Tag Archives: intellectual property

NO FAKES Act: Unpacking the New Bipartisan Bill on Digital Replicas

July 31, 2024PatentAI Ethics, AI Regulation, Celebrity Rights, Copyright, Deepfakes, Digital Replicas, DMCA, Entertainment Law, Federal Preemption, Film Industry, first amendment, intellectual property, legislation, Music Industry, paid, privacy, Right of Publicity, safe harborDennis Crouch

Senators aim to rein in digital replicas with the “NO FAKES” Act which proposes a limited federal right to control one’s likeness using some DMCA-like notice-and-takedown elements.

Guest post by Professor Justin Hughes

This week, Senators Blackburn, Coons, Klobuchar, and Tillis introduced the bipartisan “NO FAKES” Act in Congress, a bill that has been under discussion for months and is intended to provide centerpiece legislation addressing the problem of digital replicas. The recording industry (RIAA) and the actors’ union (SAGAFTRA) have been the leading proponents of such a law. Senate Judiciary staff led a process with those groups–and with the Motion Picture Association (MPA)–that went through a long series of drafts. AI companies were also part of the drafting process.

Read the Bill: No FAKES Act text

The bill is substantively complex and structurally complicated, partly the result of so many cooks in the kitchen. What follows here are only the bill’s basics – as well as some concerns.

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Presumption of Injunction: How the RESTORE Act Aims to Re-Empower Patent Holders

July 31, 2024PatentConstitutional Law, eBay v. MercExchange, Equity, Federal Circuit, Injunctive Relief, innovation policy, intellectual property, legislation, NPEs, obviousness, paid, patent infringement, patent law, patent litigation, Patent Remedies, patent rights, RESTORE Act, Supreme CourtDennis Crouch

by Dennis Crouch

For the vast majority of American history, a judgment of patent infringement (by a court sitting in equity) led almost directly to injunctive relief barring ongoing infringement. This construct was flipped by the Supreme Court's 2006 decision in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), a case which served as the first major step of weakening patentee rights over the past two decades. Now, a new bipartisan bill aims to restore the pre-eBay status quo. The Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act of 2024, introduced by Senators Coons (D-Del.) and Cotton (R-Ark.), with a House companion bill from Representatives Moran (R-Texas) and Dean (D-Pa.), seeks to reshape and repair the availability of injunctive relief for patent holders. As you'll see, one nice element of the Bill is that it simply adds 1 sentence - creating a rebuttable presumption

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Federal Circuit Closes Book on TRUMP TOO SMALL Trademark Saga

July 30, 2024PatentConstitutional Law, Federal Circuit, first amendment, free speech, Here's the list of tags in CSV form: Trademark Law, intellectual property, Lanham Act, paid, Per Curiam Decision, Political Speech, Right of Publicity, Supreme Court, Trademark, Trademark Litigation, trademark registration, trademark trial and appeal board, TrumpDennis Crouch

by Dennis Crouch

In a brief order, the Federal Circuit has put what appears to be the final nail in the coffin of Steve Elster's attempt to register "TRUMP TOO SMALL" as a trademark.

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Dewberry Group: Structuring the Firm to Avoid Trademark Liability

June 24, 2024Patentcertiorari, corporate separateness, corporate veil, Damages, disgorgement, intellectual property, Lanham Act, litigation, paid, Supreme Court, TrademarkDennis Crouch

by Dennis Crouch

The U.S. Supreme Court has granted certiorari in Dewberry Group, Inc. v. Dewberry Engineers Inc., a trademark damages case focused on how corporate separateness principles apply to disgorgement remedies under the Lanham Act, 15 U.S.C. § 1117(a). The Fourth Circuit's decision affirmed a $43 million disgorgement award against petitioner Dewberry Group (DG) for trademark infringement, an amount that included profits earned by DG's "legally separate" corporate affiliates. Apparently, the affiliates were “single-purpose entities,” also privately owned by John Dewberry, whose sole function was to own commercial properties serviced by DG.

Pierce the Veil: In its literal sense, a veil is a delicate fabric that separates the visible from the concealed, a barrier that can be easily lifted or parted. However, the phrase has a history of extending beyond the material world, with a veil often serving as a boundary between the physical and spiritual realms in our universe. Many of us go through life, only occasionally glimpsing beyond this veil into the hidden spiritual dimensions that, according to story tellers, lie alongside our own. In the corporate world, the veil of corporate personhood serves to shield the owners from personal liability, creating a legal fiction that separates the actions of the company from those of its shareholders. This veil of protection is not impenetrable, however, and can be pierced by the courts in cases of serious misconduct or wrongdoing, exposing the owners to personal responsibility. Although the truth of owner identity may already be known, piercing the corporate veil removes the protection against responsibility by attempting to holding accountable those who would misuse its protections. But, the legal doctrine of corporate separateness is quite strong and I might venture that it is easier to pierce the veil of our spiritual realms than the corporate analogue.

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Discussing Stern’s “Myth of Nonrivalry” for Patent Law

May 19, 2024PatentDamages, double patenting, information goods, injunctions, intellectual property, nonrivalry, Oil States, paid, patent law, property rightsDennis Crouch

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A New Horizon: Design Patent Practitioner Bar Proposed by USPTO

May 15, 2023Patentdesign patent, intellectual property, notice-and-comment, paid, patent eligibility, patent infringement, patent law, patent litigation, patent prosecution, USPTO, USPTO DirectorDennis Crouch

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Can States Legislate in the AI Rights Space?

May 9, 2023Patentartificial intelligence, Bonito Boats, intellectual property, paid, patent eligibility, patent law, patent system, preemption, state law, Supreme Court, USPTODennis Crouch

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An API for the Human Mind

May 6, 2023Patentai, artificial intelligence, brain, fMRI, functional near-infrared spectroscopy, gpt, intellectual property, mind reading, paid, patent law, privacy, softwareDennis Crouch

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Generative AI and Copyright

May 4, 2023Patentartificial intelligence, Copyright, DTSA, intellectual property, Lanham Act, paid, patent law, patent litigation, patent prosecution, trademark lawDennis Crouch

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Introducing the Trade Secret Case Management Judicial Guide

February 17, 2023Patentcase management, DTSA, intellectual property, judicial guide, paid, trade secretDennis Crouch

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Subreddit Drama

February 16, 2023Patentcorporate ownership, good faith and fair dealing, intellectual property, paid, rights of publicity, social media, subreddit, Trademark, trademark opposition, trademark registration, user-generated contentDennis Crouch

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