April / May 2023 IP Newsletter
When similar trademarks don’t create likelihood of confusion
The Trademark Trial and Appeal Board (TTAB) recently snuffed out opposition to a trademark registration for the mark “SMOKES.” To the surprise of some, it determined that consumers were unlikely to confuse it with the existing mark “SMOK.” This article reviews how the board distinguished between the two seemingly similar marks in Shenzhen IVPS Technology Co. Ltd. v. Fancy Pants Products, LLC. A brief sidebar highlights the TTAB’s finding that Shenzhen didn’t establish a family of marks.
Shenzhen IVPS Technology Co. Ltd. v. Fancy Pants Products, LLC, Opp. No. 91263919 (TTAB Oct. 31, 2022).
TKO: Standing argument in copyright case falls
A copyright owner can’t give someone an exclusive enforceable right in a live event after the event has already occurred, right? That’s what the defendants in Joe Hand Promotions, Inc. v. Griffith recently contended. But their argument fell short in light of some special circumstances. This article reviews the court’s finding that copyright law allows an owner to sue for infringement of an unregistered copyright as long as it registers the copyright within three months of the broadcast.
Joe Hand Promotions, Inc. v. Griffith, No. 21-6088 (6th Cir. Sept. 21, 2022).
Challenger, beware, PTO director sanctions abuse of IPR process
Well-known technology giant Intel has been at war with a patent holding company for years. Recently, a new company inserted itself into the proceedings, apparently hoping to cash in. In an unusual move, the director of the U.S. Patent and Trademark Office (PTO) got involved in the case, OpenSky Industries, LLC v. VLSI Technology LLC. This article highlights how things went downhill for the newcomer from there.
OpenSky Industries, LLC v. VLSI Technology LLC, IPR No. 2021-01064 (PTO Dir. Oct. 4, 2022).
Federal Circuit finds genus didn’t anticipate species
Does the disclosure of a chemical genus render all of the species within it “inherently obvious” and therefore unpatentable? Not always, as the challenger in Mylan Pharmaceuticals Inc. v. Merck Sharp & Dohme Corp. learned. This article discusses the court’s finding that the class at issue didn’t meet the “at once envisage” standard for an invention to be inherently anticipated.
Mylan Pharmaceuticals Inc. v. Merck Sharp & Dohme Corp., No. 21-2121 (Fed. Cir. Sept. 29, 2022).