HBA Tag

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.

Listen now on iTunes.

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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HBA Welcomes Litigation Partner Adam Michaels

HBA Welcomes Litigation Partner Adam Michaels

NEW YORKMarch 7, 2018 /PRNewswire/ — Joining HBA as head of the firm’s litigation practice, Adam Michaels brings nearly twenty years of sophisticated litigation experience representing companies and individuals in matters related to consumer products, financial services, food and beverage, fashion and lifestyle, healthcare, and technology.  Adam’s practice covers the full range of commercial litigation, with particular focus on representing business clients in complex contract disputes.  Adam regularly counsels on litigation avoidance, risk management, marketing strategy, and regulatory compliance.  He joins HBA from the New York office of Pepper Hamilton, where he was Of Counsel.  Prior to that, Adam practiced at Goodwin Procter.  Adam earned his J.D. from Georgetown University and his A.B. from Columbia University.

“We are excited to welcome Adam to our firm,” Managing Partner Alan Baldachin said.  Founding Partner Douglas Hand added, “Adam is tenacious litigator with a practical and efficient approach to resolving business disputes.  Adam’s experience and talent will complement our other practice areas and will be a great asset for our clients.”

HBA is a corporate and commercial law firm in New York, NY focused on media, technology and fashion & lifestyle, with expertise in venture capital, mergers and acquisitions, litigation, real estate and intellectual property.

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Justin Pollak

Hand Baldachin & Amburgey is Pleased to Announce the Promotion of Justin Pollak to Partner

Hand Baldachin & Amburgey is Pleased to Announce the Promotion of Justin Pollak to Partner, effective as of January 1, 2018

Since joining the firm as an associate in 2014, Justin has focused his practice on venture capital transactions. He represents both investors and emerging companies, particular in seed and early stage venture financings, across a broad range of industries, including fashion, fintech, social and digital media, e-commerce, enterprise software, network security and biotechnology. Justin also regularly advises on a broad range of corporate transactions, including mergers and acquisitions and serves as an “outside general counsel” to many of the firm’s emerging and growth-stage company clients. He earned his J.D. and M.B.A. from Emory University and his B.S. from Cornell University.

“Justin is a highly talented attorney whose commitment to client service truly demonstrates the firm’s values,” Managing Partner Alan Baldachin said. “His leadership and passion have meaningfully contributed to the success of the firm and our clients and will continue to do so into the future. We are very proud of Justin’s accomplishments and congratulate him on his new role.”

HBA is a corporate and commercial law firm in New York, NY focused on media, technology and fashion & lifestyle, with expertise in venture capital, mergers and acquisitions, litigation, real estate and intellectual property. The firm was founded by three former big law attorneys over 15 years ago and continues to grow today.

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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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NYU Stern and the CFDA

NYU’s Stern School of Business offers it’s MBA students the opportunity to work with emerging fashion companies through its’ CFDA Masters Workshop. Stern students are paired with designers to work on a variety of financial, marketing and other business-related projects.

Check out a short video on the program here featuring partner Douglas Hand, who is also the professor of the Fashion Law & Business course offered at both NYU School of Law & NYU Stern School of Business.

 

Lululemon Sues Under Armour For Design Patent Infringement Based on Sport Bra Strap Design

On July 7th, athletic apparel company Lululemon Athletica filed suit against competitor Under Armour, alleging that three models of Under Armour sport bras infringed on design patents held by Lululemon as well as Lululemon’s trade dress.  Specifically, Lululemon asserted that the interwoven strap design on Under Armour’s products closely resembled designs protected by patents Lululemon filed in 2014 and 2016, as well as a design first sold by Lululemon in 2011 as part of its Energy Bra model.

Design patents typically do not offer wide protection for fashion products. While relatively cheap to obtain compared to utility patents, design patents typically still cost several thousand dollars to register.  Furthermore, design patents can only be obtained if an item has been on sale for less than a year and fashion designers often do not want to commit to a registration until and unless a design demonstrates that it will be a core product line going forward.  Trade dress, on the other hand, does not require any formal filing with the United States Patent and Trademark Office (USPTO). However, those seeking trade dress protection must also prove that the design has no functional component, as well as prove that the item conveys a distinctive secondary meaning to consumers that would be jeopardized by the sale of imitations.

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