On June 8, 2023, the Supreme Court in a unanimous decision held that a trademark claim concerning “a squeaky, chewable dog toy designed to look like a bottle of Jack Daniels whiskey” which, as a play on words, turns the words “Jack Daniels” into “Bad Spaniels” and the descriptive phrase “Old No. 7 Brand Tennessee Sour Mash Whiskey” into “The Old No. 2 On Your Tennessee Carpet” does not receive special First Amendment treatment where the accused infringer used the trademarks at issue to designate the source of its own goods and that, with respect to a Lanham Act dilution by tarnishment claim, “[t]he use of a mark does not count as noncommercial just because it parodies, or otherwise comments on, another’s products.”[1]Continue Reading Supreme Court Rules “That Dog Don’t Hunt”: Bad Spaniels Toy’s Use of JACK DANIELS Marks is a Poor Parody and Dilution Act Applies

On May 18, 2023, the United States Supreme Court ruled in favor of famed rock photographer Lynn Goldsmith against the Andy Warhol Foundation for the Visual Arts, Inc.’s (AWF),[1] in a long-awaited decision impacting fair use under Section 107(1) of the Copyright Act. The opinion written by Justice Sotomayor, in which Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett and Jackson joined, held that the “purpose and character” of AWF’s commercial use of Warhol’s portraits of Prince shared the same commercial purpose of the original photograph taken by Ms. Goldsmith and, as a result, did not constitute fair use.[2] The Court’s decision affirmed the ruling of the Second Circuit Court of Appeals, which held that the Warhol work was derivative of the original, and noted that “the new expression may be relevant to whether a copying use has a sufficiently distinct purpose or character” but that factor was not dispositive by itself.[3] The Court found that the Warhol Foundation’s licensing of the Orange Prince to Conde Nast did not have a sufficiently different purpose as the Goldsmith photograph because both were “portraits of Prince used in magazines to illustrate stories about Prince.”[4]Continue Reading Supreme Court Finds Warhol’s Commercial Licensing of “Orange Prince” to Vanity Fair Is Not Fair Use and Infringes Goldsmith’s Famed Rock Photo

Pinterest has seen its number of daily visitors increase by 145 percent since the beginning of 2012, now counting 11 million users on its site, according to recent reports. It is a powerful social media tool by any standard, however, in recent months, with its meteoric rise, concerns have also surfaced about potential copyright issues. Needless to say, companies are clamoring to gain access to this vast and ever increasing pool of users, but they should (and can) proceed with caution in order to stay on the right side of the copyright issues.
Continue Reading Companies Using Pinterest, Be Careful Not to Get Pricked

Brands have life cycles and the brands that create a credible emotional connection with the consumer are likely to be able to demand higher consideration and maintain brand loyalty. One must consider what legal protections to employ and which pitfalls to avoid in building a strong and evolving brand in light of the key trends for branding in the New Millennium.
Continue Reading How to Legally Protect Your Brand in the New Millennium