act (“DMCA”). In addition to establishing the notice-and-take-down regimen with which website and blog owners are (or should be) familiar, the DMCA made it unlawful to “circumvent a technological measure that effectively controls access to” copyrighted material. (17 U.S.C. § 1201(a)(1)(A)). The Act set out some permanent exemptions, i.e., situations where circumvention is allowed. In addition, it gave the Librarian of Congress power to periodically establish new ones. These additional exemptions are temporary, lasting for three years, but the Librarian of Congress can and does renew them. What is “circumvention of a technological measure”? Circumventing a technological measure means “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” (17 U.S.C. § 1201(a)(3)(A)).
The permanent exemptions. New Trademark Fees Coming | Cokato Copyright Attorney. The USPTO has announced that trademark fees in the United States will be undergoing significant increases on January 18, 2025. Here is a summary of the changes. Application Fees You will no longer enjoy a discounted fee for filing a TEAS-Plus application instead of a TEAS-Standard application. All applications. other than applications filed under the Madrid Protocol, will require a fee of $350 per class. For Madrid applications, the fee is $600 per class. Additional fees must be paid in the following situations: Insufficient information in the application: $100 Use of a custom-made identification of goods or services (as distinguished from using one of the pre-approved descriptions appearing in the Trademark ID Manual): $100 Each additional group of 1,000 characters over the first 1,000 characters in an identification: $200.
Madrid applications are not subject to these additional fees. Statement of Use Fees Maintenance Fees The filing fee for a Section 9 registration will be $350. Like this: Top Copyright Cases of 2024 | Thomas B James Cokato attorney. Warner Chappell Music Inc. v. Nealy The Copyright Act imposes a three-year period of limitations for copyright infringement claims. There has been a split in the circuits about whether this means that damages could be claimed only for infringement occurring during the three-year period or whether damages could be recovered for earlier acts of infringement so long as the claim is timely filed. The issue arises in cases where a claimant invokes the discovery rule.
The general rule is that a limitations period runs from the date of the act giving rise to the cause of action. The discovery rule, by contrast, measures the limitations period from the date the infringing act is discovered. Thus, for example, if an infringing act occurred in 2012 but the copyright owner did not learn about it until 2022, then under the traditional rule, the claim would be time-barred. The Court did not rule on the validity of the discovery rule. Warner Chappell Music Inc.. v. Hachette Book Group Inc. v. U.S. Copyright Fair Use| Thomas James. A court has handed down the first known ruling (to me, anyway) on “fair use” in the wave of copyright infringement lawsuits against AI companies that are pending in federal courts.
A court has handed down the first known ruling (to me, anyway) on “fair use” in the wave of copyright infringement lawsuits against AI companies that are pending in federal courts. The ruling came in Thomas Reuters v. Ross. Thomas Reuters filed this lawsuit against Ross Intelligence back in 2020, alleging that Ross trained its AI models on Westlaw headnotes to build a competing legal research tool, infringing numerous copyrights in the process. Ross asserted a fair use defense. In 2023, Thomson Reuters sought summary judgment against Ross on the fair use defense. Ross had argued that Westlaw headnotes are not sufficiently original to warrant copyright protection and that even if they are, the use made of them was “fair use.” New AI Copyright Infringement Lawsuit More copyright stories here. Like this: Copyright owners prevail in Internet Archive lawsuit. A federal district court has ruled in favor of book publishers in their copyright infringement lawsuit against Internet Archives In June, 2020 four book publishers filed a copyright infringement lawsuit against Internet Archive.
The publishers asserted that the practice of scanning books and lending digital copies of them to online users infringed their copyrights in the books. On Friday, March 24, 2023, a federal district court judge agreed, granting the publishers’ motion for summary judgment. The Internet Archive operation Internet Archive is a nonprofit organization that has undertaken several archiving projects. For example, it created the “Wayback Machine,” an online archive of public webpages. According to the Order granting summary judgment, after scanning the books, Internet Archive made them publicly available online for free, without the permission of the copyright owners. “Fair Use” Internet Archive asserted a “fair use” defense. What’s next? Like this: Like Loading... Is Jazz Confusingly Similar to Music? | Thomas James. Is jazz confusingly similar to music?
No, that wasn’t the issue in this case. It was a contest between APPLE JAZZ and APPLE MUSIC involving tacking. Bertini v. Apple Inc., No. 21-2301 (Fed. Cir. 2023). Apple, Inc. attempted to register the trademark APPLE MUSIC for both sound recordings and live musical performances (among other things). Bertini, a professional musician, filed an opposition, claiming to have used the mark APPLE JAZZ in connection with live performances since 1985, and to have started using it in connection with sound recordings in the 1990s.
The first question that popped into my head, of course, was whether a consumer would really be likely to confuse jazz with music. Sadly, however, that was not the legal issue in this case. The Opposition Proceeding Apple applied to register APPLE MUSIC as a trademark in several categories of services in IC 41, including the production and distribution of sound recordings, and organizing and presenting live musical performances. Trademark | Balancing the First Amendment on Whiskey and Dog Toys. The US Supreme Court has heard oral arguments and will soon decide the fate of the “Bad Spaniels” dog toy. The United States Supreme Court has weighed First Amendment rights in the balance against many things: privacy, national security, the desire to protect children from hearing a bad word on the radio, to name a few. Now the Court will need to balance them against trademark interests.
The Court heard oral arguments in Jack Daniel’s Props. v. VIP Prods., No. 22-148, on March 22, 2023. I’ve written about this case before. To summarize, it is a dispute between whiskey manufacturer Jack Daniel’s and dog-toy maker VIP Products. The dog toy in question is shaped like a bottle of Jack Daniel’s whiskey and has a label that looks like the famous whiskey label. VIP sued for a declaratory judgment to the effect that this does not amount to trademark infringement or dilution. Rogers v. Rogers v. When the medium is the message Does this distinction hold water, though? Like this: Like Loading... Copyright owners prevail in Internet Archive lawsuit.