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29 April 2009

TTAB strikes a bad chord for Fender's guitar shape applications

In Spector Designs Ltd v Fender Musical Instruments Corp, the TTAB has held that three iconic electric guitar shapes created by Fender Musical Instruments Corp were generic and, alternatively, had not acquired distinctiveness, despite over 50 years of continuous use. The decision highlights the importance of substantially exclusive use in showing that a product configuration functions as a trademark.

28 April 2009

USPTO under examination: WTR speaks to commissioner of trademarks

The US Patent and Trademark Office has some serious headaches: lack of political direction, a sharp drop in filings and challenges to its systems and processes. In an exclusive interview, WTR spoke to the commissioner of trademarks for the inside story.

27 April 2009

Second Life TASER Case may be close to resolution

A trademark infringement case filed against Linden Labs, which could have provided much-needed clarification of the meaning of "virtual goods" in relation to trademark law, looks close to resolution.

24 April 2009

Mattel receives augmented accounting of defendant's profits under Section 35

In Super Duper Inc v Mattel Inc, the US District Court for the District of South Carolina has increased the amount of damages in favour of Mattel Inc from $400,000 to $999,113. Although the courts rarely use the authority provided by Section 35 of the Lanham Act to increase the accounting of a defendant’s profits, the district court concluded that this was an exceptional case.

21 April 2009

$2.3 million award affirmed in unusual trade dress case

In Cosmos Jewelry Ltd v Po Sun Hon Co, the US Court of Appeals for the Ninth Circuit has affirmed a district court decision in which the latter had held that the defendant had infringed the plaintiff’s common law trade dress in its jewellery, but not the plaintiff’s copyright in the jewellery. The Ninth Circuit found that the plaintiff was entitled to the award of the total amount of the defendant's profits from the relevant period.

20 April 2009

USPTO admits filing downturn more "severe" than anticipated

The commissioner of trademarks at the US Patent and Trademark Office has acknowledged that the downturn in trademark applications is worse than the registry expected.

16 April 2009

TTAB takes hard stance on good-faith intent-to-use requirement

In Honda Motor Co v Winkelmann, the TTAB has denied trademark registration to a foreign applicant on the grounds that the latter lacked the requisite good-faith intent to use the mark in US commerce for the goods identified in the application. The decision will be of interest to anyone filing a US trademark application that requires a declaration under oath that the applicant has a good-faith intent to use the mark in commerce.

16 April 2009

Fender loses in 3D guitar application

Fender's attempts to register a series of trademarks for its three-dimensional guitar shapes have been rejected by the US Trademark Trial and Appeal Board.

09 April 2009

False designation action dismissed, but fight for JAPONAIS continues

In Geisha LLC v Tuccillo, the owner of the well-known Japonais restaurant has suffered a setback in its long-running battle with Roy Tuccillo over the trademark JAPONAIS. The US District Court for the Northern District of Illinois found that a question of fact existed as to the extent of Geisha’s reputation in the JAPONAIS mark as of the filing date of Tuccillo’s application.

09 April 2009

US government releases hazy ACTA summary

Bowing to pressure from IP owners and civil society groups, the United States Trade Representative has released a summary of the controversial Anti-counterfeiting Trade Agreement.

08 April 2009

Laches defence splits Ninth Circuit

In Internet Specialties West Inc v Milon-DiGiorgio Enterprises Inc, the US Court of Appeals for the Ninth Circuit has denied the equitable defence of laches to Milon-DiGiorgio Enterprises Inc against Internet Specialties West Inc’s trademark infringement claim. However, the dissent stated that the majority’s decision 'eviscerated' the defence of laches under trademark law.

07 April 2009

US appeals court rescues keywords case against Google

A US appeals court has dealt a blow to Google's besieged AdWords programme by overturning an earlier dismissal of a trademark infringement lawsuit brought against the search engine by computer breakdown support company Rescuecom Corp.

06 April 2009

Scope of false advertising claims narrowly construed by Federal Circuit

In Baden Sports Inc v Molten USA Inc, a suit involving the marketing of high-end basketballs, the US Court of Appeals for the Federal Circuit has narrowly construed the scope of false advertising claims allowed under Section 43(a) of the Lanham Act. The court reiterated that Section 43(a) does not codify the entirety of unfair competition law.

02 April 2009

Third time’s a charm for Visa

In Visa International Service Association v JSL Corporation, the US District Court for the District of Nevada has, for the third time, found in favour of Visa International Service Association and held that use of the trademark EVISA by JSL Corporation was likely to dilute the strength of the famous VISA mark.

31 March 2009

Sound marks for alarms refused registration

In In re Vertex Group LLC, in a precedential opinion, the Trademark Trial and Appeal Board has upheld a decision of the US Patent and Trademark Office in which the latter had refused to register two sound marks described as a sound of “descending frequency sound pulse” occurring at intervals of four to five per second.