A new year means a new Supreme Court session. Here are three top US intellectual property cases to watch out for this year.
Lee v. Tam
(Disclaimer: The author of this blog is not of any relation to the Tam mentioned in this case.)
The Supreme Court heard this trademark case on January 18, 2017. This case centers around Section 2(a) of the Lanham Act which states that trademarks that contain “immoral, deceptive, or scandalous matter; or that disparages or falsely suggests a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” may not receive trademark protection. The Slants are an Asian-American rock band seeking to reclaim a racial slur. They are arguing that the statute violates their first amendment rights. The decision in this case is being closely watched as it will affect the Washington Redskins case along with other cases where a trademark has been deemed to disparaging to register, such as Dykes on Bikes.
Belmora LLC v. Bayer Consumer Care AG
The Supreme Court this year is also set to hear a case regarding jurisdictional limitations of the Lanham Act. In this case, German pharmaceutical company Bayer uses the trademark FLANAX to market a painkiller known as ALEVE in the United States. Bayer does not use the trademark FLANAX in the United States and did not submit an application for the mark in the United States. In spite of this, they sued Belmora for trademark infringement after Belmora started using the brand in the United States to market a painkiller in the United States. The previous court, the Fourth Circuit, ruled in favor of Bayer under the theory of unfair competition. Depending on how the Supreme Court rules this case will have a wide ranging effect on how far the Lanham Act can assert its jurisdiction.
Star Athletica LLC v. Varsity Brands Inc.
This case centers around whether clothing designs can be protected by copyright. Traditionally, clothing was considered a useful article, and thus not entitled to protection under copyright law. However, the previous court in this case, the Sixth Circuit, ruled that the decorative elements of a piece of clothing, such as the chevrons and stripes of a cheerleader uniform were “conceptually separable” from the clothing itself, and thus entitled to copyright protection. As the only copyright case on the Supreme Court’s docket for the year, this case is being closely watched by fashion designers who have long sought greater legal protection for their designs.
Jessica Tam is an attorney in the Mountain View office of LegalForce RAPC. She specializes in trademarks, copyrights, and intellectual property licensing and disputes.