Given the ubiquity of emoji, businesses have used them in commercial ad campaigns. Honda has used emoji in creative advertisements, releasing Aprils Fools’ ads in 2016 and again in 2017. Twentieth Century Fox created some buzz last year when it placed a billboard in Los Angeles advertising a movie release (guess which one) with the following message:

Deadpool Teaser Poster

Translation: “Deadpool.” Adweek wrote an article entitled: “Deadpool’s Emoji Billboard Is So Stupid, It’s Genius.”


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Demand for Olympic merchandise in the United States is resurrected every 4 years by the fervor of the televised Games. Officially, authorized and licensed gear is readily available in stores and on the Internet; however, every iteration of the Games brings with it a flood of counterfeit Olympic goods as well. The broadcasting of this year’s Olympics in Rio de Janeiro has, as expected, beckoned all sorts of counterfeit Olympic items to the U.S. market. From t-shirts illegally emblazoned with “Team USA”, to phony gold medals inscribed with the Olympic Rings. This blog post explores the laws that protect consumers and Olympics rights-holders in the United States from counterfeit Olympic goods.

Under 15 U.S.C. § 1127, a counterfeit is an article that includes unauthorized use of a logo, name, or other trademark that is “identical with, or substantially indistinguishable from” a registered trademark. The widely recognizable signs, symbols, and words affiliated with the Olympics, Paralympics, and Pan-American games are all registered trademarks. This includes, but is not limited to, the torch, the five interlocking rings, and the words “Team USA.”


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With the opening ceremony for the Rio 2016 Olympic Games less than 1 month away, Olympic sponsors and non-sponsors alike are thinking about how they may be able to capitalize on the event’s popularity. Brands must, however, beware of using Olympic trademarks (as discussed in our previous blog post, Golden Rules: Wrestling with the Use of Trademarks), in large part, because of the relative ease with which Olympic rights-holders, such as the United States Olympic Committee (USOC), can take legal action. In the United States, under the Ted Stevens Amateur Sports Act (Ted Stevens Act), the USOC has exclusive rights to use “Olympic,” “Olympiad,” the interlocking rings, event mottos and other Olympic trademarks. The Ted Stevens Act also prohibits use of any word, symbol, or combination thereof that “tends to cause confusion or mistake, to deceive, or to falsely suggest a connection with the user and the Olympics”. In practice, this is a very broad prohibition.

For example, the interlocking ring design is a trademark owned and controlled by the USOC. Unauthorized use of the image of the rings is not permitted on the basis of copyright defenses, such as the public domain or fair use, despite popular misconceptions to the contrary. The rings, and other Olympic trademarks, including the word “Olympics,” are also not generic. Use of the word “Olympics” can be protected by free speech in narrow circumstances, but if you are an advertiser reading this blog, it’s highly unlikely that you will be able to fit your uses into that “protected speech” category, even if you can credibly claim that your use is expressive.


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As excitement builds for the 2016 Olympics and Paralympics in Rio, companies and organizations, big and small, will be tempted to use the “Games” or the “Olympics” to promote their products, services and agendas. But, they must beware of getting too caught up in the Olympic spirit. Although Olympic and Paralympic trademarks such as the interlocking rings, “Rio 2016,” and “Faster Higher Stronger” may be ubiquitous, especially this summer, an unauthorized use of such trademarks could bring a lot of legal headaches to the user.

Some background: 
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When launching any type of marketing, advertisers should be on the lookout for potential Intellectual Property (“IP”)  claims, in addition to potential exposure based on advertising-related laws.  This is often referred to as “IP Rights Clearance.”  Some of our previous blog posts have discussed various lawsuits and court decisions that underscore the importance of IP Rights Clearance in your sales and marketing activities.  Below is a non-exhaustive list of some practical tips we recommend as a starting point as you develop your own guidelines for IP Rights Clearance:
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Did you know that, under the U.S. copyright law, if a third party uploads or posts copyrighted material to your website, and the third party did not have authorization to do so from the copyright owner or exclusive licensee of that material, your organization can be held strictly liable for copyright infringement as the operator of the website where it was posted or uploaded?

This is alarming but true – there is strict liability in copyright law.  This means that, even if your organization did not put the infringing content on your website, or did not even know it was there, you can be held strictly liable for infringing content uploaded to your website by another.


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Trademark enthusiasts, hold onto your hats. The Trademark Trial and Appeals Board (TTAB) just got a bit of a promotion, compliments of the U.S. Supreme Court. On March 24, 2015, the Court released its decision in the long-awaited B&B Hardware v. Hargis Industries case, holding that TTAB findings of mark similarity can be preclusive in later federal proceedings as long as “the ordinary elements of issue preclusion are met.”  This ruling stands in direct opposition to the majority of recent federal precedent, and may dramatically increase the import of TTAB rulings in the coming years. In other words, the TTAB just got a lot more powerful.

What is this case about, anyway?

This case initially arose when Hargis Industries applied to register the trademark “SEALTITE” in the construction industry in 1996.  B&B Hardware opposed this application and simultaneously filed a trademark infringement lawsuit, asserting that B&B had previously registered the trademark “SEALTIGHT” in 1993. While B&B’s federal suit was pending the TTAB determined that Hargis’s proposed mark was confusingly similar to B&B’s mark and denied Hargis’s trademark application. As a result, B&B argued in its district court proceeding that the TTAB’s finding of mark similarity was entitled to preclusive effect in the court. 
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We are entering a brave new world of food design and regulation brought to us through the mechanical development and visual artistry of 3D printing. As with any new medium, understanding what we confront and its regulation lag behind the medium’s implementation.

3D printing, also referred to as “additive manufacturing” or “rapid prototyping,” is the process of making three-dimensional objects from digital designs. Two of the most common types of printers are “disposition printers,” which deposit layers of materials until the 3D object is built, and “binding printers” which build the object by binding, usually with adhesive or laser fusing, the underlying layers, to create a whole object at the end of the process.


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3DPrinterWe agree – the Jetsons era has indeed arrived. Beyond the days of “smart” everything, now 3D printing has taken center stage in the tech world. While it is not so farfetched to imagine 3D-printed machine parts, prototype models, or even toys, it is might be harder to watch it printing foods, implantable medical devices, cosmetics, drugs and even human tissue. All too futuristic? Not really. The technology of 3D-print FDA-regulated products is, in large part, already here and rapidly progressing.

Yet, as technology continues to develop, questions arise as to whether, and how, the U.S. Food and Drug Administration’s (“FDA”) regulatory framework will keep pace to impose the same safety, quality and efficacy standards to 3D-printed foods, drugs, cosmetics, and medical devices that currently apply to traditionally manufactured goods. How FDA chooses to deal with 3D-printed products will significantly impact not only barriers to market entry, but also post-marketing enforcement risks. Similarly, even assuming an FDA-regulated 3D-printed product is successfully brought to market in accordance with FDA standards, manufacturers must still assess options and potential challenges associated with protecting their intellectual property.

Through this multi-part blog series, we will explore these questions, considerations and challenges for 3D printing that are likely to be regulated by FDA, with particular focus on foods (consumed on earth and in space), cosmetics and medical devices. While, at this stage, FDA issues may raise more questions than clear answers, this blog series will explore and discuss the topics that are at the forefront of FDA’s agenda regarding 3D printing and, therefore, require careful consideration by any company that contemplates involvement in the 3D-printed foods, cosmetics or devices industries. 
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