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Kennedy Law Blog
SCOTUS Rules Lanham Act’s Disparagement Clause Unconstitutional
The Supreme Court ruled in a unanimous decision this morning that the disparagement clause of the...
What is Trade Dress?
Trade dress generally refers to product packaging or the overall general appearance and image of a...
Fifth Circuit Adopts the Octane Standard for Fee Awards in Trademark Cases
The Fifth Circuit Court of Appeals has adopted the United States Supreme Court’s standard announced in Octane Fitness, LLC v. Icon Health and Fitness, Inc., 13 S. Ct. 1749 (2014). Octane was a patent case that determined when fee awards may be available under the...
Redskins File Writ
The Washington Redskins have filed a petition for writ of certiorari, asking the Supreme Court to hear their trademark case along with a review of In re Tam. We’ve previously covered In re Tam and the Redskins trademark cases here on the blog. If you need a refresher...
A Clear and Unmistakable Rule in Patent Law
Earlier this year, the Federal Circuit issued an opinion on claims construction that is of growing interest to IP litigators and patent prosecutors alike. According to the Federal Circuit, for a prosecution disclaimer to be found, the disavowing actions must be both...
Trademark Maintenance
After registration of a federal trademark, the mark owner must meet several important maintenance deadlines. Failure to comply with required post-registration trademark maintenance filings will result in cancellation of the trademark. On January 27, 2015, the USPTO...
Kirtsaeng’s Fee Dispute Heads to the High Court
Supap Kirtsaeng will be returning to the Supreme Court this year. Kirtsaeng won a landmark victory in 2013 when the high court held that the first sale doctrine applies to lawfully made copies of works made abroad. Mr. Kirtsaeng purchased foreign editions of textbooks...
How Strong is Your Brand, Part V
A fanciful trademark is an invented word that serves no other purpose than to assist a consumer to identify and distinguish your goods or services. It may consist of a combination of letters and/or symbols. Examples of famous fanciful marks include EXXON, KODAK, and...
How Strong is Your Brand? Part IV
An arbitrary trademark generally consists of a word that has nothing to do with the services or goods with which it is associated. For example, the trademark “Apple” is a well-known arbitrary mark that will be familiar to most readers. Under the common understanding...
Federal Circuit Rules Disparagement Provision of Lanham Act is Unconstitutional
The Court of Appeals for the Federal Circuit has issued its ruling in In re Tam. In a surprising move and with a 9-3 vote, the panel ruled that the Lanham Act’s disparagement provisions are unconstitutional because they constitute an impermissible restriction on...
Overtime Pay: Options For Employers to Reduce Costs
A. Basic Overtime Rate: The Fair Labor Standards Act (“FLSA”) mandates that all employees not “exempt” from overtime pay be paid overtime for all hours “actually worked” in excess of 40 in any single workweek at a rate of 1 ½ times the “regular rate” of pay. This...