Intellectual Property Insights

Analysis and practical guides on intellectual property.

265 articles, checklists, and guides on intellectual property law, written by the attorneys at MC Law. Every piece is general information, not legal advice — for a specific matter, contact the firm.

Intellectual PropertyCopyright

Copyright Renewal and Termination Checklist: A Practical Checklist

For most of the twentieth century U.S. copyright ran on a two-term system, and a separate, non-waivable right lets authors and their heirs terminate old transfers and recapture rights decades later. This checklist serves two related tasks: determining whether a pre-1978 work is still protected or in the public domain (the renewal analysis) and exercising or preserving the termination-of-transfer rights under Sections 203 and 304. It walks through filing a renewal registration on Form RE, the automatic-renewal rule for 1964 to 1977 works, the foreign-restoration asterisk, identifying who holds the termination interest and the strict notice windows, and the derivative-works exception. Because deadlines here are unforgiving, treat this as an orientation and engage specialized counsel.

Casey Scott McKayJanuary 12, 20268 min read

Intellectual PropertyPatent Litigation

Claim Construction and Markman Hearings: How Courts Decide What a Patent Actually Covers

Most patent cases are not won at trial. They are won at claim construction, when a judge decides what the words of the patent mean and, in doing so, usually decides whether the accused product infringes and whether the patent survives. This article explains what patent claims are, why judges rather than juries construe them, and how the Supreme Court's decisions in Markman, Teva, and Nautilus set the framework courts still use. It walks through the hierarchy of evidence courts consult, the handful of interpretive moves that decide the overwhelming majority of disputes, and the procedural machinery of a modern Markman proceeding from term exchange through the hearing. It closes with the strategic questions that matter most: which terms to fight over, when a construction is worth an appeal, and what happens to a case after the order issues.

Casey Scott McKayJanuary 12, 202629 min read

Intellectual PropertyCopyright

Digital Millennium Copyright Act Safe Harbors for Online Service Providers

The DMCA's four safe harbors in 17 U.S.C. § 512 are the legal scaffolding that lets the user-generated internet exist. When an online service provider qualifies, it is shielded from monetary liability for copyright infringement committed by its users—but only if it meets strict threshold conditions and follows the notice-and-takedown choreography to the letter. This guide walks through all four safe harbors (conduit, caching, hosting, and linking), the gateway requirements every provider must satisfy (a registered agent and a reasonably implemented repeat-infringer policy), and the two knowledge standards—actual and "red flag"—that decide most cases. It covers the leading authorities, from Viacom v. YouTube and Capitol v. Vimeo to the litigation that shattered Cox Communications' safe harbor, and the § 512(f) misrepresentation claim that Lenz v. Universal turned into a real check on abusive takedowns. It closes with practical compliance guidance, an FAQ, and a clear line between § 512 and the very different anti-circumvention rules of § 1201.

Casey Scott McKayDecember 17, 202548 min read

Intellectual PropertyTrademark

Trademark Likelihood-of-Confusion Analysis: A Practical Checklist

Likelihood of confusion is the central question in nearly every trademark infringement dispute, and working it up correctly is a disciplined, factor-by-factor exercise rather than a gut check. This checklist walks you through identifying the controlling circuit's multifactor test, gathering the evidence each factor requires, weighing the factors holistically, and documenting a defensible conclusion—whether you are clearing a new mark, evaluating an enforcement target, or preparing an infringement claim or defense. It covers the Second Circuit's Polaroid factors, the Federal Circuit and TTAB's DuPont factors, and the Ninth Circuit's Sleekcraft factors, plus the recognized variants of confusion and the role of survey evidence. WHY notes and trap flags accompany each phase. Verify current law and any procedural deadlines, which vary by circuit and forum.

Casey Scott McKayDecember 13, 20259 min read

Intellectual PropertyTrademark

Intent-to-Use Trademark Applications: A Practical Guide

An intent-to-use application lets you stake a claim to a trademark before you have sold a single product, reserving nationwide rights as of your filing date while you finish building, branding, and going to market. This guide explains, in plain language for both lawyers and business owners, how the intent-to-use system works and why it is one of the most powerful tools in U.S. trademark practice. It covers the central payoff (a constructive-use priority date that can defeat someone who actually sells first), the bona fide intent requirement and the burden-shifting framework courts use to test it, the full lifecycle from filing through the Notice of Allowance to the Statement of Use, the exact timeline math of extensions, the anti-trafficking assignment bar, and the strategic uses and pitfalls. It closes with a worked launch scenario and concrete practice takeaways.

Casey Scott McKayDecember 13, 202537 min read

Intellectual PropertyCopyright

Copyright Notice: Form, Function, and Best Practices

A copyright notice is the familiar little line—© 2026 Acme Corp.—that tells the world who owns a creative work and when it was published. For works published in the United States after March 1, 1989, notice is optional, but for works published before that date it was mandatory, and getting it wrong could throw a work into the public domain. This article explains the three elements of a proper notice, the governing statutes at 17 U.S.C. §§ 401–406, the pre- and post-Berne Convention divide, and the way notice forecloses an innocent-infringement defense to preserve a copyright owner's statutory damages. It covers where notice goes on different kinds of works, how to handle derivative and collective works, the special rule for U.S. Government material, and the most common mistakes. It also covers the special rules for foreign works restored under the Uruguay Round Agreements Act and offers practical, modern best practices for websites, software, video, and merchandise. Whether you are a creator stamping your first photograph, a lawyer chasing the status of a 1970s film, or a judge sorting out whether an old paperback ever had protection at all, this is the working guide to copyright notice.

Casey Scott McKayDecember 2, 202550 min read

Intellectual PropertyPatent Litigation

Global Patent Wars: Lessons from High-Profile Case Studies

This long-form analysis examines the most consequential patent disputes of the modern era and distills the practical lessons each one offers to companies and counsel. It works through the Apple v. Samsung design patent war and the Supreme Court's Section 289 "article of manufacture" ruling, the Nokia-Qualcomm-Apple battles over standard-essential patents and FRAND licensing, the Huawei v. ZTE FRAND framework from the Court of Justice of the European Union, the Unwired Planet v. Huawei decision in which the UK Supreme Court set a global royalty rate, the smartphone non-practicing entity wars reshaped by eBay, inter partes review, Alice, and TC Heartland, biopharmaceutical patent cliffs such as the AbbVie Humira thicket, the Supreme Court's enablement ruling in Amgen v. Sanofi, and the CRISPR interference between the Broad Institute and the University of California. For each dispute the article explains what happened, the legal issues at stake, the outcome, and the strategic takeaway, using clearly labeled hypotheticals to make doctrine concrete. It is written so that judges, practitioners, and non-lawyers can all follow the analysis, and it situates each case within the broader practice of multi-jurisdictional patent strategy.

Casey Scott McKayDecember 1, 202551 min read

Intellectual PropertyTrademark

Tea Rose-Rectanus and the Geographic Scope of Common-Law Trademark Rights: A Practical Guide

The Tea Rose-Rectanus doctrine is the rule that explains how two unrelated businesses can lawfully own the same trademark in different parts of the country. Born from two Supreme Court decisions in the 1910s, it holds that a common-law trademark is not a nationwide right but a local one, anchored to the markets where the owner actually trades and builds a reputation—so a later adopter who innocently uses the same mark in a separate, remote market can acquire its own rights there. This deep-dive traces the doctrine's origins, dissects its two elements (good faith and remoteness), examines the modern circuit split over whether mere knowledge of a senior user destroys good faith (Stone Creek v. Omnia), and maps how federal registration overrides the doctrine going forward through constructive notice, constructive use under § 1057(c), and the frozen limited-area defense under § 1115(b)(5). It closes with a worked hypothetical and practical takeaways for both registrants and unregistered owners.

Casey Scott McKayNovember 21, 202536 min read

Intellectual PropertyTrademark

The Washington Redskins Trademark Troubles: Disparagement, Matal v. Tam, and the Aftermath

For a quarter century the federal registrations for the Washington NFL team's former name were the most famous trademarks in America that the government tried to cancel. This article traces the full arc: the Harjo and Blackhorse petitions before the Trademark Trial and Appeal Board, the cancellations under the Lanham Act's Section 2(a) disparagement bar, and the Fourth Circuit litigation in Pro-Football, Inc. v. Blackhorse. It explains how a wholly unrelated case about an Asian-American dance-rock band, Matal v. Tam (582 U.S. 218 (2017)), struck down the disparagement clause on First Amendment grounds and rescued the registrations, and how Iancu v. Brunetti (588 U.S. 388 (2019)) finished the job by invalidating the immoral-or-scandalous bar. It then turns to the surprising sequel, Vidal v. Elster (602 U.S. 286 (2024)), where the Court drew the outer limit of those rulings. Finally it covers what actually changed the name in 2020 and 2022 (it was not the law) and the lasting lessons for anyone weighing an edgy, provocative, or offensive brand. Plain-English throughout, balanced, and built for lawyers and curious non-lawyers alike.

Casey Scott McKayNovember 11, 202544 min read

Intellectual PropertyCopyright

Responding to a DMCA Takedown with a Counter-Notice: A Practical Checklist

A DMCA counter-notice is the system's built-in safety valve: a conforming counter-notification forces removed content back online unless the copyright owner sues within the statutory window. This checklist walks a user whose content was taken down through the honest self-assessment that should precede any counter-notice, the procedural and substantive review of the underlying takedown, the five statutory elements of Section 512(g)(3) including the binding consent to federal jurisdiction, and the 10-to-14-business-day restoration clock. It flags when a counter-notice is the right move and when it is a trap, the fair-use cautions, and the Section 512(f) exposure for a knowing false counter-notice. Get advice before filing on close calls.

Casey Scott McKayNovember 4, 20256 min read

Intellectual PropertyTrademark Litigation

Petitioning to Cancel a Trademark Registration: A Practical Checklist

A federal trademark registration is powerful but not bulletproof—it can be cancelled when it should never have issued or should no longer stand. This checklist guides a challenger and its counsel through petitioning to cancel a registration before the Trademark Trial and Appeal Board: confirming the right venue, checking the registration's age and incontestability status, matching the available grounds to the timing, confirming entitlement to a statutory cause of action, pleading and filing through ESTTA, and prosecuting the proceeding. It maps the within-five-years grounds against the anytime grounds, flags the demanding post-In re Bose fraud standard, and notes the cheaper Trademark Modernization Act expungement and reexamination routes for pure nonuse. WHY notes and traps accompany each phase. Verify current TBMP guidance, 37 C.F.R. Part 2, and fees before filing.

Casey Scott McKayNovember 1, 20258 min read

Intellectual PropertyPatent

Conducting Freedom-to-Operate Analysis for New Products

A company that launches a product infringing someone else's valid patent risks injunctions, ruinous damages, and trebled awards for willful infringement—so the responsible course is to assess that risk before launch through freedom-to-operate (FTO) analysis. This guide walks the entire process in plain language, following a fictional startup as it clears a mobile-payments app: distinguishing FTO from patentability, defining the product's technical scope, searching the patent landscape, triaging the results, reading and construing claims under Phillips and Markman, building claim charts, assessing literal infringement and the doctrine of equivalents, and weighing validity defenses under Sections 101, 102, 103, and 112. It explains how willfulness law after Halo and Section 298 make opinions of counsel valuable but optional, why a non-infringement opinion usually beats an invalidity opinion, and how privilege waiver, design-arounds, licensing, and patent-assertion entities reshape the calculus. It closes with how to document the work and communicate risk to decision-makers as a calibrated judgment rather than a false promise of safety.

Casey Scott McKayOctober 17, 202545 min read