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IP Newsletter - Year End 2018

December 1, 2018

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Federal Circuit revives soda trademark battle over “ZERO”
When most people hear the word “generic,” it brings to mind a consumer product without a brand name. But its meaning is much more significant in the trademark world, where a term deemed generic isn’t eligible for trademark protection. This article summarizes a recent opinion by the U.S. Court of Appeals for the Federal Circuit that clarified the test for so-called genericness. A brief sidebar discusses when and how a descriptive mark may acquire distinctiveness.
Royal Crown Co., Inc. v. The Coca-Cola Co., No. 16-2375, June 20, 2018, Fed. Cir.

Supreme Court allows patent owner to recover lost foreign profits
A new U.S. Supreme Court ruling brings welcome news to patent holders who have found their inventions infringed overseas. The Court held that plaintiffs can recover lost foreign profits generated by the unlawful shipping of U.S. parts abroad for assembly into an infringing product. This article reviews the extraterritorial application of federal laws as applied in this case.
WesternGeco LLC v. ION Geophysical Corp., No. 16-1011, June 22, 2018, U.S.

Shot down
Photogs lose DMCA case over metadata removal
More than two decades after its enactment, portions of the Digital Millennium Copyright Act (DMCA) continue to confound both copyright holders and accused infringers. What, for example, must a copyright holder establish to win a lawsuit over removal of copyright management information (CMI)? This article looks at a U.S. Court of Appeals for the Ninth Circuit decision that provided some clarity on the issue in a case involving digital photographs.
Stevens v. CoreLogic, Inc., No. 16-56089, June 20, 2018, 9th Cir.

Phonetic alphabet fails patent-eligibility test
Despite what movies and television shows might suggest, not every great idea is worthy of — or, more importantly, eligible for — a patent. The inventor of a new phonetic alphabet learned this lesson the hard way. This article discusses a case in which the court found the phonetic alphabet was a patent-ineligible abstract idea.
In re Wang, No. 17-1827, June 20, 2018, Fed. Cir.

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