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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

  • 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
  • FTC Secures Refunds for Indoor Tanning System Consumers In April 2016, the FTC filed a Complaint against Dr. Joseph Mercola and his companies alleging that their indoor tanning system advertisements violated section 5(a) of the FTC Act, which prohibits unfair or deceptive practices in commerce, and section 12(a) of the FTC Act, which prohibits the dissemination of false advertisements in commerce for the purpose of inducing the purchase of foods, drugs, devices, services, or cosmetics.  According to the FTC, indoor tanning systems qualify as “devices” under the FTC... More
  • When Sale Prices Never End, the Litigation Also Never Ends Several large retailers likely thought that they were finally clear of legal problems relating to advertising sale prices for products that were not truly on sale.  With a post on September 28, 2016, https://advertisinglaw.foxrothschild.com/?s=class+action, Dennis Hansen discussed these class action lawsuits, several which have settled for millions of dollars.  For example, JC Penny paid $50 million to settle a class action suit against it alleging that its advertised and listed sale prices were not actually sale prices, but were more... More
  • LIFEPROOF: What’s in a Word? What comes to mind when you hear the term “LifeProof”? Does it immediately make you think of something that protects from all of life’s hazards or does it merely suggest that something can withstand various accidents? That is what the Ninth Circuit in California is deciding in Seal Shield LLC v. Otter Products LLC, et. al. after hearing oral arguments on the topic in January. The issues central to the case hammer home the importance of using your trademarks in the right... More
  • Swiss Based Responsible Art Market Initiative (RAM) Develops Art Market Best Practices for Free Ports and Custom-Free Zones In an attempt to curb illicit trafficking of fine art and antiques, a group of Geneva based art professionals known as the Responsible Art Market Initiative (RAM), which include dealers and art law attorneys, will publish a dossier on art market best practices for free ports and custom-free zones. There have been numerous reports of looted art appearing in free ports. Of recent note, an Amedeo Modigliani painting worth approximately $20 million with Nazi links was located last year in the Geneva free port.  However,... More
  • But Officer, My App Said I Was OK To Drive … FTC Hammers Allegedly Deceptive Advertising of Breathalyzer App The FTC recently cracked down on Breathometer, Inc., the maker of an app-supported smartphone breathalyzer, for false and deceptive advertising. The advertised purpose of the product is to keep people safe—to let someone know when he/she has had too many to drive, and provide an estimate on when sobriety will return.  The device, which connects to an app on a smartphone, allows the user to blow into it and receive a blood-alcohol content reading on their phone.  The accuracy of the... More
  • Con Artists Roll Out The Red Carpet To Trademark Owners Registering your brand name as a trademark domestically or internationally can be a long, confusing process involving obscure governmental agencies requiring various fees at seemingly random intervals. Some of these demands are legitimate (International Bureau of the World Intellectual Property Organization notification that payment of a 2nd part fee is due in Swiss francs): but many others are NOT (WPAT s.r.o. invoice for 2738$ “on or before”, 2798$ “after”). These solicitations arrive because the process of registering a trademark creates a... More
  • Anticipated Oral Argument Finally Heard This morning, the United States Supreme Court heard the long-anticipated oral argument in the Lee v. Tam trademark dispute. The issue in the case, as reported on the SCOTUS blog, is as follows: “Whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it ‘[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or... More
  • Richard Polsky Art Authentication Offers New “Preliminary Opinion Service” Richard Polsky writes: As the owner of Richard Polsky Art Authentication, I’ve always believed that authenticity is the bedrock of any art transaction, which seems to have been proven out by the constant stream of related articles in the New York Times. During the last six months alone, we’ve been treated to the spectacle of the Knoedler gallery scandal for selling fake canvases by Jackson Pollock, Mark Rothko, Robert Motherwell, and others. Then there was the dealer Mary Boone pulling a... More
  • DOJ and FTC release new Antitrust Guidelines for Licensing of Intellectual Property Updating policies that had been on the books for more than two decades, the U.S. Department of Justice and the Federal Trade Commission recently issued new Antitrust Guidelines for the Licensing of Intellectual Property. The new Guidelines include several updates that reflect changes in the law since the 1995 guidelines were issued. For example, the new Guidelines now permit intellectual property license agreements to explicitly include provisions on resale price without being per se illegal. (Instead, price restraints in licensing agreements will now be analyzed... More
  • Smithsonian American Art Museum Offers America InSight Tours For Blind And Visually Impaired Art Enthusiasts I was very inspired after reading this recent online NPR article on blind and visually impaired art enthusiasts being able to “see” and experience works of art at the Smithsonian American Art Museum in Washington, D.C. through uniquely guided tours.  The museum offers America InSight tours twice a month led by specially trained docents to blind and visually impaired visitors. During these specially guided tours, the dozen or so volunteer docents use verbal descriptions of artwork as well as other senses in... More
  • Federal Circuit: obviousness requires a clear and explicit explanation The Federal Circuit recently vacated a Patent Trial and Appeals Board (PTAB) decision that found obvious several claims of a patent application relating to methods for re-configuring icons on a touch-sensitive display. In In re Van Os (Fed. Cir. Jan. 3, 2017), the court’s decision focused on the PTAB’s failure to provide sufficient reasoning for the rejection, rather than the question of whether or not the claims were in fact obvious. The claims related to a user interface for a touch-sensitive display that would enter... More
  • Polish Government Signs Agreement To Purchase Significant Private Art Collection In recent art world news, on December 29, 2016, the Polish government signed an agreement with the privately owned Princes Czartoryski Foundation to purchase the Czartoryski art collection, which is recognized as one of Europe’s most significant private art collections.  The family foundation has administered the collection since its inception in 1991. The Czartoryski art collection includes 250,000 historic manuscripts and documents, some of which were previously owned by Polish kings.  The treasured collection also includes 86,000 museum artifacts of which... More
  • How long does it take for the USPTO to issue a patent or register a trademark? (2016 edition) At the end of each fiscal year, the USPTO releases a Performance and Accountability Report, with statistics about patent and trademark allowance rates, average pendency, and other details. The USPTO recently released its Performance and Accountability Report for Fiscal Year 2016. This means that it’s time for IP Spotlight’s annual review of the question:  “how long does it take to receive a patent or trademark registration?” To answer that question, here are a few highlights from the USPTO’s FY 2016 report: Patents:  The USPTO continued a five-year trend of... More