The ™️ and ©️ symbols are more than just formalities – used correctly, they can be a competitive edge for your brand! Learn how to build business success and brand equity with Irwin IP attorneys Jason Keener and Suet Lee….
Publications
Irwin IP Publications is the go-to resource for the latest updates and insights in the world of intellectual property. Over 250 articles are published on cases addressing unique issues, all of which can be found using the search tool below. Additionally, there is a collection of articles/papers and presentations that cover a wide range of topics. Whether you’re a legal professional, business owner, or simply someone passionate about IP, our publications page will provide you with all the knowledge needed to navigate this dynamic field.
On April 29, 2025, the Federal Circuit adopted a test from the Trademark Trial and Appeal Board (“TTAB”) for determining whether a color mark is generic. Under the test, the Federal Circuit affirmed that a color mark for medical examination gloves did not function as a source indicator, lacked…
The Digital Replica Accountability and Identity Protection Act Preamble Purpose: To protect individuals against the unauthorized creation and distribution of realistic digital deepfakes – computer-generated replicas of a person’s name, image, voice, or likeness – while safeguarding free expression, artistic creativity, and technological innovation. This Act establishes clear personal…
The estoppel provision of the American Invents Act (AIA) (35 U.S.C. § 315(e)(2)) prevents a petitioner in an inter parties review (IPR) proceeding from later raising before the Patent Office, a district court, or the International Trade Commission any invalidity “ground that the petitioner raised or reasonably could have raised”…
Be careful when selecting a name for your product, otherwise you might find yourself cooked at the United States Patent and Trademark Office (“PTO”)! Enlisting an expert trademark attorney to oversee your trademark application, especially when there is a similar mark in a related field that is already registered,…
In McGucken v. Valnet, the Supreme Court is being asked to reevaluate a controversial copyright rule known as the “Server Test,” which determines liability based on how an image is displayed online—not whether it actually appears on your screen. Dr. Elliot McGucken claims that embedding his Instagram photos without…
The Federal Circuit recently opined on whether a stipulation in litigation can overcome a disclaimer made during the prosecution history of a patent. The Hatch-Waxman Act allows generic drug companies to use clinical results from brand-name drugs in the FDA approval process. In exchange, the brand-name drug companies get…
After Novartis’ patent on the blockbuster blood pressure medication Entresto was found invalid at the district court for covering technology that was developed after the patent was filed, the Federal Circuit reversed that decision. The Federal Circuit explained that while the later-arising technology fell within the claims of the…
The Hatch-Waxman Act seeks to strike a balance in the pharmaceutical industry by incentivizing drugs makers to develop innovative drugs with additional patent protections while also providing shortened regulatory review procedures for generic drug manufacturers to rapidly get generic versions of the patented name-brand drugs to market after the…
On February 6, 2025, the Second Circuit held that the “articulation requirement” for a trade dress complaint—a pleading requirement under which plaintiffs must articulate with precision the components making up their claimed trade dress—is independent of and must be satisfied prior to evaluating the elements of trade dress infringement…
On February 26, 2025, the United States Supreme Court unanimously overturned a $43 million damages award arising out of a trademark infringement lawsuit. The Court held that when awarding the “defendant’s profits” to the plaintiff under 15 U.S.C. § 1117(a) of the Lanham Act, the plaintiffs are entitled only…
On March 5, 2025, the Federal Circuit vacated the International Trade Commission (“ITC”)’s decision and exercised its “independent judgment” based on the Supreme Court’s Loper Bright decision, which overturned Chevron, to evaluate the ITC’s long-standing practice of narrowly interpreting the domestic industry requirement of Section 337 of the Tariff…
On January 29, 2025, the Southern District of New York dismissed a lawsuit filed against Spotify for allegedly failing to pay the appropriate royalties to songwriters. The Mechanical Licensing Collective (“MLC”), which collects royalties from digital streaming platforms on behalf of composition rightsholders, brought this suit after Spotify unexpectedly…
On January 24, 2025, the Federal Circuit considered the “long mentioned but rarely applied” reverse doctrine of equivalents (“RDOE”) defense. The widely accepted doctrine of equivalents (“DOE”) allows plaintiffs to establish infringement when an accused element “matches the function, way, and result of the claimed element,” even if it…
The Federal Circuit recently addressed a deceptively straightforward question: does a published U.S. patent application qualify as prior art as of the application’s filing date in inter partes review (“IPR”) proceedings? Lynk appealed the PTAB’s reliance as a prior art printed publication on a patent application filed before but…
In 2024, the patent law landscape underwent significant changes driven by landmark court decisions and the advent of emerging technologies. Major rulings from the Supreme Court, the Federal Circuit, District Courts, and the Patent and Trademark Office redefined existing patent frameworks, including a complete rewrite of the long-standing obviousness…
In trademark disputes, the likelihood of confusion analysis—guided by the DuPont factors—is a balancing test with the fame of a mark often tipping the scales. The Federal Circuit highlighted this issue in its critique of the Trademark Trial and Appeal Board’s analysis of the “Cognac” certification mark. In Bureau…
Colors are generally permitted as source identifiers for trademarks or trade dress because they are typically perceived as an ornamental feature of a good or service (e.g. Louboutin’s red soles, T-Mobile magenta, Tiffany blue). However, this week, the Federal Circuit affirmed the Trademark Trial and Appeal Board (“TTAB”) decision…
It’s December, and everywhere you go, the streets and stores are awash in seasonal décor, and holiday products and Christmas programming are glistening in your eyes once again. In the spirit of the season, we have compiled “five golden [th]ings” to know about the intersection of Christmas and protecting…
On December 3, 2024, USPTO Director Kathi Vidal, for a second time, granted Director Review of the Patent Trial and Appeal Board (“Board”)’s denials of institution of inter partes review (“IPR”) in three proceedings. And, for a second time, Director Vidal vacated those denials and remanded the case to…