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U.S. Supreme Court Drums Out the Prohibition of Disparaging Trademarks—Free Speech Rocks On

By Chandler Schmidt

In Matal v. Tam, the United States Supreme Court struck down a provision of the Lanham Act that barred registration of disparaging trademarks, such as trademarks using racist or offensive messages.  The provision is codified under 15 U.S.C. § 1052(a) and states in relevant part that one may not register a trademark that “disparage[s]…or bring[s]…into contemp[t] or disrepute” any “persons, living or dead.”

The case arose when a rock band called “The Slants” (comprised of Asian-Americans) tried to register its name as a trademark at the USPTO.  “Slants” is a pejorative term historically used to insult people of Asian descent.  In naming itself “The Slants”, the band was trying to reclaim the term in a more positive light.  The USPTO denied their application under the statute above arguing “slants” is a disparaging term.  A member of the band appealed the denial to the Federal Circuit, which said the prohibition violated the Free Speech Clause of the First Amendment.

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Supreme Court Finds Copyright Protection in Cheerleader Uniform

By Bejamin Grohmann - On March 22, 2017, the U.S. Supreme Court reached a decision in the case of Star Athletica, LLC v. Varsity Brands, Inc., in which the Court held that artistic designs incorporated into cheerleading uniforms are eligible for copyright protection. Prior to this decision, artistic elements of clothing items were typically not copyrightable under the “useful article” doctrine, because they were not considered sufficiently separable from the functional clothing items to which they were attached.

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Supreme Court Strikes Down Laches as a Viable Defense to Patent Infringement

By Chris Dawson

In a 7-1 opinion authored by Justice Alito, the U.S. Supreme Court held today in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, No. 15-927, that laches is no longer a viable defense to patent infringement. SCA accused First Quality of infringing its patent directed to adult incontinence products, and, as expressly permitted under 35 U.S.C. § 286, sued for six years’ worth of damages. First Quality countered that that action was barred by the equitable doctrine of laches because SCA knew of First Quality’s alleged infringement in 2003, yet waited until 2010 to bring suit.

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Re-Register Your DMCA Agent in 2017 to Stay in the “Safe Harbor”

By Dianne M. Smith-Mismer

Internet service providers (ISPs) rely on the Digital Millennium Copyright Act’s (“DMCA”) to shield themselves from liability for infringing content posted on the websites that they host.  The DMCA’s “safe harbor” provision allows ISPs to provide interactive websites where users can exchange content, ideas and images without the risk of being liable for copyright infringement.  But to take advantage of the safe harbor provision, ISPs must register their DMCA agent with the U.S. Copyright Office and comply with other basic requirements. 

ISPs who have previously registered their DMCA agent as of December 16, 2016 must re­-register by December 31, 2017.   Though there have been no substantive changes to the safe harbor provision, ISPs must now register their agents in the new electronic DMCA Designated Agent Directory. The online process is quick, easy and costs just $6. 

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