An owner of a trademark or service mark used in commerce may request registration on the principal register by filing an application with United States Patent and Trademark Office. The registration provides certain benefits including prima facie proof of ownership and validity and constructive use throughout the country. While registration is great for brand management
Sonny Chastain
Copyright Office Denies Registration of Computer-Generated Art
Steven Thaler filed an application for copyright registration in a two-dimensional image entitled “Creativity Machine”. In his application, Thaler stated that the work “was autonomously created by a computer algorithm running on a machine”. The Review Board of the United States Copyright Office (“Board”) denied the application stating it lacked human authorship necessary to support…
Court Finds Tweet To Be Fair Use
Dr. Keith Bell published a book in 1982 entitled Winning Isn’t Normal which provides strategies for success in athletics. He markets the books through online retailers and his own website. One of the passages in the book that is well known is entitled the WIN Passage. He offers merchandise, including t-shirts and posters, that display…
Fifth Circuit Rules Use of Vizzy and Brizzy For Seltzer Not Confusing
Future Proof Brands, L.L.C. (“Future Proof”) filed a trademark infringement action against Molson Coors Beverage Co. (“Coors”) objecting to its use of the mark Vizzy. Future Proof used and registered the mark Brizzy as a brand of hard seltzer containing carbonated water, alcohol and in most cases fruit flavors. When Coors branded its hard seltzer…
Jazz Musician Fails to Produce Evidence of Copying
The Fifth Circuit Court of Appeal recently addressed a copyright infringement claim by local jazz musician Paul Batiste. Batiste alleged that a hip-hop duo infringed his musical work. However, the Court concluded that Batiste had failed to produce evidence for a reasonable jury to infer that the defendants had access to his music or to…
Don’t Forget the Registration Symbol
A federal registration of a trademark with the United States Patent and Trademark Office constitutes constructive notice of a registrant’s claim of ownership thereof. Pursuant to 15 U.S.C. §1111, a registrant may give notice that the mark is registered by displaying with the mark the words “registered in U.S. Patent and Trademark Office” or “reg.…
Supreme Court Rules Copyright Claim Requires Registration
On March 4, 2019 the United States Supreme Court issued a unanimous decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC clearing up that registration is a jurisdictional prerequisite to filing a copyright action. In the opinion authored by Justice Ginsburg, the Supreme Court concluded that a copyright claimant may commence an infringement suit…
Trademark Ownership Based on Actual Use
The Federal Circuit in Lyons v. American College of Veterinarian Sports Medicine, 859 F. 3d 1023 (Fed. Cir. 2017) addressed trademark ownership, distinguishing between an idea, concept, mere preparation to use and actual use. Between 1999 and 2001 Sheila Lyons and other veterinarians formed an organizing committee and began using the mark “The American…
Dilly Dilly on Infringement Demand
In its recent campaign, Bud Light recognizes true friends of the Crown by raising a cold adult malted beverage and chanting Dilly Dilly. The marketing slogan was created apparently coming out of nonsense and fun. In its campaign, Bud Light seems to want people to celebrate with a lighthearted toast of Dilly Dilly and escape…
General Mills Not Cheery about TTAB Ruling
General Mills filed an application to register the color yellow appearing as the uniform background on a box of Cheerios. It contended that consumers have come to identify the color yellow specifically with Cheerios, when used in connection with the goods. It submitted survey evidence and expert reports to support the claim of acquired distinctiveness. …