In a recent case, the Federal Circuit found that, sometimes, threatening a patent infringement action, or entering extensive patent license negotiations prior to filing suit, with a company having a presence in a particular state could subject you to jurisdiction in that state, even if you are located elsewhere.
Continue Reading Forum Shopping: How A Retailer’s Patent-Related Communications May Impact Jurisdiction

Signed into law on December 27, 2020, the Trademark Modernization Act of 2020 (TMA) provides amendments to existing federal trademark law that will assist US retailers and other businesses with branding decisions. Congress passed the TMA as part of the COVID-19 relief and government-funding bill.
Continue Reading How Does the Trademark Modernization Act of 2020 Help You Protect Your Brand?

Nestled midway between Dallas and Austin, Waco, Texas, with a population of around 144,000, is home to the Texas Ranger Hall of Fame and Museum, the Dr. Pepper Museum, Baylor University, and Chip and Joanna Gaines’ Magnolia Market; and it now has one of the busiest courts in the nation for patent infringement cases.
Continue Reading Retailers in Texas Beware – Waco is Open for Business for Patent Cases

Your product development team spent years designing a product, working out every design detail until it is just right. Your company spent significant time and money marketing the product, shoring up a great reputation for the product and the company that stands behind it. Then, a copycat comes along with a knockoff and starts selling a product that looks eerily similar—or even identical—to yours.
Continue Reading Protecting Your Products Using Design Patents in the Era of Copycats

3M Company is a leading manufacturer of N95 respirators. According to 3M, medical workers and public-health professionals consider 3M-branded N95 respirators to be “the gold standard.” Not surprisingly, the COVID-19 pandemic spiked the demand for N95 respirators. 3M ramped up production of its N95 masks as a result, but did not increase the price. Other entities, however, have purportedly offered 3M N95 respirators at prices much higher than 3M’s list prices.
Continue Reading Can Trademark Law Combat Price Gouging? 3M is Testing Theories to Protect its Brand

Trade dress, which includes the total look of a product (size, shape, color) is registrable as a trademark if, like a trademark, it identifies the source of a product. Thanks to a recent decision, In re Forney Industries Inc., Appeal No. 2019-1073, by the US Federal Circuit Court of Appeals (Federal Circuit), it may now be easier for businesses to obtain federal trademark registration for some color-based product packaging trade dress.
Continue Reading Your Color-Based Product Packaging Mark Might Be Protectable Trade Dress

Trademarks allow businesses to protect brand names and logos used on their goods and/or services. Unlike other IP, rights in a registered trademark can last indefinitely as long as the mark is in continuous use and all the required maintenance documents are filed. Failure to file such documents results in the cancellation of the trademark registration. Once canceled, the mark can still be re-applied for by the original owner and, in certain instances, another enterprising business. Specifically, assuming the mark has been legally abandoned, the other enterprising business can file its own trademark registration application for the mark. A recent case from the Trademark Trial and Appeal Board (TTAB) illustrates how the original owner can still have standing to oppose another business’s registration of a mark that’s remained dormant for over a decade.
Continue Reading A Pulse Found in “Dead” Trademark Rights

As publicly traded retailers begin to prepare their annual reports and 2020 proxy statements, they should keep in mind a number of new and amended SEC disclosure items. As detailed in our recent client alert, hot topics for proxy statements include hedging policy disclosure, board diversity disclosure and overboarding of directors. In annual reports on Form 10-K, public retailers must consider new cover page requirements; new disclosure rules for material property, management’s discussion and analysis (MD&A) and exhibit filings; and most retailers will now disclose critical audit matters, or CAMS, as identified by their independent auditors.
Continue Reading Upcoming Changes to 2020 Proxy Statements and Annual Reports

Innovation and developments in technology bring both opportunities and challenges for retailers, and Hunton Andrews Kurth has a sophisticated understanding of these issues and how they affect retailers. On January 23, 2020, our cross-disciplinary retail team, composed of over 200 lawyers, released our annual Retail Industry Year in Review.
Continue Reading 2019 Retail Industry Year in Review