3M Takes Action to Protect Its Brand from Price Gouging And Trademark Infringement

At the beginning of April, 3M, the nation’s largest producer of the now infamous N95 mask, filed two lawsuits against companies it claimed were confusing and deceiving buyers by falsely associating 3M with the defendants and re-selling its N95 masks at “grossly inflated”[1] prices. Such behavior, according to 3M, violates federal trademark law. The lawsuits, which were filed in the Southern District of New York[2] and the Eastern District of California[3], were some of the first major trademark lawsuits to come out of the COVID-19 pandemic. On the same day, 3M also filed suit against a John Doe in Texas state court. 3M did not stop there. Most recently, on April 30, 2020, 3M filed four additional lawsuits: two in the Middle District of Florida,[4] one in the Northern District of Florida[5], and one in the Southern District of Indiana.[6]  Overall, the complaints in these suits contain claims of federal trademark infringement, unfair competition, false association, false endorsement, false designation of origin, trademark dilution, false advertising, deceptive acts and business practices and other state law claims. Continue Reading

IP Protection and the Open COVID Cure Chase

As the world grapples with its response to COVID-19, the availability and nature of intellectual property protection afforded for diagnostic tests, treatments, vaccines, and accompanying data is likely to have a significant impact on whether and how that information is shared—and therefore necessarily will implicate the response time for containing the virus and resolving the pandemic.  This article explores those available protections, and how they may enhance or impede innovation.  This article also discusses several alternative approaches that could be used during these extraordinary times to incentivize swift collaboration while still protecting the financial interests of the innovators. Continue Reading

U.S. Supreme Court Case Preview—Van Buren v. United States: Does Use of a Computer for an “Improper Purpose” Violate the Computer Fraud and Abuse Act?

For the first time, the Supreme Court has agreed to review the Computer Fraud and Abuse Act (CFAA). The Court’s initial review of the CFAA comes in the wake of a federal circuit split as to whether the statute can only be deployed against hackers and unauthorized users of electronic systems, or also against authorized users who use the information for unauthorized purposes. The Court’s decision may significantly affect not only how law enforcement uses the CFAA, but also whether civil litigants, such as employers, may use the CFAA to defend against unauthorized employee activities. Continue Reading

6 Steps to Protect Your Trade Secrets During Covid-19 Layoffs

Although employers may not think that the COVID-19 pandemic is threatening their trade secrets, it is.  The massive layoffs resulting from the COVID-19 pandemic[1] place employer trade secrets at risk.  Here, we offer 6 steps employers can consider to protect their trade secrets in these extraordinary times. Continue Reading

U.S. Supreme Court Rules that Profits Available Even from Non-Willful Trademark Infringers

The U.S. Supreme Court unanimously held today (April 23, 2020) that a brand owner is not required to prove a defendant’s trademark infringement was willful as a precondition to an award of the defendant’s profits. The Court’s decision – Romag Fasteners, Inc. v. Fossil Group, Inc.[1] – vacated the decision of the Federal Circuit, which held that, under Second Circuit law, an award of profits could not be sustained for Romag’s failure to establish Fossil’s infringement was willful.[2]  The Court’s decision resolves a Circuit split regarding the interpretation of Section 1117(a) of the Lanham Act, which states in pertinent part: Continue Reading

Defending Against Nonperformance Of Life Science Contracts

Many life sciences contracts, including intellectual property licensing agreements, development agreements and supply agreements, contain force majeure clauses.  Depending upon the language of these clauses, the COVID-19 pandemic may be an event that triggers these clauses and provides a defense to nonperformance of the contract.  Companies that are experiencing difficulties complying with or enforcing compliance with their contracts should carefully examine their contracts to determine if a force majeure clause may excuse performance. Continue Reading

The Federal Circuit Reconsiders the Inherent Distinctiveness of Color Marks in In re Forney

On April 8, 2020, in In re: Forney Industries, Inc.,[1] the Federal Circuit reversed the Trademark Trial and Appeal Board’s finding that a color mark can never be inherently distinctive.  By so holding, the Federal Circuit controverts what had become conventional wisdom since the Supreme Court’s decisions in Qualitex Co. v. Jacobson Prod. Co., 514 U.S. 159 (1995) and Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205 (2000). Continue Reading

Open COVID Pledge Seeks to Make IP Available for Use in Ending COVID-19

The Open COVID Coalition, comprising an international group of scientists and attorneys, has published the Open COVID Pledge, which calls upon organizations worldwide to make their patents and copyrights freely available to fight against the COVID-19 pandemic.  The steering committee of the Open COVID Coalition includes such legal luminaries as Mark Lemley of Stanford Law School and Diane Peters of Creative Commons. Continue Reading

Delaware 101 Pleading Analysis Leaves Parties Guessing and Prosecutors Moving to Adapt

Over the past few years, it has been common to see inconsistent approaches and analysis for 35 U.S.C. § 101 challenges, particularly those at the pleading stage.  Aatrix, Berkheimer, and subsequent decisions appear to have only led to more inconsistent approaches among district court judges, revealing the glaring flaws of 101 analysis, particularly without more Federal Circuit or Supreme Court guidance.

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4 Steps to More Effectively Use NDAs to Protect Confidential Information

Companies routinely use Non-Disclosure Agreements (NDAs) to protect confidential information shared with potential acquirers, consultants, and other third parties.  But companies cannot merely rely on stock NDAs to protect that information.  They should understand each NDA’s procedures for designating information as “Confidential” (and ensure compliance with them), and grasp the interplay between NDAs and state trade secret laws in terms of imputing duties of confidentiality. Continue Reading

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