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Intellectual Property

May 2, 2019

Intellectual Property—Posting photo on website to promote film festival was not fair use

A company’s use of a photograph to highlight nearby tourist attractions on a website promoting a for-profit film festival did not constitute fair use because the use was not transformative and was for commercial purposes, the photographer was entitled to thick copyright protection for the photo and allowing such a use could cause considerable damage […]

Mar 19, 2019

Intellectual Property – Trademark & Trade Dress Infringement – Civil Practice – Statute of Limitations – Laches – Unfair Trade Practices

  Plaintiff’s claims – that defendants copied plaintiff’s marketing scheme, trade dress, and product, and even repackaged plaintiff’s salt-scrub product and sold it as their own – were known to plaintiff, at the latest, by 2012. Plaintiff’s 2017 complaint is therefore time-barred. In any event, plaintiff has failed to adequately allege that its marketing system, […]

Feb 15, 2019

Intellectual Property – entitled to trademark

Where the government failed to demonstrate that was a generic term that could not be trademarked, and demonstrated that the descriptive term has gained a secondary meaning, the website is entitled to a trademark. Background operates a website on which customers can book travel and hotel accommodations. It has used the name […]

Sep 19, 2018

Intellectual Property – True statement prompts dismissal of Lanham Act claim

Liberty Counsel, an organization dedicated to advancing Christian causes, sued GuideStar, a nonprofit organization that maintains an extensive online directory of profiles on other nonprofits, after GuideStar reported the Southern Poverty Law Center had designated Liberty as a hate group. Because the statement about the designation was true, the court affirmed dismissal of the Lanham […]

Sep 12, 2018

Intellectual Property – Trademark – State & Federal Marks – Episcopal Church – Civil Practice – Statute of Limitations – Claim & Issue Preclusion

In a related state-court case, the South Carolina Supreme Court issued a split decision, with Justices Pleicones and Hearn ruling to reverse the trial court regarding the state registered trademarks, and Chief Justice Beatty, in the controlling opinion, leaving the issue of the rights to service marks to this court. Therefore, the issue of state […]

Jul 12, 2018

Intellectual Property – Sovereign-immunity waiver for infringement not valid

The federal Copyright Remedy Clarification Act’s broad abrogation of states’ sovereign immunity for copyright infringement was not a valid exercise of Congressional authority, either under Article I’s Copyright Clause or § 5 of the Fourteenth Amendment. Background In 1717, the pirate Blackbeard captured a French merchant vessel, renamed her Queen Anne’s Revenge, and made her his [&hellip[...]

Jun 18, 2018

Intellectual Property – Patent Infringement – Civil Practice – Personal Jurisdiction – Cease & Desist Letters

Because the defendant-patentee took no further actions beyond sending plaintiff letters regarding potential patent infringement, the court cannot assert specific personal jurisdiction over defendant in this declaratory judgment action. The court grants defendant’s motion to dismiss for lack of personal jurisdiction. In the context of a declaratory judgment action for non-infringement of a patent[...]

Apr 13, 2018

Intellectual Property – Trademark & Trade Dress Infringement – Civil Practice – Statute of Limitations & Laches

Where plaintiff accused defendants of violating plaintiff’s intellectual property rights in plaintiff’s skin care products in July 2012, plaintiff’s Feb. 3, 2017, complaint was filed outside the statute of limitations for plaintiff’s state law claims, and plaintiff’s Lanham Act claims are limited to events after Feb. 3, 2014. The court grants in part and denies […]

Feb 26, 2018

Intellectual Property – Trademark Infringement – Karaoke Brand – Consumer Confusion – Civil Practice

Holding: Plaintiff alleges that defendants not only pirated plaintiff’s karaoke recordings, but also copied plaintiff’s trademark and displayed it while playing the pirated songs. The display of plaintiff’s mark on the screen where the karaoke lyrics appear throughout an entire evening of karaoke performances could cause confusion among customers that the holder of the trademark […]

Feb 7, 2018

Intellectual Property – Negligence can’t sustain contributory infringement

BMG Rights Mgm’t LLC v. Cox Commc’ns Inc. (Lawyers Weekly No. 001-024-18, 37 pp.) (Motz, J.) No. 16-1972, Feb. 1, 2018; EDVA at Alexandria (O’Grady, J.) 4th Cir. Holding: Although an ISP’s “13-strike policy” did not qualify for safe harbor in a music copyright infringement suit, the court of appeals remanded for a new trial […]

Jan 5, 2018

Intellectual Property – Copyright Infringement – Pool & Pool House Plans – Tort/Negligence – Conversion

Sinclair & Associates of Greenville, LLC v. CresCom Bank (Lawyers Weekly No. 002-010-18, 23 pp.) (David Norton, J.) 2:16-cv-00465; D.S.C. Holding: Plaintiff’s claim that defendants converted plaintiff’s physical architectural plans to their own use is not preempted by the Copyright Act. The court denies defendants’ motions for summary judgment, denies defendants’ motion in limine, gran[...]

Nov 28, 2017

Intellectual Property – Patent Cancellation – Civil Practice – Witness Immunity

Sanfilippo v. Brewerton (Lawyers Weekly No. 002-204-17, 7 pp.) (Richard Mark Gergel, J.) 2:17-cv-00183; D.S.C. Holding: Plaintiff’s claims are based on defendant’s testimony before the Patent Trial and Appeal Board, but, as a witness, defendant has absolute immunity from plaintiff’s claims. The proper forum for challenging the veracity of defendant’s expert opinion was the proceeding [&hel[...]

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