Trademark law prohibits registration of “any matter that, as a whole, is functional.” 15 U.S.C. § 1052(e)(5). “A product design or a product feature is considered functional in a utilitarian sense if: (1) it is ‘essential to the use or purpose of the article,’ or (2) it ‘affects the cost or quality of the article.’” […]
Evidence of actual confusion is “often the best evidence of a likelihood of confusion.” King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1092 (10th Cir. 1999); Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1265 (9th Cir. 2001). But isolated instances of actual confusion are not enough. Indeed, isolated instances […]
To find a likelihood of confusion, the respective goods and services need not be identical or even competitive. But there still must be evidence in the record that the goods and services are related. Or that they are marketed in a manner that could give rise to the mistaken belief that they emanate from the […]
Finding a likelihood of confusion with the registered CLAIM WATCH and Design mark for “Tracking and monitoring the status of insurance claims for business purposes”; the USPTO had refused to register CLAIM WATCHER for “Health benefit plan services, namely, insurance administration services, namely, assisting others with adjusting insurance claims in the nature of repricing health […]
In a 7-2 decision, the U.S. Supreme Court affirmed in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, No. 21-869, __ U.S. __ (May 18, 2023), that the first fair use factor, namely, “the purpose and character of the use” under 17 U.S.C. § 107(1), favored the photographer over the artist who subsequently used […]