Intellectual Property Insights
Analysis and practical guides on intellectual property.
446 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.
False Advertising Claim Checklist: A Practical Checklist
False advertising disputes are decided in the first ninety days, and the checklist below is organized to fit that reality. It runs the sequence from capturing an advertisement before it changes, through characterizing the claim as literally or impliedly false, choosing among the demand letter, the self-regulatory forum, and litigation, moving for preliminary relief, and running the substantiation and survey discovery that decide the merits. Separate sections cover the defendant's response, the advertising review program that prevents claims, and the settlement terms worth negotiating. It covers the plaintiff's proof, the defendant's substantiation file, and the survey decision. Every item is written so that a "no" tells you what to do next.
Trademark Preliminary Injunctions After the Trademark Modernization Act: The Presumption of Irreparable Harm and the Delay Trap
This article explains how trademark preliminary injunctions work now that Congress has restored a rebuttable presumption of irreparable harm in 15 U.S.C. § 1116(a). It traces the presumption's fall after eBay and Herb Reed and its statutory return, then reads Nichino closely on what the presumption actually does under Rule 301. A full section covers the delay trap, with a table of cases from Citibank to Gilead showing which gaps were fatal and which were forgiven. The reader also gets the merits shortcuts that work, the evidence record, TRO and asset freeze rules, bond exposure, order scope after Abitron, what Starbucks v. McKinney adds, and appeal. Worked examples show the presumption bursting, a chronology going wrong, and a small defendant's response. Open questions are flagged throughout.
Bringing or Defending a False Advertising Claim: A Practical Guide
False advertising cases are decided in the first ninety days, which means the work that matters happens before and immediately after a complaint is filed. This guide walks through the sequence for both sides: capturing the advertisement before it changes, characterizing the claim as literally false or implied, deciding among a demand letter, a self-regulatory challenge, and litigation, moving for preliminary relief, running the survey and substantiation discovery that decide the merits, and evaluating remedies honestly. It includes a timeline, a division of labor, budget guidance, and the errors that most reliably lose an otherwise good case on either side. A worked dispute follows a competitor claim from demand letter through preliminary injunction. It also covers the NAD alternative and when it is the better forum.
Filing a USPTO Trademark Application Checklist: A Practical Checklist
A phase-by-phase checklist for preparing and filing a federal trademark application with the USPTO, current to the January 18, 2025 fee overhaul that retired the TEAS Plus/Standard tiers in favor of a single base application plus surcharges and moved filing into Trademark Center. It walks through clearance, register and basis selection, owner and domicile fields, goods-and-services drafting from the Trademark ID Manual to dodge surcharges, standard-character versus special-form drawings, specimens, the verified declaration, and post-filing docketing. WHY notes and trap warnings accompany each phase, with a common-mistakes list and primary authority. Educational, not legal advice; confirm current fees at USPTO.gov.
False Advertising Under the Lanham Act: Literal Falsity, Materiality, and Competitor Standing
Section 43(a)(1)(B) of the Lanham Act gives businesses a federal claim against competitors who lie in advertising, and it is one of the most useful and least understood tools in commercial litigation. This article explains the five elements of the claim, the crucial distinction between literal and implied falsity and what each requires in proof, and the doctrine of puffery that removes most sales talk from the statute's reach. It covers who may sue after the Supreme Court replaced the old standing tests with a zone-of-interests analysis, how false advertising claims interact with federal regulatory schemes, and the remedies that make these cases worth bringing. It closes with the self-regulatory and regulatory alternatives that resolve most advertising disputes without a courthouse.
Contributions to a Collective Work
A "contribution to a collective work" is an independently copyrightable piece—an article, photo, poem, cartoon, or chapter—that an author lets a publisher gather into a larger whole such as a magazine, anthology, journal, or website. Under 17 U.S.C. 201(c), the contributor keeps the copyright in their own piece, and absent a written transfer the publisher acquires only a narrow privilege to reproduce it as part of that particular collective work, a revision of it, or a later work in the same series. The Supreme Court's decision in New York Times Co. v. Tasini, 533 U.S. 483 (2001), held that loading freelance articles into searchable electronic databases that retrieve them as standalone items exceeds that privilege, while later cases such as Faulkner and the en banc Greenberg v. National Geographic held that context-preserving digital replicas of whole issues do not. This article explains the statutory definitions, the default rules that allocate rights, how Tasini and its progeny reshaped publishing, the work-made-for-hire doctrine, how to register contributions, and how termination and reversion can let authors recapture their work decades later. It is written for writers, editors, publishers, and the lawyers who advise them.
Domain Name Toolkit: UDRP Complaints, ACPA Pleadings, and Portfolio Management
This toolkit collects the documents a domain dispute practice actually produces, from the evidence log built in the first week through the portfolio register that prevents the next dispute. It includes a UDRP complaint skeleton organized around the three elements, an ACPA complaint outline with the nine bad faith factors mapped, a registrar abuse report for active fraud, a domain purchase agreement with the transfer mechanics that make or break a deal, and the contract clauses that stop former agencies and distributors from keeping names. Each template is annotated with its purpose, its owner, and the failure it prevents. Each template carries drafting notes on the elements a panel or a court actually decides. Adapt everything to the registrar, the registry, and the governing law.
Domain Name Dispute Checklist: A Practical Checklist
Domain disputes are won on preparation done before anything is filed and lost on a step skipped in the first week. This checklist runs the sequence: diagnosing which of five situations you actually face, establishing the two dates that decide most cases, building the evidentiary record before contact tips the registrant, choosing among the UDRP, the URS, federal litigation, and purchase, and prosecuting the chosen route. It includes a respondent-side section for registrants receiving a complaint, and a prevention section covering the portfolio hygiene that stops the next occurrence. It sequences the choice between a UDRP proceeding and an ACPA action before either is filed. Every item is written so that a "no" tells you what to do next.
Recovering a Domain Name: A Practical Guide
Recovering a domain name is a decision tree, not a single procedure, and the first branch is why the name is gone. This guide separates the five common situations—a squatter, a legitimate prior holder, a lapsed registration, a hijacked account, and a former partner or employee—because each has a different remedy and treating them alike produces expensive failures. It walks through the investigation that must precede any filing, the choice between the UDRP and federal litigation, the mechanics of drafting and prosecuting each, the negotiated purchase as an alternative, and the portfolio hygiene that prevents the next occurrence. It includes evidence checklists, a timeline, and the errors that most often defeat an otherwise strong claim.
Domain Name Disputes: Cybersquatting, the ACPA, and the UDRP
A domain name is a contract with a registrar that happens to function like a brand, and that mismatch produces a distinctive body of law. This article explains the two systems that resolve domain disputes—the federal Anticybersquatting Consumer Protection Act and the contractual Uniform Domain-Name Dispute-Resolution Policy—and why they exist side by side rather than one replacing the other. It covers the elements of each, the in rem procedure that lets a trademark owner sue a domain name itself, the bad faith factors that decide ACPA cases, and the recurring situations that are not cybersquatting at all. It closes with practical portfolio management and the trap of reverse domain name hijacking.
Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands
This toolkit collects the documents that publicity work actually produces: releases in the variants an organization needs, an endorsement agreement outline with the clauses that decide disputes, a standalone digital replica consent that should never be folded into a media grant, a rights inventory schema, and the demand and takedown materials used when a use turns out to be unauthorized. Each template is annotated with its purpose, its owner, and the failure it prevents. Because the underlying right is state law and varies substantially, the templates flag the points where jurisdiction-specific review is required rather than pretending to a uniform national standard. Each template carries drafting notes on scope, term, territory, and the digital replica provisions now appearing in state statutes. Adapt everything to the governing state law, which varies more here than in most areas.
Right of Publicity Clearance Checklist: A Practical Checklist
Publicity claims against ordinary businesses almost always trace to one of three failures: no release, an expired release, or a release whose scope did not cover the use. This checklist is built to catch all three before a campaign ships. It runs the clearance sequence from classifying the use through verifying releases, checking stock license restrictions, handling deceased individuals, addressing digital replicas as a separate consent, and applying escalation rules. Separate sections cover the individual's side of a licensing negotiation and the enforcement evaluation when an unauthorized use is discovered.