Supreme Court Again Strikes Down Trademark Restrictions

Yesterday the United States Supreme Court announced its decision in Iancu v. Brunetti, holding that prohibiting trademarks that consist of or comprise immoral or scandalous matter(1) violates the First Amendment. The majority, written by Justice Kagan, centered its finding on the fact that the Act’s “immoral or scandalous” criterion is viewpoint-based which results in viewpoint-discriminatory application. In other words, a Patent and Trademark Office (“PTO”) Examiner must issue registrations from an impartial perspective, not from their own judgment. For example, a PTO trademark examiner would allow marks that support society’s ideas of decency and morality, but reject marks that do not align with those concepts.


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There are many legal considerations that go into negotiating, executing, performing and terminating export distributor agreements. We are excited to partner with U.S. Commercial Service and the Mid-America District Export Council on upcoming seminars in Kansas where Husch Blackwell’s Grant Leach will discuss the following topics:

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According to Lex Machina’s 2018 Trade Secret Litigation Report, the number of trade secret cases pursued in U.S. federal courts has increased rapidly since the 2016 enactment of the Defend Trade Secrets Act (DTSA), which granted federal court subject matter jurisdiction over claims raised under the Act. Last year provided a number of interesting precedential decisions on various topics within the realm of trade secrets law, many of which will no doubt shape litigation tactics (and expectations) going forward. One decision of particular note came from the Federal Circuit Court of Appeals addressed to the issue of whether unjust enrichment claims were entitled to a jury determination.  Although the case did not specifically deal with claims raised under the DTSA, it nonetheless could impact who is entitled to determine certain types of monetary remedies requested in trade secret cases.

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An important aspect of developing any intellectual property strategy and portfolio is deciding which method of intellectual property protection to pursue based on the advantages and disadvantages of each method. Plants may be protected through utility patents, certificates under the Plant Variety Protection Act (“PVPA”), and plant patents. Each of these methods has their own requirements with various levels of stringency for obtaining a utility patent, certificate, or plant patent, as well as different levels of protection, as will be discussed below.

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Every company, but especially startups, looks for a competitive edge to provide an advantage over other companies. Intellectual property (“IP”) rights and the strategy of how to leverage them may separate a startup from other companies.

Because IP can be an essential part of a business and of significant interest to potential investors, startups often enthusiastically disclose their inventions, technology, and other IP when pitching to potential investors or at public events. However, pitching to potential investors or publicly presenting before protecting the IP can have devastating consequences for companies.

We provide below a few of the reasons why companies should consider protecting their IP before disclosing it to the public.


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globe charts graphsCongratulations! You have developed or launched an innovative new product or service, and your business dreams are becoming a reality. It’s all very exciting.  One thing you may not have considered much, however, is whether your innovations or brand are susceptible to infringement in the international context. Will competitors try to make a knock-off product or steal your trade secrets? Are foreign companies going to ship infringing articles to the U.S. market? Protecting your intellectual property (IP) is key. Here are some fundamental suggestions to thwart such threats to your growing business.
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internet websiteAre your online trademark enforcements efforts being thwarted by inaccurate or inaccessible Whois data? If so, make your voices heard!

Problems with the accuracy and completeness of the Whois global database of domain name registrants are probably not a new thing for your company. We have all been there. You obtain the Whois record for an infringing domain name just to find out it is either registered under a privacy/proxy service or contains blatantly false contact information. If it makes you feel any better, know that you are not alone. The Internet Corporation of Assigned Names and Numbers (ICANN) reported that inaccurate Whois complaints accounted for over 60% of informal complaints filed with Registrars between June 2017 and June 2018. If you have experienced the frustration of encountering inaccurate Whois data, be sure to report it to ICANN via its Whois Inaccuracy Complaint Form, which can be found here. All complaints are forwarded to the sponsoring registrar, who must take reasonable steps to investigate and correct the inaccurate data.


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soccer ballWhile all soccer eyes are on Russia, a company in Reno, Nevada has filed two new applications for the trademarks WORLD CUP 2026 – FAN INFO and WORLD CUP 2026 – U.S. TICKETS, just one day after North America was announced as the host of the World Cup in 2026. Also interesting to note is FIFA’s pending application for the mark USA 2026 was filed almost one year before North America was publicly announced as the 2026 host. What does this teach us? A company can gather a lot of competitive intelligence about a competitor or an industry simply by monitoring the trademark records at the U.S. Patent and Trademark Office (USPTO). And the beauty of it all is that searching the records of the USPTO is absolutely free here. One simple search would have told the Nevada company that FIFA already has a registration for the mark WORLD CUP, likely a significant impediment to the registration of these marks.
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courtThis week, the Federal Circuit resolved three issues left in TC Heartland’s wake. TC Heartland held that 28 U.S.C. § 1400(b) uniquely governs venue in patent cases and is not coterminous with the scope of § 1391. The first prong of § 1400(b) creates venue in the judicial district where the defendant resides, which the Supreme Court held to be the state of incorporation for a domestic corporation. But, this begs the question: what about when the state has multiple judicial districts? Also, whose law governs burden under § 1400(b), and where does that burden lie? In the year after TC Heartland, district courts across the country split on these issues.
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