On March 22, 2017, the U.S. Supreme Court issued its decision in Star Athletica LLC v. Varsity Brands, Inc., No. 15-866 (580 U.S. ___ (2017)) wherein the Court addressed the vexing issue of “conceptual separability,” a test used to determine the extent of copyright protection to “useful articles.” In particular, the question before the Court was whether designs on cheerleader uniforms could obtain copyright protection separate from the uniform itself, which is not copyright protectable because useful articles are not eligible for copyright registration under section 101 of the Copyright Act. 17 U.S.C. §101.Read More
Topics : utility patent, copyright act, Trademark, Trademark registration, star athletica llc v varity brands, star athletica llc, united states supreme court, varsity brands inc, trade dress protection, design patent coverage | 0 Comments Read More
Testing the Waters before Jumping In: Benefits of Screening Trademarks Early for Use and Potential Registration
Just like putting a toe into the water to decide on entering the pool, businesses often conduct “needs assessments” in their marketplace before introducing new products or services. In addition to considering the goods or services themselves, we also strongly recommend that our business clients conduct trademark due diligence before launching under a particular business name or line. The quality of the new offering may be beyond question and the business may have identified a unique niche to fill an unmet need in the marketplace, but since branding and ensuing marketing efforts are such a key part of a launch, clients will be well-served to think early about branding from a trademark perspective.Read More
Topics : trademarks, registering a trademark, united states patent and trademark office, USPTO, register a trademark, trademark rights, Trademark, service mark, Trademark registration, pto, Benefits of screening trademarks, Trademark due diligence | 0 Comments Read More
Under the 1976 Copyright Act, 17 U.S.C. §101, et seq., a creative work is protected by copyright upon its creation at the moment that the work is fixed in a medium. When the work is written down or otherwise set into tangible form, the copyright immediately becomes the property of the author who created it. Only the author or those deriving their rights from the author can rightfully claim copyright to that work, including the rights to copy and make derivative works.Read More
A lesser known – but nonetheless valuable – form of protection under U.S. patent law concerns the aesthetic design or appearance of articles of manufacture, such as, for example, tables, lamps, bottles, automobile grills – almost any object, product or portions thereof. When a utility patent cannot be obtained on an invention, a design patent should be explored.
Under U.S. patent law, a design patent may be granted to any person who has invented any new and non-obvious ornamental design for an article of manufacture. 35 U.S.C. §171. A design patent protects only the appearance of an article and not its structural or functional features. Utility patents, on the other hand, are patents that cover the functional aspects of the invention – provided that it is patentable subject matter, novel and non-obvious. 35 U.S.C. §§101, 102 and 103.Read More
In a previous post, I noted the benefits of registering a trademark with the United States Patent and Trademark Office (the “USPTO”). While that post highlighted those benefits, it did not delve into specific detail regarding the two registers available for registration with the USPTO – the Principal and the Supplemental Registers. This post addresses those differences.
Important to this discussion is an understanding of the nature of trademarks and whether certain “devices” may legally serve as a legitimate mark. As noted previously, a trademark or service mark is a device – a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs – that identifies and distinguishes the source of the goods or services of one party from those of others. A device (such as a word or a logo) can only be considered a trademark or a service mark if it is distinctive – that is, it is capable of distinguishing a user’s goods or services from those of another. A non-distinctive device, on the other hand, is one that merely describes or names a characteristic or quality of the goods or services.Read More