Karen Gover
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Fourth Estate Redux: Dismissal for Lack of Registration Not on the Merits
By Karen Gover on Jun 20, 2024
Posted In Copyrights
In the latest development of a complicated eight-year court battle regarding a copyright infringement claim, the US Court of Appeals for the First Circuit vacated and remanded the district court’s dismissal on claim preclusion grounds. The Court concluded that dismissal for failure to register the copyright was not “on the merits,” and therefore preclusion did...
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New Arguments Yield Same Unpatentability Outcome
By Karen Gover on Jun 13, 2024
Posted In Patents
On remand from the US Court of Appeals for the Federal Circuit in connection with inter partes review (IPR) proceedings, the Patent Trial & Appeal Board considered the petitioner’s reply arguments and evidence regarding the claim constructions that were first proposed in the patent owner’s response but again found that the claims were not unpatentable....
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Sour Grapes: Winery Minority Ownership Insufficient for Statutory Standing at Trademark Board
By Karen Gover on May 30, 2024
Posted In Trademarks
The US Court of Appeals for the Federal Circuit affirmed the dismissal of a petition seeking to cancel the registered marks of two wineries, finding the petitioner (a trust owning an interest in a competitor winery) lacked statutory standing under 15 U.S.C. § 1064. Luca McDermott Catena Gift Trust v. Fructuoso-Hobbs SL, Case No. 23-1383...
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Second Circuit Tells Rapper to Face the Music for Failing to Register the Work
By Karen Gover on May 23, 2024
Posted In Copyrights
The US Court of Appeals for the Second Circuit affirmed the dismissal of a copyright infringement claim by one rap artist against another on the grounds that the plaintiff failed to register the work in question. The Court emphasized the distinction between a musical work and a sound recording of that work, noting that they...
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Take Three for Take-Two: Jury Finds Implied License for Tattoos on Video-Game Avatar
By Karen Gover on May 9, 2024
Posted In Copyrights
A jury rejected allegations that a video-game maker’s use of tattoos in a game violated the copyright of the artist who inked them, finding the video-game maker had an implied license to depict a player’s tattoos in its likeness of him. Hayden v. 2K Games Inc., Case No. 1:17-cv-02635 (N.D. Ohio) Jimmy Hayden is a...
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It May Be a Hairy Situation, but Detailed Declaration Sufficient Evidence of Prior Use
By Karen Gover on May 9, 2024
Posted In Trademarks
The US Court of Appeals for the Federal Circuit affirmed the Patent Trial & Appeal Board’s refusal to register a mark, finding that an unchallenged, detailed declaration by the opposing company’s director sufficed as substantial evidence of prior use. Jalmar Araujo v. Framboise Holdings, Inc., Case No. 23-1142 (Fed. Cir. Apr. 30, 2024) (Lourie, Linn,...
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Late Expert Report Dooms Copyright Case
By Karen Gover on Apr 18, 2024
Posted In Copyrights
The US Court of Appeals for the Sixth Circuit weighed in for a third time on an eight-year copyright battle, this time finding that a district court did not abuse its discretion in excluding the plaintiff’s proposed expert or granting summary judgment to the defendant with respect to a copyright claim related to software. RJ...
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All That Glitters: Use of Registered Mark To Describe Watch Color Was Fair Use
By Karen Gover on Mar 28, 2024
Posted In Trademarks
The US Court of Appeals for the Second Circuit affirmed a district court’s grant of summary judgement to a luxury-watchmaker defendant, holding that its use of a registered and incontestable trademarked term was fair use because it was used descriptively and in good faith. Solid 21, Inc. v. Breitling U.S.A., Inc., Case No. 22-366 (2d...
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Read the Fine Print: Covenant Not to Sue “At Any Time” Terminated Upon License Expiration
By Karen Gover on Mar 14, 2024
Posted In Patents
Illustrating the importance of carefully drafting and reviewing language in a covenant not to sue, the US Court of Appeals for the Federal Circuit found that the plain language of a covenant permitted a licensor to sue a licensee for breach of contract only after termination of the contract. AlexSam, Inc. v. MasterCard Int’l., Inc.,...
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Rock On: Clichéd Song Themes Don’t Infringe Copyright
By Karen Gover on Mar 7, 2024
Posted In Copyrights
The US Court of Appeals for the Fifth Circuit affirmed a district court’s summary judgment grant to an alleged song copier, finding neither evidence of factual copying nor striking similarity between the two songs. Kirk Johnston v. Chad Kroeger et al., Case No. 23-50254 (5th Cir. Feb. 19, 2024) (Jones, Haynes, Douglas, JJ.) (per curiam)...
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