The Court of Appeals for the Ninth Circuit issued an opinion recently which advised the lower court of both its error in ignoring case law, and the appellate court's dissatisfaction with the final season of Game of Thrones. In chastising the the lower court for disregarding a later clarification to an earlier case, the appellate opinion stated "we will not render [the clarification] meaningless the way that Game of Thrones rendered the entire Night King storyline meaningless in its final season."
The Court of Appeals for the Ninth Circuit is well known for inserting pithy, pop-culture references into its opinions, having touched on Indiana Jones andThe Twilight Zone in recent years. Perhaps most famously, Judge Alex Kozinski's ruling in the Barbie Girl parody case opened by stating "[i]f this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong" and closed by advising the parties "to chill."
The United States-Mexico-Canada Agreement, which will take effect after being passed into law and signed by each country, is intended to replace the North American Free Trade Agreement, and includes a wide range of provisions. With respect to intellectual property, two notable provisions are Canada's agreement to increase the term of protection for both copyrights and "biologics" -- new pharmaceuticals derived from biological sources.
On May 14, 2018, the Supreme Court issued a landmark 6-3 ruling in favor of striking down the Professional and Amateur Sports Protection Act (“PASPA”), which came into effect in 1992. PASPA was a federal law that barred state-authorized sports gambling on baseball, basketball, football and several other sports; a few states, however, and particularly Nevada, were exempted from the law because they had approved some form of sports wagering prior to when the law was enacted.
The decision in Murphy v. Ncaa, Nos. 16-476, 16-477, 2018 U.S. LEXIS 2805 (May 14, 2018) originated in a case from New Jersey, where the state argued that PASPA violated the Tenth Amendment because it was essentially compelling states to prohibit sports wagering. Writing for the majority, Justice Alito held that “[j]ust as Congress lacks the power to order a state legislature not to enact a law authorizing sports gambling, it may not order a state legislature to refrain from enacting a law licensing sports gambling.” Id. at 40-41. With the federal ban on sports gambling lifted, states are now given the green-light to legalize sports betting if they choose. In the months leading up to the high court’s decision – and assuming that PASPA would be struck down – various research firms estimated that at least 30 different states would likely offer sports betting within the next five years.
In a historic vote, the people of Great Britain have chosen to leave the European Union in what has been dubbed “Brexit.” Many clients have registered their trademarks through the Community Trade Mark (“CTM”) system, now known as the European Union Trade Mark (“EUTM”), with the expectation that protection extends to the United Kingdom. Similarly, many clients have protected their inventions and novel designs via the European Patent Office (“EPO”) with rights extending to the UK. Rest assured that there is no emergency; there will be no immediate impact on intellectual property protection for at least 2 years as new trade arrangements are negotiated. While it is predicted that the British Parliament will pass legislation to ensure the continuity of CTM/EUTM trademark rights in an independent UK trademark system, clients might consider filing a national-level UK trademark application as a precaution. Patent rights in the UK should be entirely unaffected by Brexit, however, since the EPO is not an European Union institution and operates independently.
President Barack Obama on Wednesday signed the Defend Trade Secrets Act of 2016 ("DTSA") into law, creating a federal system of trade secrets law. The DTSA extends the current Economic Espionage Act of 1996 ("EEA") which criminalizes trade secret theft, and creates a new Federal cause of action allowing companies to sue to defend their trade secrets. This means that for the first time, trade secret owners can now bring civil suits in federal district courts. The bill was largely uncontroversial passing the Senate 87-0 and the House of Representatives 410-2.
Under the DTSA, for example, a federal court could have jurisdiction over a claim of misappropriation of a trade secret that is used exclusively on an internal basis by the victim or one that is related to a product or service that is in the development stage, so long as the trade secret is related to a product that is intended for use in interstate commerce.
The DTSA adopts the EEA's broad definition of a trade secret meaning almost any kind of tangible or intangible type of information can qualify as a trade secret so long as: (1) the information is actually kept secret; (2) the owner took reasonable measures to maintain that secrecy; and (3) independent economic value is derived from that secrecy.
The theft of trade secrets costs the economy more than $300 billion a year, according to the Commission on the Theft of American Intellectual Property. The DTSA represents the most significant expansion of Federal intellectual property law in a generation, fully recognizing a fourth type of intellectual property right, and is a major step forward in the protection of intellectual property in the United States.
The U.S. House of Representatives passed legislation that would allow companies to sue in federal court for damages resulting from theft of trade secrets. The House voted 410-2 to pass the “Defend Trade Secrets Act,” which passed the Senate earlier this month 87-0. The bill next heads to President Obama, who is expected to sign it into law.
Although trade theft is already a federal crime, under current law cases must be lodged by prosecutors and private civil cases must be filed under state law. The Federal Trade Secrets Bill would create a uniform federal standard for trade secret misappropriation and protect against the economic harms created by trade secret theft, providing an additional civil remedy beyond the patchwork of state statutes.
In an interesting decision handed down by the Federal Circuit this week, it has been found that electronic transmissions of digital data are not "articles" which the International Trade Comissision (ITC) has jurisdiction to exlcude under 19 U.S.C. 1337. ClearCorrect Operating, LLC v. International Trade Commission, Fed. Cir., No. 2014-1527 (Nov. 10, 2015). After an interpretation of both the literal text of the statute as well as the legislative history, the Federal Circuit reversed the ITC's prior determination, and found the term "articles" to clearly mean only "material things".
Copyright and trademark registrations have long held at least one advantage over patents, the © and ® symbols which efficiently denote registered intellectual property. Proper marking of patented articles requires display of the word "Patent" or "Pat." together with the number of the relevant patent or an internet address where the number may be found. However, the U.S. Patent and Trademark Office held an open house to develop icons for patented articles, as well as a number of other intellectual property concepts, and recently published its selections.
Hormel Foods Corporation ("Hormel") has been sued by Unitherm Food Systems, Inc. (“Unitherm”) for misappropriating trade secrets relating to the method of pre-cooking sliced bacon. The suit has been filed in a Minnesota Federal Court in front of the presiding U.S. District Judge Paul Magnuson. Unitherm is a manufacturer of machines used for producing food products, while Hormel is a producer of lunch meats.
Thanksgiving traditions are deeply rooted in American culture. Ever since Abraham Lincoln first mandated Thanksgiving a national holiday in 1863, Americans have been rejoicing this popular national holiday on every fourth Thursday of November.
Accordingly, the history of Thanksgiving evokes many great memories for many Americans. Family and friends travel long distances to come together and spend quality time in each other’s company. As such, Thanksgiving is about spending time with family, watching football on television, feasting on traditional foods, shopping at malls, partaking in parades, volunteering at food drives, and taking naps.
Given this, many products and services contribute in helping American families come together to cherish these special moments, and invariably intellectual property is prevalent everywhere in them.