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Above the Fold

The increasingly scrutinized area of advertising and marketing has a wealth of legal hurdles. When creating content, advertising professionals and companies often find themselves in hot water with various regulatory agencies, such as the Federal Trade Commission. In this blog, our team of seasoned media and trademark attorneys address emerging trends and issues in this complex area.
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Art Law

Attorneys Daniel Schnapp, Lisa Karczewski and John Wait cover issues relating to art litigation and finance, specifically art recovery, art preservation, art as collateral and valuation of art. They also discuss recent trends in the art market.
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IP Spotlight Blog

Intellectual property is often the lifeblood of a company. As an experienced IP and registered patent attorney, Jim Singer keeps you up-to-date with the legal and business aspects of intellectual property and other intangible assets on his IP Spotlight blog. Covering topics such as licensing, due diligence, acquisition, compliance and risk management associated with patents, trademarks, copyrights and trade secrets, IP Spotlight provides insight, commentary and tips regarding recent legislation and developments in the industry.
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Recent Blog Posts

  • SCOTUS: No laches in patent infringement cases; six-year limit on damages is the rule A recent Supreme Court decision may make it easier for patent holders to assert older patents, as the decision significantly restricts the availability of laches (i.e., unreasonable delay) as a defense to a patent infringement claim. The doctrine of laches allows a court to deny a claim if the plaintiff delayed filing the suit and the delay was unreasonable and prejudicial. The Patent Act also includes a six-year limit on the recovery of damages for patent infringement activities. Until now, most courts interpreted these two... More
  • Using State Of The Art Technology To Solve The Mystery Of Who Is Preserved Beneath The Cloth In recent art news, the New York Times ran a story on this week’s opening of the “Mummies” exhibition at the American Museum of Natural History in New York City.  In the exhibition, more than a dozen specimens are on display, some of which have not been on public view in more than 100 years since the 1893 World’s Columbian Exposition in Chicago.  The new exhibition explores how and why two ancient civilizations, ancient Egypt and pre-Columbian Peru, separated by... More
  • Supreme Court: useful articles such as clothing can include copyrightable elements A new Supreme Court decision helps to clarify the extent to which copyright law can protect design elements of a useful article, such as an article of clothing. The Copyright Act states that “useful articles” are generally not eligible for copyright protection. Because an article of clothing is useful, many courts have limited copyright protection for clothing to elements such as fabric prints. However, in Star Athletica, L.L.C. v. Varsity Brands, Inc., the Court ruled that a design element incorporated into clothing (or... More
  • The FTC Takes “Made in the USA” Advertising Claims Seriously Copyright: lifeking / 123RF Stock Photo In the last two months, the Federal Trade Commission (“FTC”) has reached two settlements related to complaints it initiated against companies regarding “Made in the USA” advertising claims. First, in February, the FTC announced that it had reached a settlement with a Georgia-based water filtration systems company named iSpring Water Systems, LLC.  According to the FTC, iSpring advertised its water filtration systems on its website and through third parties as “Built in USA” (and other similar claims).  The FTC found... More
  • Can a patent expire before it issues?   In certain situations, yes.  Ordinarily, the term of a patent begins on the grant date and ends twenty years after the filing date of the patent. If the patent claims priority to an earlier-filed nonprovisional patent application, then the twenty-year term is calculated from the filing date of the earlier-filed application. However, an unusual situation can arise if a patent claims priority to a patent application that was filed more than twenty years ago. A recent court decision from the Eastern District... More
  • Digitizing Art In The Modern Art World In recent art news, the Frick Collection is among a distinguished group of art institutions around the world that is taking its antiquated system of photography archives and digitizing it such that the photography archives are part of a “mega-size, searchable scholarly database and web portal that will eventually hold 22 million images, 17 million of them artworks and the rest supplemental material.” This collaborative effort of the participating art institutions is known as Pharos, which is an international consortium of... More
  • The Devil with Disclaimers for Descriptive Marks This week, the Federal Circuit issued a new decision that once again reflects the tricky conundrum facing businesses whose trademarks are a collection of descriptive words. In such circumstances, the Patent & Trademark Office – as well as the courts that review PTO decisions – frequently require such a business to “disclaim” any rights in the words that comprise the business’ mark.  This disclaimer requirement is imposed on the grounds that the words in the mark are merely descriptive on their... More
  • US TMs: Use ’em or Lose ’em In the United States, unlike overseas, you get a lot of legal protection right away simply by coming up with a brand name and USING it to sell goods and services. USE is the crucial issue here. This means that we trademark attorneys spend a lot of time thinking about how to prove that our clients’ trademarks have been used. It’s not as easy as it sounds! For example, last month the USPTO’s reviewing board rejected a real estate company’s attempt to... More
  • Suit By Heirs Over Schiele Artwork Cites New Law On Nazi-Looted Art The New York Times recently reported on a lawsuit filed in New York State Court in which the heirs of Fritz Grunbaum are citing the recently enacted Holocaust Expropriated Art Recovery Act (known as the HEAR Act) in an effort to claim two valuable drawings by the late Austrian artist Egon Schiele.  The HEAR Act, adopted last December, has been widely praised as a necessary tool to provide the victims of Holocaust-era persecution and their heirs a fair opportunity to recover... More
  • Sotheby’s Announces Fourth Quarter Earnings For 2016 In an art market that has been defined by the uncertainty of world events and declining inventory, it was reported earlier today that Sotheby’s announced fourth quarter earnings of $65.5 million, which is an increase over that same period in the prior year.  The auction house had a loss of $11.2 million in the fourth quarter of 2015.  Sotheby’s adjusted net income for 2016 was $99.6 million, which is down from $143.1 million in 2015. Sotheby’s has been working to counter... More
  • London Auction Sales Next Week Will Test Strength Of International Art Market In recent art world news, next week’s auction sales of Impressionist, modern and Surrealist art in London will test the strength of the international art market in this current climate of uncertainty.  The art world, of course, is hoping that it will be business as usual and perhaps even a strong market for investment-grade Guaguins and Magrittes. The notable lot is expected to be Gustav Klimt’s vibrant flower painting “Bauerngarten (Blumengarten),” which was created in a garden near Lake Attersee in Austria... More
  • Cat Burglar Receives Eight Year Prison Sentence For Art Heist In Paris In recent art world news, a cat burglar was sentenced to eight years in prison by a criminal court in Paris for stealing five masterpieces from the Paris Museum of Modern Art.  The burglar admitted that he had stolen five paintings worth over 104 million euros (about $110 million) during a predawn break-in at the museum back in May 2010.  The stolen works include paintings by Modigliani, Léger, Braque, Matisse (“Pastoral”) and Picasso (“Dove With Green Peas”). Also given prison sentences... More
  • Honest Reviews, Without Threat of Penalty In December 2016, the Consumer Review Fairness Act became law. On February 21, 2017, the FTC published guidance for businesses in following the new law. The law protects the consumer’s right to express and share his or her honest review of a company or its products, even if the review is negative. To accomplish this, the law targets contractual provisions used by companies to stifle negative reviews. The law specifically prohibits any such provisions, whether in online terms and conditions... More
  • The First Amendment Wins:  ISU Is Barred From Viewpoint Discrimination in Its Trademark Licensing Program For Student Organizations Yesterday, on February 13, 2017, the Eighth Circuit issued a resounding affirmation of First Amendment principles in a case raising the question of just how far a public university can go in preventing the use of its marks by student organizations whose views the university may oppose or object to. We previously discussed the dispute in early December, before the court heard arguments in the case. In the opinion, the unanimous appellate panel held that the First Amendment trumps normal trademark... More
  • Are you using your trademark with ALL of the goods and services listed in your trademark application? On January 19, 2017, the USPTO published a final rule that would allow the USPTO to verify whether trademark holders are using a trademark with all of the goods and services listed in the trademark application or registration. However, the White House’s recent regulatory freeze calls into question whether and when the USPTO will implement the new rule. Before the USPTO will issue a trademark registration, trademark applicants are required to submit proof that they using the mark in commerce. In... More