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June / July 2021 IP Newsletter

June 1, 2021

Oh, the places you won’t go
Fair use defense fails for mashup 
The fair use defense to copyright infringement traces its roots back to an 1841 case involving the use of George Washington’s writings for a biography. To say things have become more complicated is an understatement, as demonstrated by a recent fair use case that considered a “mashup” combining elements of Dr. Seuss with elements of the TV show “Star Trek.” This article reviews the case and the fair use defense, while a short sidebar reveals why the plaintiff lost its trademark claim.
Dr. Seuss Enterprises, L.P. v. ComicMix LLC, No. 19-55348 (9th Cir. Dec. 18, 2020).

Take two
Court revives trademark infringement claim
Using the exact words of a competitor’s trademark in a mark would pretty clearly constitute infringement, but a trial court evaluating such a situation disagreed. However, on review of what it described as a “somewhat unusual” trademark case, the U.S. Court of Appeals for the Second Circuit didn’t concur, based on several factors. This article reviews the court’s discussion of the likelihood of confusion test as it applied to the facts.
Car-Freshner Corp. v. American Covers, LLC, No. 19-2750 (2d Cir. Nov. 19, 2020).

Federal Circuit diverges from PTAB on analogous art ruling
As patent owners are well aware, sometimes overcoming invalidating prior art can be difficult. Prior art — which makes an invention known and/or obvious, and therefore unpatentable — includes existing patents that are “analogous art.” But what makes an existing patent analogous? This article reviews a case from the U.S. Court of Appeals for the Federal Circuit, which handles all patent-related appeals, that explains the concept of analogous art.
Donner Technology, LLC v. Pro Stage Gear, LLC, No. 20-1104 (Fed. Cir. Nov. 9, 2020).

Language matters: Grammar guides court’s patent interpretation
Grammar nerds can delight in a new ruling from the U.S. Court of Appeals for the Federal Circuit, which hears all appeals involving patent litigation. Asked to interpret the meaning of the phrase “a plurality of” when it precedes a list of components in a patent, the court relied in part on a source likely to be found on the bookshelf of every English major at some point. This short article covers the court’s finding of noninfringement based on the meaning of the phrase “a plurality of.”
SIMO Holdings Inc. v. Hong Kong uCloudlink Network Technology Ltd., No. 2019-2411 (Fed. Cir. Jan. 5, 2021).

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