Trademark Protection and the Lawful Use Requirement

by James Kachmar
The IP Law Blog

Trademark law was developed to help protect a seller’s “brand” in connection with the marketing and labeling of products for sale to avoid “consumer confusion.” One rarely litigated aspect of trademark law is that the use of the trademark must be for a lawful purpose. The Ninth Circuit recently tackled this issue in AK Futures LLC v. Boyd Street Distro, LLC (decided May 19, 2022), a case that involved e-cigarette and vaping products derived from cannabis.

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The Continuing Battle Over LinkedIn Profiles and the Applicability of the Computer Fraud and Abuse Act

by James Kachmar
The IP Law Blog

Over two and a half years ago, this column analyzed a Ninth Circuit case titled HiQ Labs, Inc. v. LinkedIn Corporation, in which the Court agreed with a lower court that had issued a preliminary injunction against LinkedIn from taking certain technical measures to prevent HiQ, a data analytics company, from “scraping” information from publicly available profiles on LinkedIn’s site. The Ninth Circuit concluded then that HiQ was not violating the Computer Fraud and Abuse Act (“CFAA”) because its activities were directed at publicly available information and therefore,

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Is that Bird A Cardinal or a Scarlet Tanager? Who Cares. The U.S. Supreme Court Weighs in on Copyright Infringement and the Issue of Mistake

by James Kachmar
The IP Law Blog

This column previously addressed the case of Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., when it was decided by the Ninth Circuit about two years ago. Unicolors is the owner of copyrights in various fabric designs, including a 2011 copyright registration that consisted of 31 separate designs. Unicolors sued H&M for copyright infringement when H&M stores began selling a jacket and skirt that contained artwork that Unicolors claimed to be identical to one of the designs in its 2011 registration.

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Federal OSHA Withdraws COVID-19 Vaccination and Testing Emergency Temporary Standard

by James Kachmar
The Labor & Employment Law Blog

Our Blog has been monitoring the ETS that OSHA issued in November 2021 that mandated employers of 100 or more employees to require their employees to obtain COVID-19 vaccinations or undergo regular COVID-19 testing instead.  We have kept you informed as this ETS made its way through the courts.  First, implementation of the ETS was stayed by the Fifth Circuit Court of Appeals (see blog on 11/18/2021), then the stay was lifted by the Sixth Circuit Court of Appeals (see blog on 12/20/2021),

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Copyright Infringement and Class Certification Issues

by James Kachmar
The IP Law Blog

Greg Kihn is a musician best known for his 1983 hit song, “Jeopardy.” In 2017, he (and his publishing company) filed suit against Bill Graham Archives, LLC, which did business as Wolfgang’s Vault. Wolfgang’s Vault is a website where visitors could, for a fee, access thousands of live musical performances from the 1950s to the 1990s. Mr. Kihn’s complaint alleged violations of federal copyright and anti-bootlegging laws. He sought to bring these claims of a class of other performers similarly situated.

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US Supreme Court Will Hear OSHA Vaccine or Test Mandate Challenge on Expedited Basis

by James Kachmar
The Labor & Employment Law Blog

Earlier this week, Beth West wrote a blog update about the 6th Circuit Court of Appeals vacating the stay of OSHA’s vaccine or test mandate that applies to employers with more than 100 employees (Click here to read). Ms. West noted that the challengers to the mandate would seek immediate review by the U.S. Supreme Court. The Appellants in those cases filed their appeals of the 6th Circuit’s ruling and filed applications to again stay the OSHA vaccine or test mandate.

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Ninth Circuit Refuses to Adopt “Ordinary Observer” Test for Substantial Similarity and Copyright Infringement

by James Kachmar
The IP Law Blog

The Ninth Circuit was recently asked to determine whether to continue to apply the Circuit’s two-part extrinsic/intrinsic test for “substantial similarity” with regard to a copyright infringement claim or to depart from this approach and apply the Second Circuit’s “ordinary observer” test instead. In Johannsongs-Publishing, Ltd. v. Lovland, an unpublished opinion issued on November 29, 2021, the Ninth Circuit declined to depart from its precedence and affirmed summary judgment in favor of defendants who were accused of copyright infringement in connection with the song You Raise Me Up.

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Employers Beware – Confidentiality and Non-Disparagement Provisions Face Further Restrictions

by James Kachmar
The Labor & Employment Law Blog

In 2018, in response to the #MeToo movement, California enacted Senate Bill 820 which added section 1001 to the California Code of Civil Procedure and prohibited employers from including provisions into settlement agreements that prevent the disclosure of factual information relating to claims of sexual assault, sexual harassment, failure to prevent harassment, harassment in a professional relationship, discrimination based on sex, or retaliation that had been made in connection with a civil lawsuit or administrative action. 

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The De Minimis Concept in Copyright Cases – The Ninth Circuit Says What it is and What it Isn’t

by James Kachmar
The IP Law Blog

In a recent case, Bell v. Wilmott Storage Services, LLC, decided September 9, 2021, the Ninth Circuit clarified the role that the de minimis concept plays in copyright infringement cases.  In essence, the Ninth Circuit explained that de minimis goes to the amount of copying of a copyrighted work as opposed to any de minimis use or display of any such a work.

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