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
- Coachella vs. Filmchella The Coachella/Filmchella trademark infringement case continues to heat up. Last month, my colleague Megan Center wrote a blog post about the preliminary injunction granted by the Central District of California to the organizers of the Coachella music festival related to another party’s use of Filmchella to refer to a film festival. Interestingly, the plaintiff attempted to seek expedited proceedings but the Filmchella festival had already occurred by the time of the court’s order. Subsequently, the parties have filed a flurry of motions. The plaintiffs... More
- Pet Product Advertising & Labeling Pet products are subject to advertising, labeling, and safety-related laws and regulations just like any human product. For an update on the Food & Drug Administration’s guidance on the compounding of animal drugs from bulk drug substances and the labeling of pet medications, see Nancy Halpern’s recent blog post on Fox Rothschild’s Animal Law blog. For more information on the FDA’s regulation of pet and veterinary products, see the FDA’s website.... More
- New USPTO fee schedule increases fees for challenging granted patents, adds streamlined reexamination option The USPTO recently published an adjusted fee schedule for certain patent fees. The new schedule significantly increases the fees for challenging the validity of a patent in inter partes review (IPR), post-grant review (PGR) and covered business method (CBM) proceedings. (A comparison of these three types of proceedings is available from the USPTO at this link.) The new fees for an IPR proceeding (request fee + post-institution fee) total $30,500 — an increase of $7,500. Additional fees apply if the IPR proceeding... More
- Chief Judge Stark Overrules Parties’ Objections and Adopts Magistrate Judge Fallon’s Recommended Constructions of Two Disputed Terms in Patents-in-Suit By Memorandum Order entered by The Honorable Leonard P. Stark in Alcon Research, Ltd. v. Watson Laboratories, Inc., Civil Action No. 16-129-LPS-SRF (D.Del. November 9, 2017), the Court overruled the objections of plaintiff and defendant and adopted the recommended constructions of two disputed terms in U.S. Patent Nos. 7,947,295 (“the ‘295 patent”) and 8,921,337 (“the ‘337 patent”). A copy of the Memorandum Order is attached.... More
- Chief Judge Stark Issues Markman Opinion in Infringement Action Construing Twelve (12) Disputed Terms in Patents-in-Suit By Order entered by The Honorable Leonard P. Stark in Plastic Omnium Advanced Innovation and Research v. Donghee America, Inc. et al., Civil Action No. 16-187-LPS (D.Del. November 6, 2017), the Court rendered its Markman ruling construing twelve (12) disputed terms in U.S. Patent Nos. 6,814,921 (“the ‘921 patent”), 6,866,812 (“the ‘812 patent”), 7,166,253 (“the ‘253 patent”), 8,163,228 (“the ‘228 patent”), 9,079,490 (“the ‘490 patent”), 9,399,326 (“the ‘326 patent”), and 9,399,327 (“the ‘327 patent”) . The asserted patents generally relate... More
- Will SCOTUS Resolve the Copyright Registration Debate? Last month, a journalism collective called the Fourth Estate Public Benefit Corp. (“Fourth Estate”) petitioned the United States Supreme Court to review a decision issued by the Eleventh Circuit involving the question of when a copyright holder can properly file a copyright infringement lawsuit. At issue is 17 U.S.C. § 411(a), which states that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made... More
- “I Can” and “I Will” File a Lawsuit Earlier this week, Under Armour filed a declaratory judgment action in Maryland federal court against Battle Fashions Inc. and Kelsey Battle seeking an order that Under Armour is not infringing any of Battle Fashion’s trademark rights. In its complaint, Under Armour describes multiple communications the defendants sent to Under Armour demanding that it cease and desist all uses of the phrases “I Can Do All Things” and “I Can. I Will.” as infringing upon the defendants’ “ICAN” trademark, or otherwise be subject to legal... More
- Love Is Not An Ingredient Last month, the Food & Drug Administration (“FDA”) sent a lengthy warning letter to Nashoba Brook Bakery, a bakery based in Massachusetts, identifying a number of alleged violations of food regulations and labeling regulations. One such allegation was that the bakery’s Nashoba Granola product improperly listed “love” as an ingredient on its label. Specifically, the FDA alleged, “Your Nashoba Granola label lists ingredient ‘Love’. Ingredients required to be declared on the label or labeling of food must be listed by their common... More
- One step forward, two steps back for software patents at the Federal Circuit In the past year, several Federal Circuit decisions defined situations in which software inventions could be eligible for patenting in the United States. However, two recent Federal Circuit decisions show that the path for patent-eligibility is not yet clear, especially for patents that claim methods of processing or presenting data. In Secured Mail Solutions LLC v. Universal Wilde, Inc. (Fed. Cir. Oct. 16, 2017), the court considered seven patents covering the use of intelligent mail barcodes, QR codes, and personalized URLs... More
- Judge Sleet Issues Markman Order in Infringement Action Construing Four (4) Disputed Terms in Patent-in-Suit By Order entered by The Honorable Gregory M. Sleet in IYM Technologies LLC v. Advanced Micro Devices, Inc., Civil Action No. 16-649-GMS (D.Del. October 27, 2017), the Court rendered its Markman ruling construing four (4) disputed terms in U.S. Patent No. 7,448,012 (“the ‘012 patent”). The ‘012 patent relates to methods and system for improving integrated circuit layout. A copy of the Markman Order is attached.... More
- Chief Judge Stark Denies Prevailing Party’s Motion for Attorneys’ Fees and Expenses in ANDA Action By Memorandum Order entered by The Honorable Leonard P. Stark in Reckitt Benckiser LLC v. Aurobindo Pharma Limited et al., Civil Action No. 14-1203-LP (D.Del. October 16, 2017), the Court denied Defendants motion for attorneys’ fees and expenses under 35 U.S.C. § 285. 35 U.S.C. § 285 provides that, in “exceptional” patent cases, a Court may award “reasonable attorney fees” to the “prevailing party.” “An exceptional case under § 285 is ‘simply one that stands out from others with respect... More
- Court Has Zero Chill for Use of “Chell” The attendance of a multi-day concert/festival in the desert seems to be a right of passage for millennials with events popping up all over the country. However, are you permitted to utilize the goodwill associated with those events to create your own event? The U.S. District Court for the Central District of California (Court) held that a company could not do so in granting a preliminary injunction in Coachella Music Festival, LLC and Goldenvoice, LLC v. Robert Trevor Simms. Robert Trevor... More
- FTC’s Prohibition on Illegal Sales Calls and Robocalls The Federal Trade Commission (“FTC”) operates a single National Do Not Call Registry at donotcall.gov for both personal land lines and cell phones. Although the FTC notes that the Federal Communications Commission (“FCC”) regulations prohibit telemarketers from utilizing automated dialers to call cell phone numbers without a consumer’s prior consent, the FTC allows consumers to “register” cell phone numbers (in addition to land line numbers) on the Registry in order to notify telemarketers that they don’t want to receive unsolicited telemarketing calls. Once a consumer registers... More
- Regulation of Dietary Supplements The U.S. Food and Drug Administration (“FDA”) regulates dietary supplements as food, not as drugs. In general, dietary supplements are taken orally and contain a dietary ingredient such as a vitamin, mineral, amino acid, herb, botanical, or other substance used to supplement the diet. The FDA warns consumers that dietary supplements may be harmful, may contain hidden or deceptively-labeled ingredients, and are not intended to treat, diagnose, cure, or alleviate the effects of any disease. In fact, the FDA has recalled numerous products containing potentially... More
- Judge Andrews Finds Plaintiff Proved Infringement of Asserted Claims of Patents-in-Suit Following Three-Day Bench Trial in Hatch-Waxman Action Following a three-day bench trial in the matter on June 5-7, 2017 and after having considered the entire record in the case and the applicable law, the Court, through Trial Opinion, entered by The Honorable Richard G. Andrews in Orexigen Therapeutics, Inc. v. Actavis Laboratories FL, Inc., Civil Action No. 15-451-RGA (D.Del. October 13, 2017), found that (1) Defendant failed to prove by clear and convincing evidence that claims 26 and 31 U.S. Patent No. 7,462,626 (“the ‘626 patent”), claim... More