U.S. Supreme Court Analyzes Copyrights, Trademarks, and Patents
The U.S. Supreme Court seems to be focused on the realm of intellectual property. Some of the cases we've covered before will be cemented as either the law of the land or overturned by the justices. The four cases include: (i) Star Athletica v. Varsity Brands; (ii) Lee v. Tam; (iii) Samsung v. Apple; and (iv) Lenz v. Universal. Samsung and Lenz cover the liability of entities for taking certain actions. Comparatively, Varsity and Tam clarify the boundaries of copyright and trademark laws, respectively. So, what do these cases specifically cover? How strong is the impact? What should a business owner prepare for?
In Star Athletica , the high court is analyzing the idea of what is and what is not functional within the current copyright regime. The case arose out of the Sixth Circuit over the design and elements of cheerleading uniforms (e.g., chevrons, stripes) as copyrightable items. While it was agreed that patterns or designs can be copyrighted, however, there's concern as they fall under the useful article provision of copyright. Since the patterns have discernable purposes, it can be argued that the uniforms serve a function and shouldn't be considered under copyright. This has caused some alarm, as the function of the design could be viewed to kill off grey-market or knock-off goods that use same or similar patterns, even if they can be applied elsewhere, like a lunchbox or sticker.
Lee v. Tam , as we've discussed before, is about what may or may not be copyrightable. It deals with the disparaging marks provision in trademark law, prohibiting trademarks that offend individuals or groups (e.g., "The Slants" or "Redskins"). A ruling for the slants would enable the trademark of slightly more risqué subject matter, and has the possibility for allowing uncouth trademarks to pass under free speech rights. In the alternative, this could go the way of Walker, and find that a denial of trademark or a license plate design constitutes valid government speech.
Lenz and Samsung both deal with liability. In Samsung, the company tried to lower the $400 million verdict by stating that if a design patent was only partially infringed, then the award should be limited to the sales and income attributed to that infringement. This also has implications depending on the ruling of the Star Athletica case, depending on how and if copyright is extended to artwork affixed to clothing. Finally, Lenz is up for certiorari, but has the potential to impose liability for attorney's fees and other expenses under section 512(f) if an internet company fails to go through a proper fair use check.
Ultimately, the cases to watch for vary on the business interest. Manufacturing-oriented businesses should closely watch Star Athletica and Samsung for an adequate idea of the extension of any copyrights and limits to remedies. Online businesses should closely watch Lenz, as it could impose liability for filing a takedown request without a fair use evaluation. Tam should be more widely watched, especially for start-ups, as it opens trademarks for groups looking to reclaim slurs, though it may result in further trademark disputes and the possibility of harming other brands with confusingly similar, but offensive marks.
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