Landslide® January/February 2021

Intellectual Property

Is It Functional or Is It Functional? Trade Dress vs. Design Patent “Functionality”

Manon Burns and Lisa Holubar

A product design may be protected through either or both trade dress and design patent law. However, the concept of functionality limits both types of protection in different ways.

Internet

Protecting Children’s Privacy in the Age of Smart Toys

Madhavi K. Seth

The FTC’s COPPA Rule outlines a compliance plan for businesses to comply with COPPA and implement key protections with respect to internet-connected toys and associated services.

Copyright

The Limited Copyright Protection for Playing Cards

Elana Greenway Faniel

Card game rules and the cards themselves fall into two categories of copyrightable works: literary works and visual works. However, the game itself is an idea that is not protectable.

Trade Regulation

Game Over: Trade Barrier Impacts on Intellectual Property in the Toy and Game Industry

Kathryn Dachille

Explore the effects tariffs would have on an already struggling industry and its consumer base.

Trademarks

Parody Chew Toys and the First Amendment

Jared I. Kagan and Emily R. Hush

The Ninth Circuit applied the Rogers test, which balances First Amendment and trademark interests, to the use of Jack Daniel’s famous trade dress on a dog toy.

Internet

Trademark Law’s Monopoly Problem: The Supreme Court on Generic Terms as Trademarks

Christine Haight Farley

In its first domain name case, the Court, choosing not to apply its own precedent, held that a term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers.

Copyright

The Visual Artists Rights Act: A Legal Tool to Preserve Modern Protest Art

Caleb L. Green

During the recent public outcry for social justice reform, protestors have harnessed the power of art and murals to express social statements.

Patents

Selection of Activity by the Federal Circuit in the Lead Compound Analysis

Gary Lee Juskowiak II

In determining whether claims directed to chemical compounds are obvious, the Federal Circuit has focused on the activities disclosed for the claimed compounds as opposed to other activities disclosed in the prior art.

General Practice

Who Ya Gonna Call? Myth Busters!

C. Edward Good

Can a sentence begin with a conjunction? Can infinitives and multiword verbs be split? Should contractions be avoided in formal writing?

Intellectual Property

Hope in the Era of the Not Normal

June M. Besek

A message from the ABA-IPL chair.

Trademarks

The Price of Recklessness: Disgorgement of Profits in a Post-Romag World

Josh Escovedo and Zack Thompson

By allowing a profits award when infringement is perpetrated with a mental state less than willfulness, Romag incentivizes companies using foreign manufacturers to innovate in order to mitigate these risks.

Trademarks

ABA Amicus Brief in Romag v. Fossil

The U.S. Supreme Court's opinion in Romag v. Fossil sides with the position in the ABA's amicus brief.

Intellectual Property

Decisions in Brief

John C. Gatz

Brief synopses of recent decisions involving copyrights, patents, trade secrets, and trademarks.