December 2022

Trademark Trial & Appeal Board Says Mariah Carey Can’t Be the Only ‘Queen of Christmas’

Takeaway: Some trademarks are worth opposing for a greater purpose – holiday spirit!

While Mariah Carey and her hit song “All I Want For Christmas” are virtually synonymous with the holiday spirit, her petition to trademark her Christmas royal title was not approved.

Last year, Carey filed a trademark for the title “Queen of Christmas,” as well as other holiday terms “Princess Christmas” and “QOC.” Her company, Lotion LLC, wanted to use that branding for several classes of goods, including fragrances, makeup, clothing, jewelry and dog accessories.

Elizabeth Chan, who describes herself as “music’s only full-time Christmas singer-songwriter,” took issue with the filing and filed an opposition to her registration with the Trademark Trial & Appeal Board (TTAB). Chan took action because she felt strongly that no one should monopolize the title. In 2021, Chan released an album called “Queen of Christmas” and has had several top 10 Christmas-related singles on the Adult Contemporary charts.

Carey never responded to the opposition, and eventually the TTAB made a “judgment by default,” rejecting Carey’s trademark request.

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New York Judge Asks Jury to Define ‘Beer’ in Corona Licensing and Trademark Agreement Case

Takeaway: When drafting licensing and trademark agreements, use clear and specific language to avoid future confusion.

Last year, Modelo filed suit against Constellation Brands, the U.S. distributor of the Mexican brewer’s popular Corona beer, stating their “Corona Hard Seltzer” breached a licensing agreement and infringed trademarks. Modelo claims their agreement only allowed Constellation to sell “beer” under the Corona name. Constellation disagrees, saying the definition of “beer” in the agreement also covered hard seltzer.

Judge Lewis Kaplan of the southern district of New York was considering the request from Modelo to hold Constellation liable for breaching the contract, but Kaplan ruled that Modelo was not entitled to an immediate pre-trial win. The judge is now setting up a jury trial, specifically on defining the word “beer” in their trademark licensing agreement.

Kaplan said the definition of “beer” in the agreement was too ambiguous to determine before trial, but Modelo’s argument might be stronger.

Photo Credit: thedrinksbusiness .com/2022/12/the-term-beer-to-be-defined-in-corona-hard-seltzer-case/


Donald Trump at Risk of Copyright Infringement Over Digital Trading Cards

Takeaway: Never use images without receiving permission. Contact an attorney if you are unsure whether or not you are at risk of infringing or being infringed.

Former President Donald Trump recently launched a series of digital trading cards. These non-fungible tokens (NFTs) feature Trump as different characters, including a superhero, a cowboy, and an astronaut. According to his promotional site, he sold 45,000 images at $99 each. Unfortunately, questions and suspicions are now arising, as many are accusing Trump of copyright infringement.

Many Twitter users have pointed out that some of the images look familiar, with Trump’s head being edited onto existing stock images, images found on websites of small apparel businesses and other online sites. More specifically, one image featured Trump playing golf, but the NFT looked like a photoshopped image of a Reuters file from 2011 when Trump was playing at his Scotland club.

It is unknown if Trump requested permission for these images or if he will face legal action for copyright infringement over the digital trading cards.

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USPTO Extends Covid-19 Pilot Program into the New Year

Takeaway: The U.S. Patent and Trademark Office will extend its Covid-19 pilot program that prioritizes examination of patents related to Covid-19.

The USPTO has extended its Covid-19 Pilot Program for the fifth time and will continue accepting applications through February 15, 2023. The previous deadline was December 31, 2022, and they may extend it a sixth time, if found necessary.

The pilot program was initially created in May 2020 to support the acceleration of innovations in the fight against COVID-19. As of December 6, 2022, 353 patents had issued from applications granted prioritized status under the pilot program.


Judge’s New Investigation of Patent Troll Companies and Their Funding Moves Forward

Takeaway: Patent trolling is still a pressing issue that continues to receive attention.

Patent trolling is still an increasingly difficult issue, primarily affecting small to mid-sized businesses with unnecessary and debilitating costs. In an attempt to combat this, Delaware District Court Judge Colm Connolly started an inquiry into several patent trolling companies, including Nimitz Technologies, who have filed dozens of lawsuits in his court.

Lawyers on behalf of the patent troll companies appealed to the U.S. Court of Appeals to shut down the investigation. The appeals led several organizations, including Electronic Frontier Foundation, Engine Advocacy, and Public Interest Patent Law Institute, to file an amicus brief, standing up for the public’s right to know who is controlling and funding litigation on behalf of patent troll companies.

The Federal Circuit accepted the brief and denied Nimitz’s petition to halt the investigation. The Federal Circuit confirmed these concerns are within Judge Connolly’s purview and responsibility, but made no comment on the issue of funding transparency itself. At the center of this investigation is funding and uncovering who is paying for pricey litigation.

Federal Courts are increasingly demanding litigation funding disclosures in patent cases to have further understanding behind the intention of certain patent suits. As Judge Connolly’s investigation continues, we will keep you posted on any big developments, as this could affect the future of patent litigation.


Cislo & Thomas LLP Spotlight

Cislo & Thomas LLP Celebrates the Holiday Season

On December 16th, Cislo & Thomas celebrated the end of 2022 with a festive holiday luncheon at Boccaccio’s Restaurant in Westlake Village, CA. We handed out awards to outstanding individuals, played holiday games, and enjoyed each others’ company over a delicious meal.

To another great year ahead!