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Supreme Court to Resolve Split Regarding Copyright Registration Requirement

Section 411(a) of the U.S. Copyright Act provides that an action for copyright infringement may be brought after “preregistration or registration of the copyright claim has been made in accordance with this title” or “where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused.”  The courts are split as to whether a copyright claim may be brought once the copyright application, deposit, and fee is delivered to the Copyright Office or whether the plaintiff must wait until the Copyright Office responds to the application. The Fifth and Ninth Circuits have held the former, under the “application approach,” while the Tenth and Eleventh Circuits have held the latter, under the “registration approach.”  The First, Second, Third, Fourth, Seventh, and D.C. Circuits have all acknowledged the divide, but refused to decide one way.  The Supreme Court recently granted certiorari to an Eleventh Circuit case, Fourth Estate Public Benefit Corporation v. Wall-Street.com, to address this question.

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Spongebob Squarepants’ Fictional Restaurant Granted Real Trademark Rights

One of the bedrock principles of trademark law is that trademark rights stem from actual use of the trademark in commerce.  In recent years, however, courts have been finding that imaginary use of the trademark in fictional works can suffice to create real right in a nonfictional setting.

The latest example of this phenomenon took place in Viacom International Inc. v. IJR Capital Investments, where the Fifth Circuit affirmed a lower court decision granting trademark protection to the Krusty Krab, a fictional restaurant in the television series SpongeBob SquarePants.  Viacom sued IJR Capital Investment for unfair competition and trademark infringement because IJR had been trying to open up seafood restaurants in California and Texas under the Krusty Krab name since 2014.  IJR Capital claimed that they did not base their name on the fictional restaurant, but rather the crusted glaze applied to cooked seafood.  IJR noted that there was no Krusty Krab trademark already registered with the United States Patent and Trademark Office.

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The Medium Rules: Long-Term Trends In Media and Technology – Episode 2 – Evan Kraut & Guy Poreh

Podcast Episode 2 Now Live!

Alignment: Accelerating Funded Startups and the Agency of the Future, with guests Evan Kraut & Guy Poreh.

With the proliferation of funded e-commerce startups focused on the direct-to-consumer, how is brand created and how can startups adapt to the changing tastes and trends to reach consumers and drive sales? Further, what are some models for agencies to reinvent themselves to not only survive, but to thrive as the media landscape evolves? How can agencies be better aligned with their clients and drive success both for the client and the agency stakeholders?

The Medium Rules host, Alan Baldachin, is joined in the HBA Podcast Studio in New York City by Evan Kraut, who runs Grey Adventures for Grey Group, and Guy Poreh, founder and CEO of Playground. Grey Adventures is best characterized as Grey’s “skunk works” team, focused on developing innovative products and services that fuel new revenue streams for Grey’s brand clients, its partners and the agency itself. And Playground is a “record label” for startups which takes an “immersive” approach to partnering with funded startups on sales and marketing to “accelerate fame”. In this episode of The Medium Rules Alan, Evan and Guy cover such ground as the success story behind Quip, the intersection of frontier technology and the traditional agency model, branding issues related to legal cannabis businesses, and, finally, some thoughts about what the agency of the future might look like.

Show resources
Guy:
https://www.linkedin.com/in/guyporeh
https://www.thisisourplayground.com/
https://www.porehomg.com/
https://twitter.com/guypo

Evan:
https://www.linkedin.com/in/ekraut
https://twitter.com/evanmk

 

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The Medium Rules: Long-Term Trends in Media and Technology

Conversations with founders, investors and thought leaders in the orbit of HBA’s tech and media ecosystem and beyond. How are media and technology companies conceived, how do they scale, and how do they interact with the broader social, economic and political culture we live in today and that we will inhabit in the future. This is a show about innovation and its effects on our lives, hosted by HBA’s managing partner and head of media and technology, Alan Baldachin.

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ADA Website Accessibility Litigation Presents High Risk to Retailers

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Adam Michaels | amichaels@hballp.com

Summary

The number of US lawsuits filed by visually impaired and other disabled people targeting business websites for violating the Americans with Disabilities Act (ADA) has reached fever pitch. Recent court rulings have emboldened plaintiffs’ attorneys and a significant uptick in litigation is expected in 2018. New York has proven particularly welcoming to these cases, with nearly 300 ADA website lawsuits targeting retail, fashion, and financial institutions filed in New York’s federal courts in the first quarter of 2018.

Despite this explosion of activity, many businesses are still unaware of the legal risk and continue to operate websites that fall short of accepted accessibility standards, courting ADA claims. Although monetary damages are unavailable under the ADA, these cases are not easily dismissed and the defense costs can be significant. To help minimize the lawsuit risk, businesses should consider proactive measures to ensure their websites meet the current accessibility standard.

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Important Trademark Litigation Victory For HBA Client Affirmed on Appeal

Essentially concluding over five years of litigation, the Second Circuit Court of Appeals on November 2, 2017 upheld the trial court’s determination that the sale of Clipps bag closures by Schutte Bagclosures Inc. (“Schutte”) did not infringe any trademark rights Kwik Lok Corporation (“Kwik Lok”). The court further upheld the lower court’s determination that Kwik Lok’s claimed trademark rights in the shape of bag closures were invalid because the shape was “functional” and that Kwik Lok’s trademark registration for that shape should be cancelled.
The same parties previously faced each other in court in the Netherlands, where the judge also ruled that Kwik Lok did not have valid trademark rights in their bag closures.

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