In today’s digital economy, subscription-based content platforms like OnlyFans, JustforFans, Vimeo, Patreon, and YouTube have created unprecedented opportunities for creators to monetize their work directly to the consuming public. However, these opportunities come with complex intellectual property (IP) considerations that content creators must understand to protect their rights and avoid potential legal issues. Copyright Fundamentals …
Understanding Genericide of Color Marks
Color Marks: The Basics Color marks represent one of the more challenging types of non-traditional trademarks. Since the landmark Supreme Court decision in Qualitex Co. v. Jacobson Products Co., single colors can serve as trademarks when they identify the source of goods or services. However, obtaining trademark protection for a color presents unique hurdles: Last …
Understanding the Selection-and-Arrangement Theory in Copyright Law
Introduction In copyright infringement cases, courts must determine whether one work impermissibly copies another’s protected expression. While the widely used “extrinsic test” focuses on comparing specific elements between works, the selection-and-arrangement theory offers a different analytical framework that recognizes that creativity often lies in how creators select, coordinate, and arrange elements—even when the individual components …
Through the Forest Maze: Understanding Priority & Patent Term
Patent law can be complex and overwhelming, even for experienced practitioners. In re Donald K. Forest issued by the Court of Appeals for the Federal Circuit highlights one of these challenging areas: the interplay between patent priority and patent term. What Is Priority? Think of patent priority as your place in line at the USPTO. …
Heating Up: FIREBALL Not Generic
Understanding Trademark Genericism Trademark law exists to protect distinctive marks that identify the source of a particular good or service. However, when a trademark becomes so widely known that it no longer acts as a source identifier, but the mark primarily describes the product in which it is being used, it risks becoming “generic” and …
Note on the Useful Articles Doctrine in Copyright
Copyright law broadly protects creative works and the human endeavors required to create an original work of authorship. However, creativity should not be confused with utility. A dictionary definition for “creativity” is “ability to make or otherwise bring into existence something new.” A definition for “utility” is “the quality or state of being useful.” A …
Understanding the Doctrines of Natural Expansion and Tacking
A recent Court of Appeals for the Federal Circuit case sheds light on two little-known trademark doctrines: the doctrine of natural expansion and the doctrine of tacking. Both can be useful arguments in an ex parte application. However, both require very specific sets of facts in order to apply them properly in a response. In …
AI Works Not Eligible for Copyright Registration
Consistency in intellectual property regimes is essential for a uniform practice of those intellectual property laws. Case in point is Thaler v. Perlmutter, a copyright case holding that works created by artificial intelligence software is not a human author for purposes of the Copyright Act of 1976 (See 17 U.S.C. §102(a) (“Copyright protection subsists . …
Notes on Copyright Registration of AI-Assisted Works
On January 31, 2025, the U.S. Copyright Office issued examination guidelines related to registration of works either assisted or generated by artificial intelligence tools. This blog discussed these guidelines in an earlier post. While there has been much angst as to the guidelines’ impact on creative endeavors involving AI-assisted works, it appears there are some …
Understanding Trademark Distinctiveness
The concept of distinctiveness is important under trademark law because it is one of the requirements for a federally registered mark. Distinctiveness goes to the strength of the mark. In theory, the more distinctive a mark, the more likely it is capable of identifying and distinguishing against all other sources of goods and services used …