Landslide® September/October 2021

Trademarks

Functionality Crumbles under Pocky

Brent M. Radcliff and Alessandra G. Masciandaro

In a popular cookie case, the Third Circuit equated “functional” with “useful.” The subsequent unrest highlights the long-standing need for clarity on functionality.

Patents

The USPTO’s New Director Review Procedure Post-Arthrex

David McCombs, Eugene Goryunov, and Jonathan Bowser

The Supreme Court agreed with the Federal Circuit that administrative patent judges were unconstitutionally appointed but crafted a different remedy giving the director discretion to review their decisions.

Trademarks

What Does Arthrex Mean for the Trademark Trial and Appeal Board?

Michelle M. Tourtillott and Richard B. Biagi

Recent amendments to the Lanham Act support the position that administrative trademark judges are inferior officers, and the Supreme Court’s decision arguably renders moot the constitutionality of their appointments.

Trademarks

Behind the Scenes of the Trademark Modernization Act: An Interview with Stephen Lee

Target Corporation’s Chief Intellectual Property Counsel takes a closer look at the Trademark Modernization Act, the reasons it was passed, and the impact it will have on brands and trademark registrants going forward.

Patents

The Law of District Court Stays for USPTO Proceedings

Jonathan Stroud

In determining whether to grant a stay, judges look to whether the stay will simplify issues at trial, whether discovery is complete and a trial date is set, and whether a stay will unduly prejudice the nonmoving party.

Copyright

Next Picasso, Ponzi Scheme, or IP Boom? NFTs in the Eyes of the Beholder

Chris Katopis

Non-fungible tokens are a new type of art powered by cryptographic technology and raise copyright legal and policy issues.

Copyright

The Copyrightability of Cultural Heritage: A Case Study of the Legal Battle over the Nefertiti Bust

Emma K. Blumenthal

The legal status of 3D scans of antiquities is unclear, leaving open the question of who controls access to and use of these scans.

Trademarks

Trademarking a Movement: The Branding of Black Lives Matter

Nicole Gaither

Since 2015, applicants have attempted to get exclusive rights to Black Lives Matter as a brand. Can Black Lives Matter be granted trademark rights, and if so, who will own the rights?

Copyright

Who’s Zooming Who? Zoom Lectures and Copyright Ownership

Ariel Dubinsky and Rebeccah Gan

Explore who owns the copyrights to an academic or other type of lecture delivered through Zoom and what is considered to be acceptable or fair use by the students and participants.

Trademarks

The Growing Threat of Trademark Scams

Erik M. Pelton and Olivia M. Muller

While the U.S. Patent and Trademark Office has made efforts to increase notice to the public regarding trademark scams in recent years, the scammers have not been thwarted.

Intellectual Property

A Few Lessons, Lots of Gratitude

Kim R. Jessum

The chair of the ABA Section of Intellectual Property Law reflects personally and professionally on the past year and a half of the pandemic and looks forward to leading the Section in continuing its great work.

Intellectual Property

September/October 2021 Decisions in Brief

John C. Gatz

Review brief synopses of recent court decisions involving copyrights, patents, trade secrets, and trademarks.