In a unanimous decision, the Supreme Court held that a district court erred when it included profits of the defendant’s non-party affiliates in its calculation of “defendant’s profits” under the Lanham Act.Read more
Incontestable Blog
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Thomson Reuters Enter. Centre GmbH et al v. ROSS Intelligence Inc.
On February 11, 2025, the U.S. district court for the District of Delaware revised its own 2023 opinion and found on summary judgment that ROSS Intelligence’s (“Ross”) use of certain Westlaw “headnotes” to develop Ross’s AI-powered legal research tool constituted copyright infringement and not fair use. The court granted most of copyright owner Thomson Reuters’…
Second Circuit Denies Rehearing En Banc, Affirming No Reasonable Jury Could Find Sheeran’s “Thinking Out Loud” and Gaye’s “Let’s Get It On” Are Substantially Similar
The U.S. Court of Appeals for the Second Circuit vindicated pop star Ed Sheeran against copyright infringement claims directed to his 2014 hit “Thinking Out Loud.” A holding company called Structured Asset Sales, LLC (“SAS”) sued Sheeran in 2018, claiming that “Thinking Out Loud” infringed the copyright in Ed Townsend and Marvin Gaye’s 1973 song…
USPTO Trademark Fees: Changes for 2025
Effective January 18, 2025, trademark applicants and registrants will face changes in USPTO trademark fees. The USPTO last increased existing fees and introduced some new fees in 2021. It published its final rule-making on trademark fees on November 18, 2024. The most significant changes are highlighted below.Read more
USPTO to Target Fake Trademark Specimens of Use With Expanded Audit Program
Hoping to crack down on the ever-increasing problem of overbroad trademark registrations and fake specimens of use, the United States Patent and Trademark Office (“USPTO”) has announced that it will expand its existing audit program, currently conducted on a random basis, to include directed audits for certain trademark filings. Read more
Librarian of Congress Adopts New Exemptions Under Section 1201 of the DMCA
Section 1201 of the Digital Millennium Copyright Act (“DMCA”) generally makes it unlawful to circumvent technological measures used to prevent unauthorized access to copyrighted works, including copyrighted books, movies, videos, video games, and computer software. Effective October 28, 2024, the Librarian of Congress adopted new exemptions to this statutory prohibition on circumvention. The Librarian issued…
Internet Archive’s Digital Lending Library Not Protected by Fair Use, Second Circuit Finds
The Court of Appeals for the Second Circuit found that Internet Archive’s (“IA”) free digital book lending program is not fair use under the Copyright Act. The Court’s three-judge panel unanimously affirmed last year’s district court ruling (discussed in our previous blog post here) finding that the non-profit’s controlled digital lending practice infringed four…
DMCA Survives Another First Amendment Challenge
The United States Court of Appeals for the District of Columbia Circuit recently issued its decision in Matthew Green v. DOJ, rejecting a First Amendment challenge to section 1201 of the Digital Millenium Copyright Act (“DMCA”). Section 1201 prohibits the circumvention of technological protections on copyrighted works and the distribution of the means to circumvent.…
U.S. Copyright Office Says New Federal Right “Urgently Needed” to Protect Individuals from Unauthorized Deepfakes
The U.S. Copyright Office recently issued a policy report concerning AI-generated images and recordings that impersonate others by mimicking their voice or visual likeness, otherwise known as “deepfakes” or “digital replicas.”Read more
Going for Advertising Gold: Guidelines for Advertising During the Olympic and Paralympic Games
With Opening Ceremonies in Paris just days away, athletes all over the world are getting ready for high-stakes performances.Read more