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A longer version of this blog post originally published in March 2023 online by Retail TouchPoints. Reproduced with permission. Further duplication is not permitted.

Retailers often face brand policing challenges on online resale platforms such as Wayfair, Overstock.com, and eBay. Third-party resellers account for a significant portion of sales on these websites, where they are able to reach a large number of US consumers, and problems arise daily, often relating to brand owners’ dissatisfaction with the resellers and their sales practices. How can trademark and copyright laws help?
Continue Reading Policing Your Brand On Online Marketplaces: A Brief IP Overview For Retailers

Branding is central to the sale of products and services for many retailers. In a case involving a whiskey bottle dog toy with important findings for retailers and brand protection, the Supreme Court vacated the Ninth Circuit’s rulings on trademark infringement and trademark dilution in Jack Daniel’s Properties, Inc. v. VIP Products LLC.
Continue Reading Supreme Court Chews Up And Spits “Bad Spaniels” Back to District Court

In a significant change to the European patent system that will impact patent prosecution and enforcement strategies in one of the world’s largest retail markets, the European Unified Patent Court begins operations and the European Patent with Unitary Effect will be available at the European Patent Office on June 1, 2023. …
Continue Reading The European Unitary Patent: Why Retailers Should Care

Trade dress is a sub-category of trademarks traditionally reserved for product packaging. However, it can also include product design itself if the design elements claimed are distinctive and allow the consumer to recognize a single source as the producer or seller of the goods. Well known product design cases include high heels with contrasting red soles, iconic electric guitar shapes, and the green color of night-time cold medicines. It is a high bar to clear, as asserting registrable trade dress is stating that consumers will recognize your product as coming from you—and only you—without even seeing your brand name. With this in mind, it should come as little shock that relatively few registrations are granted. …
Continue Reading Registers of the Lost Ark Bag Appeal: Cult Gaia’s Unsuccessful Trade Dress Application

The metaverse is a new way to engage with computers through artificial intelligence, widespread connectivity, augmented reality and virtual reality. This raises questions about protection of rights associated with property, including intellectual property and—particularly for retailers—IP rights concerning the provision of goods and services in a “virtual” world.
Continue Reading IP in the Metaverse: An Overview for Retailers in a New Landscape

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