February 2021

LETTUCE TURNIP THE BEET is Not Source-Identifying as a Trademark

Takeaway: In order to be enforceable to support an infringement claim, trademarks need to be source-identifying.

The Ninth Circuit Court of Appeals recently issued an opinion affirming the grant of summary judgment to a defendant accused of infringing on the trademark “LETTUCE TURNIP THE BEET.” The district court held, and the Ninth Circuit affirmed, that consumers would not associate the phrase with any particular source, but instead find the phrase aesthetically pleasing.

Thus, the alleged trademark (which had actually been registered by the USPTO) was aesthetically functional and failed to serve as a trademark that could support a trademark infringement claim.

It is interesting that the Ninth Circuit had to resort to aesthetic functionality for a phrase that simply did not function as a trademark or was merely ornamental.

Photo Credit: Photo Credit: www. natlawreview .com /article/lettuce-turnip-beet-pun-t-shirts-not-trademark-use-ninth-circuit-affirms


Tax Credits Available for Patent Inventors

Takeaway: Tax credits are a great incentive for small businesses and independent inventors to file patents..

As of 1981, the federal Research and Development (R&D) Tax Credit allows a tax credit of up to 13 percent of eligible spending for new and improved products and processes. In order to qualify for the tax credit, research must meet the following four criteria: New or improved products, processes, or software development; technological in nature; elimination of uncertainty; and process of experimentation.

President Obama signed a bill on December 18, 2015, making the R&D Tax Credit permanent and in 2016, it was implemented to be used to offset the Alternative Minimum tax. Startups can utilize the credit against $250,000 in payroll taxes per year. These tax credits are available for a wide range of expenses in association with the production of patents. Consult your tax attorney to see if this is a benefit to you.


Works that Entered the Public Domain in 2021

Takeaway: Just this year, incredible copyrighted works from 1925 entered the public domain.

Under the U.S. Constitution, the purpose of copyright is “to promote the progress of science.” Granting exclusive rights to copyright owners acts as an incentive to writers, artists, composers, and others creators and, thus, increases the universe of human knowledge, culture, and creativity. When a work enters the public domain, it no longer has intellectual property rights and is for the public at large to enjoy without restriction.

In January this year, the works that entered the public domain include:
– Gentlemen Prefer Blondes: The Intimate Diary of a Professional Lady by Anita Loos;
– The Lost King of Oz by Ruth Plumly Thompson;
– “Sweet Georgia Brown” by Ben Bernie, Maceo Pinkard, and Kenneth Casey;
– The Freshman (motion picture starring Harold Lloyd); and
– The Great Gatsby by F. Scott Fitzgerald.


Data Breaches Becoming More Common

Takeaway: In light of major company data breaches, smaller companies need to be mindful and take action to protect against any cyber incidents and breaches.

Recently, news broke that the world-renowned law firm Jones Day experienced a third-party data breach. Only a few days ago, Kroger, the large grocery chain, made headlines itself when it had fallen victim to a data breach involving a third-party vendor’s file-transfer service.

As equally devastating is the frequency that smaller businesses get hacked. Unlike large companies, small to mid-sized businesses are more likely to suffer irreparable loss.

Smaller businesses are less likely to have the tools and training in place that would prepare them in the event a cyber incident or breach occurs. Small to mid-sized businesses seem to be more hesitant to ask for help because of what could be considered a “false sense of security,” and most do not have cyber insurance. This phenomenon is due to a gap in reporting of small business breaches — not because small to mid-sized businesses are less appealing to bad actors.

Cislo & Thomas LLP has expanded its practice to cybersecurity and data privacy using our technical abilities. See our new cybersecurity and data privacy services.


Cislo & Thomas LLP Spotlight

Our Own 2021 Super Lawyers SoCal Rising Star

Congratulations Katherine Sales, Esq. on your selection to the 2021 Super Lawyers Southern California Rising Stars list!

The Rising Stars Magazine in Southern California is one of your best resources for attorney referrals and visibility in the legal community.


Travers Morgan Now Accredited as a CIPM

Congratulations to Travers Morgan, Esq., who has now been accredited as a CIPM (Certified Information Privacy Manager). Travers is our Chief Privacy Officer at Cislo & Thomas LLP.

The CIPM, issued by the International Association of Privacy Professionals, is a designation that demonstrates the ability to lead an organization through establishment, management, and maintenance a privacy program across all stages of the information life cycle.

Great work, Travers!


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