Bootlegged Performances: Which Constitutional Clause Applies?
August 30, 2007
This article continues the theme of an article I wrote in late 2004 concerning <i>U.S. v. Martignon</i>, 346 F. Supp. 2d 413 (S.D.N.Y. 2004), in which the district court for the Southern District of New York found that 18 U.S.C. §2319A (the 'anti-bootleg statute') was unconstitutional on the ground that Congress had exceeded its delegated power to legislate copyright law when it enacted the statute. My previous article observed that <i>Martignon</i> implicated several important and fundamental public policies in reaching its decision, among which are the protection of intellectual property, constitutional limits on congressional power to enact laws, freedom of expression as protected by the First Amendment, and the necessity of laws threatening a citizen's liberty to be definite and within a legitimate ambit of congressional authority to act.
NYCLA Opinion: In Certain Circumstances, 'Dissemblance' By Attorney-Supervised Investigators Is Permissible to Gather Evidence
August 30, 2007
Ethical prohibitions impact the common practice of almost every active trademark lawyer regarding his or her use of private investigators to collect information from third parties. However, the scope of permissible conduct is not always clearly defined. For instance, when a search report reveals one possible bar to your client's adoption of the mark, such as a nine-year-old federal registration by an individual who does not appear to have a Web site, can you or your investigator contact this person and devise some plausible explanation for the reason that you want to know if the mark is still in use? Or if you discover that a company appears to be infringing your client's trademark, can you send someone pretending to be a customer, but who asks all sorts of questions relevant to proving infringement that the ordinary consumer is highly unlikely to raise? Does it matter if the person you or your investigator makes contact with is a low-level sales clerk or the owner of the company?
IP News
August 30, 2007
Highlights of the latest intellectual property news from around the country.
The Law At Odds: Looking for Harmony Between 337 and the '271(g) Exception
August 30, 2007
Development Corp. owns a patent covering a process for making a chemical 'X.' Imports Inc. uses the process to make chemical X in Europe. Chemical X is then materially altered as it is converted to chemical 'Z'; then it is shipped to the United States. Can Development Corp. block importation of chemical Z? The answer might depend on what forum Development Corp. chooses.
Actively Manage Patents for Better ROI
August 29, 2007
A lack of time and resources often undermines the value of small and medium enterprise ('SME') and individual inventor owned patents. By placing attention and energy on their intellectual property as they do on product development, companies can dramatically increase the value derived from their IP and greatly enhance their overall success.
IP News
July 31, 2007
Highlights of the latest intellectual property news from around the country.
What Proves That a Mark Has Become Generic?
July 31, 2007
Generic names for goods and services may not be registered as trademarks under the Lanham Act, and registered marks that have become the generic name for the goods or services may be cancelled at any time (15 U.S.C. §14(3)). Words that were originally trademarks designating the source for particular products, such as 'escalator' and 'thermos,' have lost that status and become the generic name for all such products. Companies whose marks are in danger of losing their distinctiveness as source indicators may take steps to raise the public's consciousness and prevent their marks from becoming generic. One such well-known advertising campaign is run by Xerox Corporation to educate the public to use a 'photocopying machine' or 'to photocopy' in place of the registered trademark XEROX.
What's Obvious From KSR Int'l Co. v. Teleflex?
July 31, 2007
Since the Supreme Court's April 30, 2007 decision in <i>KSR Int'l Co. v. Teleflex Inc. et al.</i>, 127 S.Ct. 1727 (2007), the Court of Appeals for the Federal Circuit has affirmed one district court's determination of obviousness, reversed another, and denied one rehearing <i>en banc</i> concerning an obviousness determination. This second installment of our two-part series discusses three cases decided after <i>KSR</i> and examines the implications of <i>KSR</i> in the context of these decisions.
