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Intellectual Property Blog

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McBrayer Blogs

Life, Liberty, Happiness, and…Personality? What to Know about Your Publicity Rights

Believe it or not, there are no federal statutes or case laws protecting your exclusive right to the use of your name, image, and likeness (NIL) or any other defining factor of your identity, such as your voice or signature. Rights of publicity vary state by state, and as a result, these rights are complicated and little-understood. Recently, publicity rights (sometimes called “personality rights”) have been in the news—first for college athletes gaining the ability to profit from their NIL through a recent Supreme Court decision, then for the use of AI-generated clips of the voice of the late Anthony Bourdain in the documentary film Roadrunner. These two very different instances illustrate two sides of the multi-faceted issue of rights of publicity. More >

Supreme Court: Bad Intent Not Enough to Violate the Computer Fraud and Abuse Act

In an unlikely 6-3 decision where Justices Barrett, Gorsuch, and Kavanaugh joined the three so-called “liberal justices,” the United States Supreme Court held on June 3, 2021, that a police officer did not violate the Computer Fraud and Abuse Act, 18 U.S.C. §1030(a)(2) (“CFAA”), by accessing a law enforcement database to retrieve information to commit a crime. This case may have far-reaching implications for companies that provide access to trade secrets and confidential information to employees, and it’s probably time for them to review their contracts and policies. More >

Trademark Infringement Case Gets Hotter Than Hell: Lil Nas X, Nike, and “Satan Shoes”

Lil Nas X, Trademark infringement, Satan, Shoes. These may seem like four completely unrelated items chosen entirely for their randomness, and yet all four comprise pop culture’s biggest legal story of 2021 so far. Don’t worry – if you don’t know what I’m talking about, I’ll bring you up to speed, but the short version is that a rapper, a shoe company, and the devil are involved in turning a run-of-the-mill trademark infringement case into headline-making news. The real message is that a company’s brand and trademark are defined by its willingness to aggressively defend them, and the devil isn’t always just in the details. More >

Trademark Registrants, Take Note: COVID-19 Presents Some Challenges for Maintaining Trademark Registrations

As we all know, the varying degrees of lockdown brought about by the COVID-19 pandemic have, for over a year now, interrupted nearly every aspect of personal and professional life. For businesses, mandatory closings and temporary shutdowns can mean a waning customer base and dwindling revenue, but it can also mean something even worse: losing federal rights to a trademark. More >

The “Likelihood of Confusion” Test for Trademarks: What to Know When Creating Your Brand

Posted In Trademark

The purpose of a trademark is to provide your business with a unique identifier on which to build your brand. Trademarks then help you to stand out in the marketplace. It’s only fitting, therefore, that one of the key elements of trademark infringement under the Lanham Act, also known as the Trademark Act, is the likelihood that consumers would be confused by a mark that is similar in some way to the potentially-infringed trademark. More >

McDonald's Learns a Trademark Truism: "Use It or Lose It"

Posted In Trademark

A well-known truism of trademark law is that if the owner of a trademark is not making adequate ongoing use of that trademark, the owner of the mark is at risk of jeopardizing the continued right to enforce the trademark to prevent others from using the same or a similar mark in a related line of business.

Double CheeseburgerApparently the McDonald’s restaurant chain just this week felt the pain of this rule, possibly losing the right to enforce the BIG MAC trademark anywhere throughout the European Union. More >

Court in Copyright Case: Don’t Embed That Tweet!

“When the Copyright Act was amended in 1976, the words “tweet,” “viral,” and “embed” invoked thoughts of a bird, a disease, and a reporter.” So begins the opinion of the United States District Court for the Southern District of New York in the case of Justin Goldman v. Breitbart News Network, et al, and it conveniently illustrates just how difficult it is to adapt copyright law to swiftly-changing technology.  The Goldman case, decided on February 15, 2018, is a prime example of how courts are grappling with this divide. The court scrapped an approach long-held in other courts about how copyright applies to photos shared on the internet in favor of a new rule that arguably provides more protection to copyright holders. More >

Supreme Court Holds under First Amendment that Offensive, Disparaging Words Can Be Granted Trademark Protection

Lately there has been a growing tension between certain trademark applicants and a provision of the 1946 Lanham Act, which governs protection of trademarks. This clause gives the U.S. Patent and Trademark Office ( the “PTO”) the power to deny registration of any “immoral. . . scandalous” trademark, or one that may “disparage . . . or bring . . . into contempt or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). For some time now, this issue has been in the spotlight with a lengthy legal dispute over whether the PTO must cancel the “Washington Redskins” trademarks registered to the National Football League team of that name, because the term “redskins” is disparaging of Native Americans. In the latest ruling, the PTO canceled the Redskins trademark registrations, and that ruling is currently on appeal.  A recent decision by the Supreme Court, however, may change everything. More >

No More Audit Anxiety: Why an Intellectual Property Audit is Nothing to Fear

Your employment attorney has been advising you that you need to audit your independent contractors and overtime-exempt employees to comply with new rules, while your accountant has been working with you to help avoid audits by the IRS. The word “audit” might as well be spelled with four letters. We all know that “audit” is a loaded term, striking fear in the hearts of battle-scarred survivors of audits gone by. There’s one more audit that you probably haven’t heard much about, however, and this one is vital in the ceaseless march to build and protect your brand: The intellectual property audit. More >

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