2021 Articles

2022 Will Bring Strict Limits on Illinois Non-Compete and Non-Solicitation Agreements By Neal F. Perryman, Brian P. Pezza, & Katherine McWherter December 2021 On January 1, 2022, Illinois’ amendment to the Illinois Freedom to Work Act will take effect. The amended statute will render unenforceable non-compete agreements with employees earning less than $75,000 annually.

Copyright Trolls in the Construction Business By Margo Lynn Hablutzel May 2021 There are two main lessons to take from this article. First, copyright trolls will thrive as long as their targets are unfamiliar with decisions such as Lexington Homes and Signature Construction, and decide it is easier to pay a fee to avoid litigation. Second, in an industry where design elements are limited and certain combinations are expected, copyright infringement requires direct and unquestionable copying for liability. Merely echoing certain elements is insufficient to sustain a claim.

Copyright Trolls in the Construction Industry—But Is It Good Law and Bad Facts? By David C. Brezina September 2021 In Design Basics LLC v. Signature Construction Inc., Judge Sykes described a problem of copyright trolls. In the copyright context, this was said to be a cottage industry of registering many architectural graphics and then suing for copyright infringement, hoping to collect, at a minimum, statutory damages, and potentially an infringer’s profits. But this label made no difference to the result in the case. Not all copyrighted works have the same enforcement potential. Some works may contain highly original content, while others might only have bare minimum originality— “thin” copyrights.

Expedited Changes Coming to the Canadian Trademark Office: A Comparative Overview With the U.S. System By Alice Denenberg September 2021 In summer 2019 Canada updated its trademark laws, adopted the Nice Classification System, and joined the Madrid Protocol, enabling Canada to be designated in an international registration. However, even before these changes, the Canadian Intellectual Property Office was plagued with examination delays exasperating both attorneys and IP owners.

Fair Use Myths and Realities for Nonprofit Organizations By Nathan Breen May 2021 Nonprofits and others who repurpose online content need to take care in assessing whether: 1) the use rises to the level of infringement, 2) fair use would serve as a defense, and 3) applicable terms and conditions provide additional usage rights or limitations. As illustrated by the various cases addressing these issues, assumptions and generalizations are dangerous in this area.

A Flurry of Precedential Designations by the POP By Margaret Herrmann March 2021 Thumbnail summaries of recent precedential designations by the OTAB Precedential Opinion Panel.

Generic.com Trademarks: USPTO v. Booking.com By Kristen D. Brooks March 2021 Generic terms coupled with generic top-level domains, such as .com, .net, or .org, are not per se generic, the Supreme Court holds in USPTO v. Booking.com. What is determinative is the perception of the prospective purchaser, an empirical question.

Google v. Oracle: U.S. Supreme Court Whiffs on a Chance to Declare Code’s Status By Phillip R. Van Ness September 2021 In its April 5, 2021 decision in Google LLC v. Oracle America Inc., the Supreme Court overwhelmingly sided with Google in its long-running copyright dispute with Oracle. The decision generally pleased tech companies but upset the movie and recording industries as well as publishers and authors, not to mention the Trump administration, which sided with Oracle in this battle of heavyweights, although Google is obviously the larger of the two combatants. After the extended process inflicted on the litigants, some issues remain unresolved.

Important Changes to Copyright and Trademark Law By Beverly A. Berneman March 2021 When the Consolidated Appropriations Act of 2021 was signed into law, it included the Copyright Alternative in Small Claims Enforcement Act and the Trademark Modernization Act, which made significant changes to our intellectual property law.

Intellectual Improbabilities™ By Daniel Kegan December 2021 An eclectic gathering of recent intellectual property developments.

Intellectual Improbabilities™ By Daniel Kegan September 2021 An eclectic gathering of recent intellectual property developments.

Intellectual Improbabilities™ By Daniel Kegan May 2021 An eclectic gathering of recent intellectual property developments.

Intellectual Improbabilities™ By Daniel Kegan March 2021 An eclectic gathering of recent intellectual property developments.

The Intellectually Proper Thing to Do: Intellectual Property Pro Bono and Volunteer Opportunities in Illinois By Kenneth Matuszewski May 2021 During the COVID-19 pandemic, the demand for pro bono legal assistance has skyrocketed. Short descriptions are presented of some of the available opportunities in intellectual property to provide pro bono legal services or volunteering.

Is Your Ink Protected by Copyright? By Teresa Segalman September 2021 Copyright law has not caught up with the increasing popularity of tattoos in mainstream U.S. culture. A handful of tattoo copyright infringement claims have been brought recently, most settling before a court ruling. The lack of caselaw and absence of specific mention of tattoos in copyright statutes contribute to the ambiguity in tattoo copyright law, with some guidance provided in the context of video games and athlete’s tattoos.

ISBA IP Section Council Patents/Trade Secrets Updates By Kenneth Matuszewski March 2021 Thumbnail summaries of recent precedential federal circuit opinions.

Join the Intellectual Property Section Social Events March 2021 Notification of upcoming Intellectual Property social events.

Luck of the IP Attorney By Peggy Herrmann May 2021 For the edification of the ISBA IP Counsel, and St Patrick celebrations, council member Peggy Herrmann compiled a seven-factor quiz with answers.

Mindgeek to Settle Copyright Claims by Martha’s Vineyard Homeowner By Mark Kernes September 2021 Adult entertainment industry intellectual property disputes usually attempt to stanch video piracy. Rare is Bassett v. Jensen, claiming copyright infringement of background art in a rented Martha’s Vineyard house used to film videos. House owner Leah Bassett did not know renter Joshua Darling was videographer for the adult videos.

Nothing-but-Cheese and the Uncommon Sense of the Reasonable Consumer: Bell et al. v. Publix et al. By Jessica Guarino & A. Bryan Endres March 2021 How reasonable is the hypothetical reasonable consumer when buying a food product and, perhaps, reading the principal display panel and the ingredients statement. In Bell v. Publix, does “100% Grated Parmesan Cheese” mean there is no cellulose power and potassium sorbate added to the product?

Respecting Powerful Words—Names and Pronouns By Daniel Kegan December 2021 We have a long tradition of respecting the power of words. Trademark law has long prohibited calling your product or service a name confusingly similar to that of another. But there is little law against calling someone a name they dislike. Just as US census forms have broadened from dichotomous White and Black to multiple categories, the differences between sex and gender and the non-binary nature of both are increasingly recognized. Terminology with the health care field and transgender and gender nonconforming communities is constantly evolving. The existence of transgender individuals is recognized by mainstream organizations. Suggestions for internal firm procedures are presented. The Golden Rule is insufficient.

SAG-AFTRA Welcomes Influencers By Beverly A. Berneman December 2021 “Influencers” are a growing group of performers who use social media to affect purchasing decisions of others through their knowledge, position, or relationship with their audience. Influencers often create content that is unique and attention-grabbing. SAG-AFTRA is the union for movie, television and radio performers. Membership in SAG-AFTRA comes with attractive benefits for performers. SAG-AFTRA is now allowing influencers to become members of the union. An influencer’s on-camera (audio and/or video) performances in the content they create for an advertiser will now be considered union-covered services and allow union pension and health contributions to be made.

A Seventh Amendment Right to Fair Use Determinations? By Justin Hughes March 2021 Is there a Seventh Amendment right to jury determinations of fair use for copyright claims? Consider the Statute of Anne and other pre-1791 copyright history.

Sharing the Wealth: Student-Athletes After NCAA v. Alston By Margo Lynn Hablutzel December 2021 For decades, the National Collegiate Athletic Association (NCAA) had a simple rule: Student-athletes could not benefit financially from their skills on the playing field. Beginning with the “Sanity Code” in 1948 and continuing with some evolutions to 2021, the NCAA sought to limit the schools’ ability to offer financial incentives to preferred students. On June 21, the U.S. Supreme Court issued its unanimous decision in NCAA v. Alston, upholding injunctions based upon antitrust law which lifted limitations on certain payments by schools and conferences.

Vietnam: Evidence on Ownership & Damage in Copyright & Related Rights Litigation By Yen Vu & Trung Tran September 2021 For many years, questions have been asked on the role of the court in IP disputes in Vietnam. Although setting up an IP court is still a long-term plan, an increasing number of copyright and related rights lawsuits have initiated in Vietnam. Vietnam (Economic) Courts have gradually gained more experience in handling IP disputes, with their resolution of complicated cases that may be beyond the capacity of administrative authorities. Two recent notable court rulings on the proof of ownership and damages are discussed.

Who Has Skin in the Patent Translation Game? By Maria Eliseeva May 2021 The art of translation is a specific professional skill that transforms information in one language environment into another language and its language traditions. The ultimate quality of the translation is determined by how well it preserves and conveys the meaning and unique features of the original text. Machine translation systems and tools aid an experienced translator in various ways; however, machine translation and post machine translation editing are at best an imitation of preparing a translation. In a legal document such as a patent or patent application, even the 99 percent accuracy of the translation very often might mean that it is 100 percent incorrect. It also means that whatever the entire investment was in protecting an applicant’s patent rights in that jurisdiction was possibly wasted.