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October / November 2023 IP Newsletter

SCOTUS rejects fair use defense in Warhol copyright case
The U.S. Supreme Court has issued its much-anticipated ruling in a case that drew attention partly because it involved two widely renowned artists: the musician Prince and the visual artist Andy Warhol. More importantly, though, the high court weighed in on some of the limits of the fair use defense to copyright infringement. This article covers the fair use doctrine and its application in the case, notably that the original photo and the copying use shared substantially the same purpose. A short sidebar discusses other Warhol works that make an artistic commentary on consumerism, and thus had a different purpose from the original image.
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 21-869 (U.S. May 18, 2023).

Supreme Court finds trademark owners can’t sue for foreign infringement
The U.S. Supreme Court has limited the reach of the Lanham Act, the federal trademark law, beyond American borders. The Court’s ruling in Abitron Austria GmbH v. Hetronic Int’l, Inc. could make trademark owners more vulnerable to global piracy of their goods. This article reviews the Court’s finding, the result being that U.S. trademark owners may be inadequately protected in a global marketplace.
Abitron Austria GmbH v. Hetronic Int’l, Inc., No. 21-1043 (U.S. June 29, 2023).

Barking up the wrong tree: Supreme Court limits trademark parodies
In a unanimous decision, the U.S. Supreme Court has for the first time considered the so-called Rogers test regarding the use of trademarks in “expressive works” — in this case, a dog toy mocking a famous whiskey brand. This article explains how the Court’s ruling in Jack Daniel’s Properties, Inc. v. VIP Products LLC, makes clear that liability for both trademark infringement and trademark dilution is heavily dependent on just how a defendant uses another’s mark.
Jack Daniel’s Properties, Inc. v. VIP Products LLC, No. 22-148 (U.S. June 8, 2023).

Too many cooks in the kitchen: Who’s an inventor?
Identifying an inventor on a patent application can be a complex analysis. This short article highlights a recent ruling from the U.S. Court of Appeals for the Federal Circuit that sheds light on the degree of contribution required to qualify as an inventor.
HIP, Inc. v. Hormel Foods Corp., No. 22-1696 (Fed. Cir. May 2, 2023).

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