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June/July 2024 Cantor Colburn IP Newsletter
Parody shoe can’t outrun trademark infringement claim
The U.S. Court of Appeals for the Second Circuit has won the race to be the first appellate court to apply the U.S. Supreme Court’s recent ruling in Jack Daniel’s Properties, Inc. v. VIP Products LLC regarding the use of trademarks in expressive works. The case involved a highly popular “skater” (skateboard enthusiast) shoe made by globally known footwear and apparel manufacturer Vans. This article summarizes the appellate court’s decision and how it may provide a helpful indication of how the Supreme Court’s ruling will play out. A brief sidebar looks at how courts review parodic intent’s effect on the likelihood of confusion.
Vans, Inc. v. MSCHF Product Studio, Inc., No. 22-1006 (2d Cir. Dec. 5, 2023); Jack Daniel’s Properties, Inc. v. VIP Products LLC, No. 22-148 (U.S. June 8, 2023).
Is there a substitute for the human touch? AI-generated work isn’t copyrightable
Artificial intelligence (AI) seems to be everywhere these days. One place it keeps popping up is in applications submitted to the U.S. Copyright Office — where the applications have been uniformly rejected because copyrightable works require “human authorship.” This article highlights a recent submission that provides a good illustration of the difficulties presented by works created with the help of AI when it comes to obtaining copyright protections.
Second Request for Reconsideration for Refusal to Register SURYAST (Copyright Review Board, Dec. 11, 2023).
When the doctrine of equivalents results in patent infringement
As an alternative route to establishing patent infringement liability, the doctrine of equivalents comes with some strict requirements. One patentee’s failure to meet those requirements ended up costing it a hefty jury award on appeal. This article explains the doctrine of equivalents and how it affected one patentee’s claim of infringement.
VLSI Technology LLC v. Intel Corporation, No. 22-1906 (Fed. Cir. Dec. 4, 2023).
Patentee’s claim term definition comes back to haunt it
Federal patent law allows a patentee to devise its own definition for a claim term — or act as its own “lexicographer” — rather than settling for the “plain and ordinary” meaning. At first glance, this may seem like an advantage for patent holders. As this article notes though, sometimes a patentee can become a lexicographer inadvertently, with disastrous consequences.
ParkerVision, Inc. v. Vidal, No. 22-1548 (Fed. Cir. Dec. 15, 2023).
