The one thing on every US trademark practitioner’s mind this year is Web 3.0. From crypto-currencies and blockchain to the Metaverse, trademark practitioners are preoccupied with the implications of new technology for existing Lanham Act protections. All eyes are on certain key cases, as practitioners wait to see how First...
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The one thing on every US trademark practitioner’s mind this year is Web 3.0. From crypto-currencies and blockchain to the Metaverse, trademark practitioners are preoccupied with the implications of new technology for existing Lanham Act protections. All eyes are on certain key cases, as practitioners wait to see how First Amendment defences play out against this new technology background. Other issues in the Metaverse include questions of classification for new files, and whether existing protection extends to digital representations of the same. While some emerging industries have continued to attract a lot of attention, principally cannabis, the lack of national policy on which has been frustrating for most attorneys, these newer technologies are taking up most of the air. Developments at the US Patent and Trademark Office (USPTO) continue to be a source of frustration for some – most feel the provisions of the Trademark Modernization Act are welcome, but need more time to make a dent in the now universally recognised backlog at the office. Training of examiners is also an issue raised by lawyers – many attorneys feel that the rules are being applied only selectively or inconsistently. In particular, many have perceived an over-liberal use of ‘failure to function’ rejections and a more heightened scrutiny of specimens than was previously the case. Thirty-five new hires were onboarded in March 2022, giving the office some much-needed staff to assist with the backlog. Practitioners will also be pleased to note that filings from China, which peaked at near domestic-origin levels during the pandemic, have now dropped to just 16% of USPTO filings. WTR reported in June 2022 that total filings in North America and the European Union had dropped post pandemic, but the rate of decline slowed somewhat early this year. On the contentious side, Docket Navigator recorded 1,821 litigation filings in US district court in the first six months of 2022. This is down slightly from the previous year, but Docket Navigator projects the number will rise to 3,575 by the end of the year. Unsurprisingly, given post-pandemic shifts in consumer habits, Amazon and Meta Platforms top the list as defendants, while GS Holistic, which operates the G-Pen portable vaporiser brand, heads the list of plaintiffs, with 37 cases. Smoking and vaping remain a very contentious sector, with e-cigarette company JUUL Labs also appearing near the top of the list, with 20 cases. The Northern District of Illinois is the favoured venue for litigation, with 381 cases in the first six months of 2022.
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