While the so-called “hard IP” gets a lot of publicity (think of all the articles you have read recently on patent trolls or patent reform), the softer side of intellectual property law is seeing a lot of activity as well. From the saga of the cancellation of the Washington Redskins trademark to a Supreme Court case that concerned the transmission of copyrighted materials over Aereo antennas, trademark and copyright laws have been in the spotlight quite a bit.
I recently sat down with Michael Allan, partner at Steptoe & Johnson LLP, to discuss trends in trademark law. The first topic Allan brought up was the increasing prominence of the International Trade Commission (ITC) as a venue for determining trademark and trade secret cases. “People think of the ITC primarily as a patent forum, but the commission has broad powers,” Allan explained. “The commission is tasked with the ability to grant exclusion orders to prevent unfair acts in the areas of patents, trade dress, trade secret and trademark infringement. Many don’t think of the ITC as an enforcement tool outside of the patent context.”
Another major trend that Allan sees is an increase in the boldness of infringers. This manifests in several ways. Many companies are trying to operate in a gray area, selling products, such as perfumes or apparel, “inspired by” a particular brand, under the auspices of nominative fair use. These companies, according to Allan, get as close to the line as they can without crossing it. “Some companies adopt logos, fonts, colors and trade elements to get people to buy imitation products, and they cross the line,” he says, noting that he has seen an uptick in this practice recently, as infringers have gotten more creative in trading on the goodwill of brand names under the guise of some sort of legality.