Above the Fold Intellectual Property Blog


Melissa is a regular contributor to Above the Fold, a blog that focuses on trends and developments in the law of advertising, trademarks and copyrights.  Authored by attorneys in Fox Rothschild’s Litigation and Intellectual Property practice groups, the blog offers insights and analysis on the latest court rulings in advertising disputes as well as actions taken by the Federal Trade Commission, the U.S. Patent and Trademark Office, the Trademark Trial and Appeal Board and the Better Business Bureau’s National Advertising Division.

Recent Blog Posts

  • The TTAB Affirms Refusal of Another CBD Mark on “Lawful Use” Grounds On September 25, 2020, the TTAB issued a non-precedential decision summarily rejecting an applicant’s attack against an examining attorney’s refusal to register the mark NATURAL LEAF CBD LIVE BETTER NATURALLY & Design for use on and in connection with dietary and nutritional supplements infused with CBD hemp oil extracts. The examining attorney had refused registration of the mark in view of the USPTO’s “Legal Use” requirement. CBD is an abbreviation for “cannabidiol”—a chemical component of the cannabis plant that is regulated... More
  • Trademark Owners Are Targets In Email Scams Mimicking USPTO For years, scam artists have targeted trademark owners with communications that mimic notices from the United States Patent and Trademark Office (USPTO) or other governmental entities. Unfortunately, there is no end in sight for these fraudulent activities. The USPTO recently reported an uptick in these schemes, as well as a proliferation of new “tools” used to carry them out. Trademark owners should keep abreast of these ever-evolving schemes and pay particular attention to any communications they receive from any party (other than their attorney of... More
  • The TTAB Revisits the Doctrine of Foreign Equivalents In the recent decision In re Hop Daddy LLC (Serial No. 88175921), the TTAB reexamined the contours of the doctrine of foreign equivalents. The USPTO refused Hop Daddy’s application to register the mark SALTY BULL BREWING & Design (with “BREWING” disclaimed) for “Restaurant and bar services; Taproom services; Taproom services featuring beer brewed on premises,” based on a perceived likelihood of confusion with U.S. Trademark Registration No. 5150833 (the “‘833 Registration”) for the plain work mark TORO SALAO. The ‘833 Registration... More
  • Federal Circuit: TTAB’s Decision to Enter Judgment as a Discovery Sanction was Appropriate On August 5, 2020, the United States Court of Appeals for the Federal Circuit affirmed the TTAB’s decision to cancel a trademark registration for the mark HOLLYWOOD BEER as a discovery sanction for the registrant’s repeated, frivolous filings and failure to comply with discovery orders. In August 2015, Hollywood Vodka, LLC (“HVL”) filed a petition to cancel Kris Kaszuba’s registration for the mark HOLLYWOOD BEER. Following a lengthy and somewhat tortured pleading stage, the parties moved on to discovery. Due to... More
  • The TTAB: Rule 56(d) Protects Non-Movants from Being “Railroaded” by Premature Summary Judgment Motions On July 28, 2020, the TTAB issued a precedential decision regarding an underutilized method for responding to summary judgment motions filed before the non-moving party has had a reasonable opportunity to obtain relevant discovery. In Anand K. Chavakula v. Praise Broadcasting AKA Praise FM (Cancellation No. 92071482), Chavakula filed a petition to cancel Praise FM’s registration for the mark PRAISELIVE & Design based on an alleged likelihood of confusion with Chavakula’s purportedly earlier, unregistered PRAISELIVE mark. Despite having repeatedly failed to respond... More
  • The TTAB Finds the Mark GUARANTEED RATE Too Descriptive for Registration in the Absence of Survey Evidence On July 30, 2020, the U.S. Trademark Trial and Appeal Board (TTAB) issued a precedential decision holding, in effect, that the mark GUARANTEED RATE is too common for registration in the absence of a consumer survey showing acquired distinctiveness. Applicant, Guaranteed Rate Inc., sought registration on the USPTO’s Principal Register of the plain word mark GUARANTEED RATE and a GUARANTEED RATE design mark for use with various mortgage financing and banking services. The examining attorney refused registration of the applied-for marks... More
  • 5Pointz Graffiti Art Case Affords SCOTUS the Opportunity to Interpret Rarely Tested Copyright Law On Monday, G&M Realty, a real estate development company, asked the U.S. Supreme Court to reverse a $6.75 million damages award that the U.S. District Court for the Eastern District of New York entered in favor of a group of graffiti artists after G&M Realty, without warning, whitewashed the artists’ work, which had been displayed on a collection of dilapidated warehouses in New York City known as “5Pointz.” The ongoing dispute between G&M Realty and the graffiti artists goes back several... More
  • The Fourth Circuit Issues Litigants A Strong Reminder Of The Risks Associated With Failing To Preserve Evidence On July 16, 2020, the U.S. Court of Appeals for the Fourth Circuit issued a decision highlighting the critical need for litigants to preserve evidence once notified of a potential lawsuit, and the serious ramifications associated with failing to do so.  See QueTel Corp. v. Hisham Abbas, et al., No. 18-2334 (4th Cir. July 16, 2020). In QueTel Corp. v. Hisham Abbas, et al., a software copyright infringement and trade secret case, QueTel alleged that an ex-employee had misappropriated software code... More