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
- Chief Judge Stark Grants Defendant’s Daubert Motion to Exclude Certain Testimony of Plaintiffs’ Trademark Expert for Lack of Reliable Methodology or Principles By Memorandum Order entered by The Honorable Leonard P. Stark in Cirba Inc. d/b/a Densify) et al. v. VMware, Inc., Civil Action No. 19-742-LPS (D.Del. January 7, 2020), the Court granted Defendant VMware’s motion to exclude certain testimony of Plaintiffs’ trademark expert, Vincent Mayfield. While the Court rejected VMware’s argument that Mr. Mayfield’s opinions constitute improper expert testimony, it agreed with VMware that Mr. Mayfield lacked the qualifications to offer his expert opinions. Id. at *4. In so ruling, the Court... More
- Does AI Infringe? Do You? Artificial Intelligence, commonly referred to as AI, is increasingly being used to perform tasks previously only capable of being done by humans. For example, some companies are pioneering automated journalism, allowing smart software to analyze data, match relevant phrases in a story template and put together a narrative that can be published. AI is also being used in songwriting and to create works of art. These advances generate numerous legal questions. Of course, to the extent these works create value,... More
- How long does it take to receive a patent or trademark registration in the U.S.? (2019 update) The USPTO recently released its FY2019 Performance and Accountability Report, with contains helpful information about allowance rates, average pendency, and other statistics about its review of patent and trademark applications this year. Each year, IP Spotlight analyzes this report and, and we update our readers who often ask: how long does it take for a patent or trademark registration to grant? To answer that question: Patents: In 2019 the USPTO continued a eight-year trend of reducing patent application pendency. The average time... More
- HAPPY HOLIDAYS! HAPPY HOLIDAYS FROM YOUR FRIENDS AT FOX ROTHSCHILD LLP!... More
- Trademarks, Copyrights, and Patents Sometimes it’s back to basics. This time, the simple difference between trademarks, copyrights, and patents. The U.S. Patent & Trademark Office (“USPTO”) provides guidance. A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of one party’s goods. A service mark is the same but for services, and can still be referred to as a trademark. Examples can include brand names, company names, logos, tag lines, slogans, and the like. Trademarks do not expire as long as they are... More
- FTC Finalizes Sending Refund Checks to Consumers Allegedly Deceived by Subscription Snack Service The Federal Trade Commission (“FTC”) recently sent out settlement checks to consumers who were allegedly deceived by UrthBox, Inc. (See https://www.ftc.gov/news-events/press-releases/2019/12/ftc-sending-refund-checks-consumers-allegedly-misled-free-trial.) While the settlement, $100,000, and the amount refunded, around $84,000, were not very high, the case is interesting as it reinforces the need for companies who offer online subscription services or that rely on online reviews to ensure they are adequately disclosing what the law requires. UrthBox sells a subscription service in which consumers pay for it to send a... More
- Judge Connolly Denies Orexo’s Motion for a New Trial in Hatch-Waxman Patent Action By Memorandum Opinion entered by The Honorable Colm F. Connolly in Orexo AB et al. v. Actavis Elizabeth LLC et al., Civil Action No. 17-205-CFC (D.Del. December 11, 2019), the Court denied Plaintiffs’ Orexo AB and Orexo US, Inc. (collectively, “Orexo”) motion for a new trial, pursuant to Federal Rule of Civil Procedure 59(a), on the issues of infringement, willfulness and damages. Orexo had alleged that Defendants generic versions of the anti-opioid addiction drugs Suboxone® and Subutex® directly and indirectly... More
- SEC’s Advertising Changes for Investment Advisers Last month, the Securities and Exchange Commission (SEC) issued a press release describing its proposed changes to the Investment Advisers Act of 1940. The Act contains various advertising and cash solicitation rules for investment advisers when soliciting clients and investors, which the SEC is proposing to modernize. According to the SEC, the proposed changes are “intended to update these rules to reflect changes in technology, the expectations of investors seeking advisory services, and the evolution of industry practices.” On the advertising rule side, the... More
- Judge Connolly Grants Defendant’s Motion to Dismiss Eight Counts of Plaintiffs’ Direct Infringement Claims for Failure to Satisfy Iqbal/Twombly Pleading Standard By Memorandum Opinion entered by The Honorable Colm F. Connolly in Boston Scientific Corp. et al. v. Nevro Corp., Civil Action No. 18-0644-CFC (D.Del. November 25, 2019), the Court granted Defendant’s Motion to Dismiss with respect to Plaintiffs’ claims for direct infringement under 35 U.S.C. § 271(a) in Counts I through VII and IX of the Complaint. The Court also granted Defendant’s Motion to Dismiss with respect to the claims for induced and contributory infringement and the claims for enhanced... More
- Reminder Regarding Cannabis Products The federal Food and Drug Administration (FDA) recently issued a consumer update regarding products containing cannabis or cannabis-derived compounds, including cannabidiol (CBD). Although aimed at consumers, the update contains important reminders for businesses marketing or selling these types of products. The FDA’s website also includes lengthy Q&A guidance about its regulation of them. A prior blog post details the Federal Trade Commission’s (FTC) separate efforts to warn companies that advertise their CBD products as having health benefits without proper substantiation. The FDA’s update... More
- Court Denies Defendants’ Motion to Redact Portions of Hearing Transcript By Order entered by The Honorable Jennifer L. Hall in Pacific Biosciences of California, Inc. v. Oxford Nanopore Technologies, Inc. et al., Civil Action No. 17-275-LPS (D.Del., November 4, 2019), the Court denied Defendants’ motion to redact portions of the hearing transcript from a discovery teleconference on August 14, 2019. The Court noted that, “although there is no presumptive right of public access to discovery motions and supporting documents filed with the court, the public does have a right of... More
- FTC Issues “Disclosures 101 for Social Media Influencers” Last week, the Federal Trade Commission (FTC) issued guidance titled “Disclosures 101 for Social Media Influencers.” The guidance consists of a short, easy-to-read document aimed directly at those who work with brands to recommend or endorse products. It is intended to give those influencers tips on when and how to make good disclosures about their relationship with a brand, in particular to disclose when the influencer has a material connection in the form of a personal, family, employment, or financial relationship. However, it also... More
- Judge Connolly Grants Defendant’s Motion to Stay Patent Infringement Action in District of Delaware Pending Resolution of Parallel Action in Florida By Memorandum Order entered by The Honorable Colm F. Connolly in F’Real Foods, LLC v. Welbilt, Inc., Civil Action No. 19-1028-CFC (D.Del., October 31, 2019), the Court granted Defendant’s motion to stay the patent infringement action filed in the District of Delaware until the resolution of the parallel patent infringement filed by Plaintiff against Defendant’s business partner in the Southern District of Florida. Upon evaluation of the pertinent factors, the Court found that a stay of the District of Delaware... More
- Two Better Business Bureau Entities Refer Companies to Federal Trade Commission This month, two self-regulatory bodies that are administered by Better Business Bureau National Programs, Inc. (BBB), referred two different companies to the Federal Trade Commission (FTC) for investigation. First, on October 3, 2019, the Direct Selling Self-Regulatory Council (DSSRC) referred Aloe Veritas, Inc. (a multi-level direct selling company that offers wellness and skincare products) to the FTC. The DSSRC is a new-as-of-2019 national advertising self-regulation program that independently monitors advertising and marketing claims in the direct selling industry. The DSSRC identified... More
- Trick or Treat Happy Halloween! It is the day (or week, for some) of the year where we venture out pretending to be something we are not. Some may choose to go for a classic costume like a ghost or witch. However, others want to dress up as their favorite character from a TV or movie. But these characters are likely subject to copyright and trademark protection. If you buy a costume of your favorite superhero from the store, you likely have an... More