Above the Fold
Advertising and marketing can pose a wealth of legal hurdles. When creating content, advertising professionals and companies often incur the scrutiny of regulatory agencies, such as the Federal Trade Commission. In this blog, our team of seasoned trademark and media attorneys address emerging trends and issues in this complex area.
Delaware Intellectual Property Litigation Blog
Delaware is an important hub of business litigation and Fox Rothschild partner Gregory B. Williams closely monitors the decisions issued by the U.S. District Court of Delaware in the areas of antitrust and intellectual property law. This blog has become a resource for industry, the legal community and academia by providing concise synopses of the significant rulings from this influential court.
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.
Recent Blog Posts
- Judge Sleet Denies SurgiQuest’s JMOL Motion After Finding Evidence Was Sufficient to Support Jury’s Verdict of False Advertising and Unfair Competition By Memorandum Opinion entered by The Honorable Gregory M. Sleet in SurgiQuest v. Lexion Medical, LLC., Civil Action No. 14-382-GMS (D.Del. May 16, 2018), the Court denied Plaintiff/Counterclaim-Defendant SurgiQuest’s renewed motion for judgment as a matter of law (“JMOL Motion”) on the jury’s verdict which found that SurgiQuest had engaged in false and misleading advertising and unfair competition in violation of the Lanham Act and Delaware common law and awarded monetary damages to Defendant/Counterclaim-Plaintiff Lexion Medical, LLC. The Court also... More
- Electronic Retailing Self-Regulation Program When hoping to resolve advertising concerns or disputes quickly and easily, companies should not only consider utilizing the National Advertising Division (“NAD”), but also the potentially lesser-known Electronic Retailing Self-Regulation Program (“ERSP”). ESRP is a self-regulatory program administrated for the Advertising Self-Regulatory Council (“ASRC”) by the Council of Better Business Bureaus. The program was established in 2004 and its mission is “to enhance consumer confidence in electronic retailing by providing a quick and effective mechanism for resolving inquiries regarding the truthfulness and accuracy of claims in... More
- Judge Andrews Issues Markman Ruling in Infringement Action Construing Thirteen (13) Disputed Terms in Patents-in-Suit By Memorandum Opinion entered by The Honorable Richard G. Andrews in TQ Delta, LLC v. Zyxel Communications, Inc. et al., Civil Action No. 13-02013-RGA (D.Del. May 8, 2018) (consolidated), the Court rendered its Markman ruling construing thirteen (13) disputed terms in U.S. Patent Nos. 7,796,705 (“the ‘705 patent”), 8,335,956 (“the ‘956 patent”), 8,407,546 (“the ‘546 patent”), 8,468,411 (“the ‘411 patent”), 8,595,577 (“the ‘577 patent”), and 8,645,784 (“the ‘784 patent”). A copy of the Memorandum Opinion is attached.... More
- Food Advertising Update/Reminder Although they may not immediately connote a traditional form of advertising, food menus and labels serve as a form of advertising in the minds of many consumers and are regulated by Food & Drug Administration (“FDA”). Read below for two important updates/reminders in the food-related space. Menu Labeling: As a follow up on a prior blog post and as detailed in today’s Consumer Update from the FDA, the FDA is requiring this month that certain types of food establishments post calorie information on menus and... More
- What government contractors need to know about the revised disclosure requirements (and patent filing deadlines) for federally-funded inventions The Bayh-Dole Act and federal regulations implementing the Act permit government contractors to retain ownership of inventions developed with federal government funding. However, to retain ownership the contractor must take certain actions within certain deadlines. If the contractor misses these deadlines, the government agency can take title to the invention. These deadlines are about to become even more important when a regulatory change takes effect on May 14, 2018. Significant deadlines to keep in mind include: 1. Disclose the invention to the... More
- Marketing to Children When marketing products or services to children, companies should be aware of applicable statutes and guidance and should be particularly cautious with their advertising claims. Lanham Act & FTC Act The prohibitions against false, misleading, and deceptive advertising under the Lanham Act and Section 5 of the FTC Act of course apply to advertising claims directed at children. It’s important to remember that the advertisements may be viewed by a court or by the FTC as ordinary children would view them (not as the actual buyers, i.e. parents or... More
- Judge Andrews Grants State of Delaware’s Motion to Remand to State Court Suit It Filed Against Opioid Manufactures, Distributors and Retailers By Memorandum Opinion entered by The Honorable Richard G. Andrews in State of Delaware v. Purdue Pharma L.P. et al., Civil Action No. 18-383-RGA (D.Del. April 25, 2018), the Court granted Plaintiff State of Delaware’s Motion to Remand the action originally filed by Plaintiff in the Superior Court of Delaware against manufacturers, distributors, and pharmacy retailers of prescription opioids for their roles in Delaware’s opioid crisis. In granting the Motion to Remand the action back to Delaware Superior Court, the... More
- FTC Sues Lending Club for Deceptive Advertising The FTC filed a lawsuit this week against Lending Club, a peer-to-peer lending company that operates an online marketplace for personal loans. The lawsuit accuses Lending Club of luring consumers to its website with online advertisements promising “no hidden fees,” only to go ahead and deduct significant “up-front” origination fees from the loan proceeds. As a result, customers were surprised when the amount that actually showed up in their bank account was less than the “Loan Amount” they thought they had... More
- A Monkey Could Do That! Though apparently not when it comes to suing for copyright infringement. Earlier this week, the Ninth Circuit issued a ruling in a case involving photographs taken by a monkey on a camera left unattended by a nature photographer in Indonesia—aptly deemed the “Monkey Selfies.” The copyright infringement case was filed by People for the Ethical Treatment of Animals, Inc. (PETA) as “Next Friends” of the monkey named Naruto against the photographer and entity that published the Monkey Selfies in a book that identified themselves as... More
- The Looming (Brand Enforcement) Blackout There are over 330 million domain names supporting over 1.8 billion websites having a unique hostname on the internet right now. But who owns each of these? There are many reasons one may want to identify the owner or operator of a particular domain or website. In addition to law enforcement and cyber security, owners of IP need to be able to enforce their rights against illegal use of their IP or bad faith domain name registration and use. For example,... More
- In Vanda decision, Federal Circuit finds method of treatment claims eligible for patenting A recent Federal Circuit decision provides patent holders and applicants some guidance as to when patent claims that include methods of treatment may be eligible for patenting. In Vanda Pharmaceuticals Inc. v. West-Ward Pharmaceuticals Int’l Ltd. (Fed. Cir. Apr. 13 2018), the decision involved U.S. Patent 8,586,610, which is directed to a method of trating a patient who is suffering from schizophrenia with iloperidone. The representative claims included the steps of performing a genotypic assay on the patient, and administering one... More
- Judge Sleet Grants Amgen’s Motion to Dismiss Genetech’s Commercial Marketing Claim Without Prejudice By Memorandum Opinion entered by The Honorable Gregory M. Sleet in Genentech, Inc. et al. v. Amgen Inc., Civil Action No. 17-1407-GMS (D.Del. April 17, 2018), the Court granted defendant Amgen’s motion to dismiss the claim of plaintiffs Genetech and City of Hope (collectively “Genetech”) requesting a declaratory judgment that Amgen cannot market Mvasi before December 18, 2018. Mvasi is a biosimilar version of Genetech’s Avastin®. During the “patent dance” prescribed by the Biologics Price Competition and Innovation Act (“BPCIA”), 42... More
- Judge Sleet Issues Markman Order in Infringement Action Construing Three (3) Disputed Terms in Patents-in-Suit By Order entered by The Honorable Gregory M. Sleet in Alarm.com, Inc., et al. v. Securenet Technologies, Civil Action No. 15-807-GMS (D.Del. April 6, 2018), the Court rendered its Markman ruling construing three (3) disputed terms and certain variants of one term in U.S. Patent Nos. 7,885,635 (“the ‘635 patent”), 8,073,931 (“the ‘931 patent”), 8,473,619 (“the ‘619 patent”), and 8,478,844 (“the ‘844 patent”). A copy of the Markman Order is attached.... More
- Judge Andrews Grants Defendants’ Motions to Dismiss After Finding Certain Claims of Patents-in-Suit Are Directed to Patent Ineligible Subject Matter By Memorandum Opinion entered by The Honorable Richard G. Andrews in IPA Technologies, Inc. v. Amazon.com, Inc. et al., Civil Action No. 16-1266-RGA (D.Del. March 31, 2018) (consolidated), the Court granted Defendants’ motions to dismiss as to claim 1 of U.S. Patent No. 6,742,021 (“the ‘021 patent”), claim 1 of U.S. Patent No. 6,523,061 (“the ‘061 patent”), and claim 1 of U.S. Patent No. 6,757,718 (“the ‘718 patent”) after finding that those claims are each drawn to an abstract idea... More
- TMs: Never Too Late to the Party March Madness always brings about trademark enforcement-related news. What we generally don’t see is news about a participating school submitting trademark applications while the basketball tournament takes place. But according to numerous articles last week, including this one in the Baltimore Sun, the University of Maryland Baltimore County hadn’t sought trademark registrations prior to securing the first upset of a #16 seed over a #1 seed two weeks ago. After that historic victory, however, the University asked attorneys to file... More