Eleanor B. Atkins
Subscribe to Eleanor B. Atkins's PostsEleanor (Ellie) B. Atkins focuses her practice on trademark, copyright, sweepstakes and promotions, and false advertising matters. Ellie is experienced in client counsel, strategy and legal research, including portfolio management and the selection, clearance, prosecution, registration and enforcement of trademarks. Additionally, she has assisted with district court litigation as well as actions before the Trademark Trial and Appeal Board, including drafting complaints, discovery requests and briefs in support of various motions. Read Ellie Atkins' full bio.
Clear Vision: Keyword Search Term Purchase Doesn’t Blur Trademark Lines
By Eleanor B. Atkins on Oct 17, 2024
Posted In Trademarks
Addressing the issue of trademark infringement based on the purchase of search advertising keywords, the US Court of Appeals for the Second Circuit joined the consensus view and upheld a district court decision finding that the mere purchase of a search advertising keyword containing another’s trademark does not by itself constitute trademark infringement. 1-800 Contacts,...
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Easy Tiger: Docuseries Summary Judgment Remanded for Further Fair Use Consideration
By Sarah Bro and Eleanor B. Atkins on Apr 11, 2024
Posted In Copyrights
Addressing copyright fair use in the wake of the Supreme Court’s recent guidance in Warhol, the US Court of Appeals for the Tenth Circuit partially reversed the district court’s grant of summary judgment in favor of the defendants. The Tenth Circuit held that the first fair use factor (the purpose and character of the use)...
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District Court Subpoena Power Plays “Supporting Role” to PTO Rules
By Eleanor B. Atkins on Mar 21, 2024
Posted In Trademarks
Addressing the subpoena power of district courts to compel evidence for use in US Patent & Trademark Office (PTO) proceedings, the US Court of Appeals for the Fourth Circuit upheld a district court’s decision (albeit on alternative grounds), holding that district courts’ authority to issue subpoenas in support of PTO proceedings is limited by the...
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Trademark Trial & Appeal Board Gets a DuPont 101 Lesson
By Eleanor B. Atkins on Feb 22, 2024
Posted In Trademarks
Addressing errors in the Trademark Trial & Appeal Board’s likelihood of confusion analysis in a cancellation action, the US Court of Appeals for the Federal Circuit vacated and remanded, holding that the Board erred by failing to give sufficient weight to the first DuPont factor (similarity of the marks) and failing to consider the relevant...
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SHAZAM! CAPTAIN CANNABIS Registration Defeated by Prior Analogous Trademark Use
By Eleanor B. Atkins on Jan 18, 2024
Posted In Trademarks
Addressing the issue of analogous trademark use, the Trademark Trial & Appeal Board designated precedential a September 6, 2022, decision in which the Board cancelled a registration for CAPTAIN CANNABIS based on the petitioner’s evidence of prior use that was “analogous to trademark use.” Laverne John Andrusiek v. Cosmic Crusaders LLC and Lewis J. Davidson,...
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Tenth Circuit Contributes Clarity to Contributory Liability in Copyright Infringement
By Eleanor B. Atkins on Nov 9, 2023
Posted In Copyrights
Addressing the elements of contributory copyright infringement, the US Court of Appeals for the Tenth Circuit found that a plaintiff had plausibly alleged contributory copyright infringement when he alleged that the defendants had “caused, materially contributed to, or authorized the direct infringement” of his copyrights. Greer v. Moon, et al., Case No. 21-4128 (10th Cir....
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It’s a Taking: Copyright Deposit Requirement Violates Fifth Amendment
By Eleanor B. Atkins on Sep 7, 2023
Posted In Copyrights
Addressing the issue for the first time, the US Court of Appeals for the District of Columbia found that the Copyright Act of 1976’s requirement to deposit two copies of a work with the Library of Congress within three months of the work’s publication was unconstitutional under the Fifth Amendment’s Takings Clause. Valancourt Books, LLC...
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Change in Law Leading to Case Dismissal Doesn’t Preclude Attorneys’ Fees
By Eleanor B. Atkins on Aug 24, 2023
Posted In Copyrights
Addressing the symmetrical fee-shifting provision of the Copyright Act and whether a prevailing defendant was entitled to fees even when the plaintiff moved to dismiss the case in response to a change in law, the US Court of Appeals for the Seventh Circuit reversed the district court’s denial of attorneys’ fees and remanded the case...
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Hairy Situation: Trademark Act Doesn’t Provide Consumer Standing
By Eleanor B. Atkins on Jun 1, 2023
Posted In Trademarks
The US Patent & Trademark Office Trademark Trial & Appeal Board found that a consumer did not have standing to oppose an application for registration because the consumer failed to establish a commercial interest and injury that would be proximately caused by the registration of the mark. Rebecca Curtin v. United Trademark Holdings, Inc. (TTAB...
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Took a DNA Test, Turns Out “100% THAT BITCH” Is 100% Registrable
By Eleanor B. Atkins on Feb 16, 2023
Posted In Trademarks
Addressing a refusal to register for failure to function as a trademark, the Trademark Trial & Appeal Board (Board) reversed, finding that the evidence of consumer perception of “100% THAT BITCH” did not demonstrate that the proposed mark is such a widespread and common expression that it failed to function as a source identifier. In...
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