Consider this: 83 percent of marketers have indicated that social media is important for their businesses, according to the Social Media Examiner. In 2013, spending on social media ads in the U.S. was $6.2 billion, accounting for nearly 14 percent of all online advertising. And, according to the SocialTimes, businesses have projected doubling their social media marketing budgets in the next five years.
We usually think of a trademark or service mark as a two-dimensional spoken word or phrase, or design used to identify a product or service. As technology has advanced and products and services now are marketed in a wide variety of new ways, nontraditional trademarks are gaining in popularity. Examples of nontraditional trademarks that companies have registered successfully through the United States Patent and Trademark Office (“U.S.P.T.O.”) include sound, motion, texture, color, fragrance, product shape, and product packaging. Cutting-edge marketers, however, may discover that registering some nontraditional trademarks is much easier than registering others.
The show’s over. The fat lady has sung. Elvis has left the building. The "King" is dead. On Aug. 22, 2011, the Ninth Circuit, in Flexible Lifeline Sys. Inc. v. Precision Lift Inc., No. 10-35987, 2011 (D. Mont. Aug. 22, 2011), used such popular catchphrases to emphasize that its holding in Elvis Presley Enters. Inc. v. Passport Video, 349 F.3d 622 (9th Circuit 2003), was overruled. The Elvis Presley case had upheld long-standing precedent in the Ninth Circuit: If copyright owners established a likelihood of success on the merits, courts could just presume that, absent injunctive relief, they likely would suffer irreparable harm. Citing the U.S. Supreme Court’s holdings in eBay and Winter, the Ninth Circuit held that this presumption was no longer viable.
Color can be an integral element in the marketing of products and services. It telegraphs to consumers an immediate, distinctive message about the product or service. For example, white usually conveys the idea of purity or cleanliness, while gray can evoke an industrial, commercial or modern feel.
Lawyers are trained in subtlety and complication. Consequently, they have a tendency to over- think, which is why some of the better ones try to remember, and occasionally apply, the acronym KISS. 1 The recent quagmire addressing the question posed above (and related questions) could have been avoided by deft application of KISS, or even RTSF (meaning to be disclosed later).
On November 25 of last year, Daniel C. DeCarlo explained the “growing rift between the Second Circuit and everywhere else” as to whether purchase of another’s trademark as a search-engine keyword, or use of another’s trademark in Web site metadata, constitutes “use in commerce” for trademark infringement purposes.
A federal appellate court recently became the first to weigh in on a narrow but increasingly relevant issue of copyright law that frequently revolves around the use or modification of software: whether an accused infringer of an unregistered copyright in software may “seek a federal declaratory judgment to clear up whether [its] actions are infringing even though the copyright holder threatens future infringement litigation.” According to the broadly worded holding of the U.S. Court of Appeals for the Eleventh Circuit in Stuart Weitzman LLC v. Microcomputer Resources Inc., 542 F.3d 859, 867 (11th Cir. 2008), the clear answer is, “No.”
Imagine you are an executive for a software provider and your biggest competitor just filed an unfair competition lawsuit in state court, alleging your product illegally copies or infringes its product. To compound things, the competitor’s sales force is disseminating “pirating” allegations to your shared customer base, creating an unflattering buzz about your company.