Tag Archives: Lanham Act

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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Trump Too Small: Supreme Court Upholds Lanham Act’s Restriction on Registering Marks With Living Individual’s Names Without Consent

June 13, 2024Patentcontent-based, free speech, history and tradition, Lanham Act, paid, Section 2(c), source-identifying function, trademark law, viewpoint discriminationDennis Crouch

by Dennis Crouch

In an important trademark law and free speech decision, the Supreme Court held in Vidal v. Elster, 602 U.S. ___ (2024), that the Lanham Act's "names clause" barring registration of a mark that "[c]onsists of or comprises a name . . . identifying a particular living individual except by his written consent", 15 U.S.C. § 1052(c), does not violate the First Amendment. Writing for the Court, Justice Thomas distinguished this case from the Court's prior decisions in Matal v. Tam, 582 U.S. 218 (2017) (disparaging marks) and Iancu v. Brunetti, 588 U.S. 388 (2019) (scandalous marks), which struck down other Lanham Act restrictions as unconstitutional viewpoint discrimination. Although content-based, the Court concluded that the names clause is viewpoint-neutral and consistent with the longstanding history and tradition of trademark law.

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False Patent Marking as False Advertising: Overcoming Dastar

April 17, 2024Patentcommercial advertising, Dastar v. Twentieth Century Fox, false advertising, false patent marking, inventorship, Lanham Act, paid, patent law, Section 43(a)(1)(B)Dennis Crouch

by Dennis Crouch

The Federal Circuit is set to consider the use of terms like "patented," "proprietary," and "exclusive" in commercial advertising can be actionable under § 43(a)(1)(B) of the Lanham Act when their use is not entirely accurate. The key issue on appeal is whether the district court erred in granting summary judgment for Crocs on Double Diamond Distribution and U.S.A. Dawgs' ("Dawgs") counterclaim for false advertising under the Lanham Act.