Jack Daniels v. Bad Spaniels: Trademarks Are Not Abstract and Free Speech Doesn’t Mean You Can Say Anything You Want
By David C. Brezina
Intellectual Property,
September 2023
The U.S. Supreme Court was presented with a parody dog toy emulating the Jack Daniels whiskey trademarks and packaging. When presented with the question of whether the First Amendment defense always applied to parody use, the Court decided the case should be narrow: Where the accused use is use in commerce as a trademark—indicating the source of the goods—traditional trademark law applies and it is unnecessary to address application of a rule for artistic use.
Federal Trade Commission Rule to Make Non-Compete Agreements Unfair Trade Practices Comments to Proposed Rule Due March 20, 2023
By David C. Brezina
Intellectual Property,
February 2023
Non-compete agreements have arisen in courts since 1711. On January 5, 2023, the Federal Trade Commission published a Notice of Proposed Rulemaking (NPR) for a rule to ban non-compete clauses. Among other provisions, a company has to identify whether it has a non-compete, and if so, tell the contracting worker that it is no longer in effect. The NPR cites economic literature that banning non-competes enhances competition and lowers prices. Comments to the proposed rule are due March 6, 2023.
Quick Look Intellectual Property Audit
By David C Brezina
Intellectual Property,
September 2022
A guide to reviewing company documentation and procedures, especially where there have been significant management and/or ownership changes. The purpose is not to find errors, but rather to find out what is “there” and what might help develop the business, particularly where a bit of a different direction might be indicated. There can be many valid business reasons for not taking action in the past—most decisions weigh risk and expense—that might provide opportunities for future growth.
Copyright Trolls in the Construction Industry—But Is It Good Law and Bad Facts?
By David C. Brezina
Intellectual Property,
September 2021
In Design Basics LLC v. Signature Construction Inc., Judge Sykes described a problem of copyright trolls. In the copyright context, this was said to be a cottage industry of registering many architectural graphics and then suing for copyright infringement, hoping to collect, at a minimum, statutory damages, and potentially an infringer’s profits. But this label made no difference to the result in the case. Not all copyrighted works have the same enforcement potential. Some works may contain highly original content, while others might only have bare minimum originality— “thin” copyrights.
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