Office workers everywhere are familiar with height-adjustable desks. These desks allow workers to raise or lower their work surfaces, and often workers will use a height-adjustable desk to perform tasks while standing instead of sitting. Varidesk is one of the most prominent designers and distributors of height-adjustable desks. Like many US retailers that offer popular products, Varidesk observed knockoff copies for sale in the US from numerous foreign entities. Fortunately for Varidesk, its patent portfolio provided a way to defend its business.
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Design patents can be a useful way to complement an IP portfolio because they can protect the way a product looks instead of how it works. Many consumer products can be defined this way, either in conjunction with, or even in lieu of, utility patents. Where utility patents cover a technical innovation, design patents must claim “ornamental” designs and cannot cover a “primarily functional” design that is essential to the use of the covered product.
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Anyone who uses a mobile device knows there are times when hands-free is a necessity. Enter National Products, Inc., a US maker of RAM® Mounts for securely mounting electronic devices—including phones, tablets, laptops and radar detectors—in cars, trucks, bikes and boats, among other vehicles. Like many US retailers, National Products discovered knockoff copies of its own products for sale in the market. In particular, National Products identified several Chinese companies importing mounts similar to its RAM® products and selling them through third-party reseller websites.
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Social media can be a minefield of intellectual property issues. The hashtag, for example, began as a searching tool, but now has evolved into its own form of communication. And if a hashtag can include a trademark or otherwise represent a brand, when can you use someone else’s trademark in a hashtag?
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Recently, in Mission Product Holdings v. Tempnology LLC, the Supreme Court held that a trademark licensee may continue using a licensed trademark after its licensor files for bankruptcy and rejects the relevant license agreement. While a debtor-licensor may “reject” a trademark license agreement under Section 365 of the Bankruptcy Code, such rejection is only a breach of the agreement and does not allow the licensor to revoke the licensee’s rights.
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A federal court in Pennsylvania has held that Liberty Mutual must defend its insured, Hershey Creamery Company, in an intellectual property infringement lawsuit because the suit raises claims that potentially implicate coverage under the policies’ personal and advertising injury coverages. The court further found that the alleged wrongful conduct was not subject to the policies’ IP infringement exclusion.
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Nautilus Inc., which owns exercise brands like Nautilus and Bowflex, and ICON Health & Fitness, which owns NordicTrack among other exercise brands, have been battling over intellectual property for years. ICON recently upped the ante by bringing a complaint to the International Trade Commission, seeking to exclude all imported Bowflex exercise machines from entry into the United States.
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On January 17, 2019, Hunton Andrews Kurth’s retail industry team, composed of more than 200 lawyers across practices, released their annual Retail Industry Year in Review publication.
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The Ninth Circuit will decide whether Great Lakes Reinsurance must defend clothing company, In and Out, against a trademark infringement suit by Forever 21. The dispute focuses on exclusionary language in the general liability policy issued by Great Lakes to In and Out, which broadly bars coverage for claims stemming from violations of intellectual property rights, but which also excepts from the exclusion claims for copyright, trade dress and slogan infringement occurring in the company’s advertisements.
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