Ho, Ho, Ho … Hold On … Did Legal Approve That?

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The holidays are upon us — and so too are holiday advertising campaigns. With an unusual holiday season last year, many retailers are gearing up for what they hope to be a robust holiday season. Even with concerns over supply chain issues, retailers and brands are doubling down on holiday advertising campaigns this year and pushing out festive, eye-catching content to lure customers. To stop the Legal Grinch from stealing the gifts from these campaigns, here’s a quick refresher on a few important legal considerations:

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New Year’s Resolutions Don’t Have to Be about Weight Loss: Why Conducting a Trademark Audit Should Be Part of Your Company’s New Year’s Resolutions

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New Year’s resolutions are often thought of as individual self-improvement goals that frequently include aspirational health and wellness, financial discipline, habit forming or breaking, and similar goals.  But these aspirational, improvement-focused goals do not need to be limited to personal goals.  In fact, the “New Year, New You” mantra applies equally to the business world.  The new year is a great time to push the reflect and reset button and to use the results of this reflection to accomplish business goals, including goals related to the company’s trademark portfolio.  Finding time in the new year to conduct reflection in the form of an in-depth review of your trademark portfolio (often referred to as a trademark audit) can be a meaningful and important exercise for a number of reasons, including ensuring there are no significant gaps in coverage or other issues associated with your trademark portfolio that could negatively impact your business, such as compliance issues with requirements and deadlines for maintaining trademark rights, chain-of-title concerns, or improper use of trademarks that could impact the company’s rights.  In addition, an audit, when performed correctly, can also provide a critical roadmap for the company for its trademark portfolio going forward.

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The Functionality Doctrine Remains Strong

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The functionality doctrine remains strong. In a recent decision, the Trademark Trial and Appeal Board relied on the doctrine of functionality in finding that the product configuration mark at issue was unprotectable under Section 2(e)(5) of the Lanham Act.

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