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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Delaware Intellectual Property Litigation Blog

Wilmington attorney Gregory B. Williams explores the decisions issued by the U.S. District Court of Delaware in the areas of antitrust and intellectual property law.
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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 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
  • Judge Andrews Denies Defendants’ Motion for Judgment on the Pleadings Asserting Lack of Patent-Eligible Subject Matter By Memorandum Opinion entered by The Honorable Richard G. Andrews in Sonos, Inc. v. D&M Holdings Inc. et al., Civil Action No. 14-1330-RGA (D.Del. March 13, 2017), the Court denied Defendants’ Motion for Partial Judgment on the Pleadings for Lack of Patent-Eligible Subject Matter under Section 101 of the Patent Act, 35 U.S.C. § 101. The patents at issue in the motion were U.S. Patent Nos. 8,588,949 (“the ‘949 patent”), 7,571,014 (“the ‘014 patent”), 9,202,509 (“the ‘509 patent”), and 9,219,959... 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
  • Chief Judge Stark Grants Defendants’ Motion for Summary Judgment of Non-Infringement in ANDA Action By Memorandum Opinion entered by The Honorable Leonard P. Stark in Reckitt Benckiser LLC v. Aurobindo Pharma Ltd., Civil Action No. 14-1203-LPS (D.Del. March 6, 2017), the Court granted Defendants’ motion for summary judgment of non-infringement of the asserted claims of U.S. Patent No. 6,955,821 (“the ‘821 patent”) and U.S. Patent No. 7,838,032 (“the ‘032 patent”) with respect to Defendants’ proposed generic version of Mucinex® DM, an extended-release tablet that contains dextromethorphan hydrobromide and guaifenesin. The claim limitations of the... 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
  • Chief Judge Stark Grants Defendants’ Joint Motion to Stay Utilizing First-Filed Rule By Memorandum Order entered by The Honorable Leonard P. Stark in Beijing Sinotau Medical Research Co., Ltd. v. Navidea Biopharmaceuticals, Inc., et al., Civil Action No. 17-110-LPS-MPT (D.Del. March 1, 2017), the Court granted defendants’ joint motion to stay the action filed by plaintiff in the District of Delaware pursuant to the “first-filed” rule. In granting the motion, the Court explained that (1) defendant Navidea had filed an action against plaintiff Beijing Sinotau in the Southern District of Ohio the... More
  • Judge Sleet Finds that Actavis’ Proposed ANDA Products Infringe Recro’s Asserted Patents By Memorandum Opinion entered by The Honorable Gregory M. Sleet in Recro Gainesville LLC v. Actavis Laboratories FL, Inc., Civil Action No. 14-1118-GMS (D.Del. February 24, 2017)(consolidated), the Court, following a three-day bench trial and having considered the entire record in the case and the applicable law, concluded that Actavis’ proposed ANDA products infringe all of the asserted claims of U.S. Patent No. 9,132,096 (“the ‘096 patent”) and U.S. Patent No. 6,902,742 (“the ‘742 patent”). As a result, the Court... 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
  • Chief Judge Stark Grants Defendants’ Motion for Summary Judgment of Patent Ineligibility By Memorandum Opinion entered by The Honorable Leonard P. Stark in Intellectual Ventures I LLC et al. v. Symantec Corp. et al., C.A. No. 13-440-LPS (D.Del. February 13, 2017), the Court granted Defendants’ motion for summary judgment of patent ineligibility upon finding that the claims at issue – claims 25 and 33 of U.S. Patent No. 5,537,533 (“the ‘533 patent”) – (1) are directed to an abstract idea, and (2) fail to include any inventive concept sufficient to elevate them... 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
  • Judge Andrews Grants in Part Teva’s Motion to Dismiss ANDA Complaint By Memorandum Opinion entered by The Honorable Richard G. Andrews in Endo Pharmaceuticals Inc. et al. v. Actavis Inc. et al., Civil Action No. 14-1381-RGA (D.Del. February 8, 2017), the Court granted defendant Teva Pharmaceuticals USA, Inc.’s motion to dismiss Counts II and VI of the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). With respect to Counts II and VI, Teva argued that it was not a proper defense because “all alleged... More
  • District of Delaware Announces Judge Sue Robinson’s Transition to Senior Judge The United States District Court for the District of Delaware announced that, effective February 3, 2017, the Honorable Sue L. Robinson, transitioned to Senior Judge.  In the announcement, the Court also set forth certain changes to its case assignment practices given Judge Robinson’s transition to a Senior United States District Judge.  In short, Judge Robinson will not be assigned any new criminal cases or new civil cases.  Until the vacancy is filled, all new criminal cases will be assigned to Chief Judge Stark, Judge... 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