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 Overview

Copyright is the body of law that protects original works of authorship—books, songs, code, photographs, films, and more—from the instant they are fixed in a tangible medium. This overview is the hub for everything copyright at mclaw.io: it explains what copyright covers and what it pointedly does not (the idea-expression line of Baker v. Selden and the originality floor of Feist), the six exclusive rights, who counts as an author, how long protection lasts, and how rights are transferred and clawed back. It walks through fair use as reshaped by Google v. Oracle and Warhol v. Goldsmith, the registration system and the Supreme Court's Fourth Estate rule, infringement and remedies, the DMCA, and the international picture under the Berne Convention. Worked hypotheticals make the doctrine concrete, and generous cross-links point you to deeper articles on registration, the DMCA, fair use, and more. It is a map of the whole territory, written so a judge, a lawyer, and a curious creator can all follow it.

Casey Scott McKayMay 29, 202545 min read

Intellectual PropertyTrademark

Trademark FAQs: Frequently Asked Questions About Trademarks

A plain-English, consumer-friendly question-and-answer guide to United States trademark law for founders, small businesses, creators, and the merely curious. It explains what a trademark is and is not, whether you need to register, the difference between the TM and circle-R symbols, how long registration takes and what it costs, what a likelihood-of-confusion refusal means, and how to keep a registration alive for as long as you use it. It distinguishes trademarks from copyrights and patents, covers intent-to-use applications, common-law rights, dilution and the fair-use defenses, and international protection through the Madrid Protocol, and demystifies the dreaded Office Action and the Sections 8, 9, and 15 maintenance filings. Throughout, it cites the Lanham Act and leading cases and points to deeper mclaw.io guides so you can go as far down the rabbit hole as your situation requires. This article is general information, not legal advice.

Casey Scott McKayMay 16, 202550 min read

Intellectual PropertyCopyright

How to Register a Copyright with the U.S. Copyright Office

Copyright protection arises automatically when a work is fixed, but registration is what converts that protection into something an owner can actually enforce. This guide walks creators and their advisers through the complete registration process: confirming ownership, choosing the right application type, preparing a compliant deposit, completing the eCO application without the errors that trigger delays, and timing the filing to preserve statutory damages and attorney's fees. It anchors each step in primary authority, including Fourth Estate v. Wall-Street.com on the registration prerequisite to suit and Unicolors v. H&M on the knowledge required to void a registration for inaccuracy. It covers special situations by work type, complex authorship including works made for hire and joint works, the Copyright Claims Board small-claims tribunal, and the Copyright Office's evolving position on works created with artificial intelligence. Current fees and a pending fee proposal are noted so filers can budget accurately.

Casey Scott McKayMay 12, 202545 min read

Intellectual PropertyPatent and Trademark

Design Patents vs. Trade Dress: Two Ways to Protect How a Product Looks

A product's appearance can be protected two very different ways: a design patent, which gives a 15-year monopoly on an ornamental look the moment it issues, and trade dress, which protects an appearance that consumers have come to recognize as a brand signal and can last forever. This accessible guide compares the two regimes side by side--what each protects, how rights arise, how long they last, what they cost, how functionality bars each one, how infringement is proven, and what remedies are available. It explains the landmark cases every practitioner should know, including Wal-Mart v. Samara, TrafFix, Qualitex, Two Pesos, Egyptian Goddess, and Samsung v. Apple, and shows how the two regimes can be layered to give a product both early-term and long-term protection. A running sneaker hypothetical ties the doctrine together, and a closing FAQ answers the questions clients ask most. For the deeper case-law treatment of the patent-versus-trade-dress conflict for product configurations, this guide cross-links a companion analysis.

Casey Scott McKayApril 21, 202535 min read

Intellectual PropertyTrade Secret

Trade Secret Misappropriation Litigation Under the Defend Trade Secrets Act: A Practical Guide

Before 2016, a company whose engineer walked out with the source code had to sue in state court under a patchwork of state trade secret statutes, or find a federal hook. The Defend Trade Secrets Act created a federal civil cause of action for misappropriation of trade secrets related to a product or service used in interstate commerce, and with it a federal forum, nationwide service, and an extraordinary ex parte civil seizure remedy. This guide covers the entire life cycle of a DTSA case. It explains what qualifies as a trade secret and why reasonable measures to maintain secrecy is where most cases are actually decided, how misappropriation and improper means are defined, and how the DTSA relates to state law under the Uniform Trade Secrets Act, which it does not preempt. It works through the emergency phase, including temporary restraining orders, expedited discovery, forensic imaging protocols, and the rarely used and frequently misunderstood seizure provision of section 1836(b)(2). It covers the trade secret identification fight, the inevitable disclosure doctrine and its state-by-state divergence, remedies including exemplary damages and attorney fees, the whistleblower immunity of section 1833(b) and the notice requirement that conditions enhanced remedies, and the criminal overlay of the Economic Espionage Act. It closes with strategy for both sides, a worked example, an FAQ, and related reading.

Casey Scott McKayApril 9, 202528 min read

Intellectual PropertyTrade Secret

Building a Trade Secret Protection Program Checklist: A Practical Checklist

This checklist walks a company through standing up a trade secret protection program that satisfies the "reasonable measures" requirement at the heart of the Defend Trade Secrets Act (18 U.S.C. §§ 1836-1839) and the Uniform Trade Secrets Act. It is organized into phases: inventorying and classifying confidential information, building physical, technical, and administrative security layers, layering contracts on top of the statutes (including the easily-missed Section 1833(b) whistleblower-immunity notice), training the workforce, and keeping the program alive through audits. Each phase pairs actionable checkboxes with the reasons behind them and the traps that sink trade secret claims. The goal is a documented, defensible record that converts valuable information into a legally protectable asset before anyone tries to take it.

Casey Scott McKayApril 9, 202511 min read

Intellectual PropertyTrademark Litigation

Trademark Cancellation in Federal Litigation: A Practical Guide

A federal trademark registration is powerful but not bulletproof—it can be cancelled, and the register corrected, when the registration should never have issued or should no longer stand. This guide explains, in plain language for lawyers and business owners alike, how cancellation works, with a focus on cancellation inside federal litigation under Section 37 of the Lanham Act. It compares the available venues—the Trademark Trial and Appeal Board, the district court, and the USPTO's newer ex parte proceedings—maps the grounds for cancellation and how incontestability narrows them, and works through the issues that decide real cases: who is entitled to bring the claim after Lexmark, the demanding fraud-on-the-USPTO standard after In re Bose, cancellation for nonuse and abandonment against the famously low use-in-commerce threshold, genericness and functionality, intent-to-use defects, and the consequences of a "primarily merely a surname" finding. It addresses whether cancellation can be won on summary judgment, the preclusive reach of TTAB decisions after B&B Hardware, the district court's power to rectify the register, and closes with a worked example and practical takeaways for both sides.

Casey Scott McKayMarch 20, 202543 min read

Intellectual PropertyCopyright

Fair Use Analysis Checklist: A Practical Checklist

Fair use is an affirmative defense you raise after being sued, which means the time to analyze it is before you copy. This checklist walks the analysis in the order courts actually apply it, starting with the threshold questions most people skip: whether the material is protected at all, and whether a specific statutory exemption applies before you reach section 107. It then works through each of the four factors with the questions that decide them, incorporating the reframing of the first factor in Warhol v. Goldsmith, which asks about the specific use rather than the new work as a whole. Later phases cover design mitigations that improve every factor, documentation and privilege, the decision whether to license anyway, and what to do if a demand letter arrives. Each phase is paired with the reason it matters and the primary authority behind it.

Casey Scott McKayMarch 12, 202512 min read

Intellectual PropertyPatent

Responding to Patent Office Actions: Strategies for Overcoming Rejections

An office action is not a rejection of you--it is an invitation to negotiate, and the patent system is built to give applicants the second, third, and fourth word. This guide teaches you to read an office action the way an examiner reads your claims: by statutory basis (anticipation under Section 102, obviousness under Section 103, eligibility under Section 101, and the disclosure and clarity demands of Section 112), and then to choose among argument, amendment, declaration evidence, the examiner interview, and the appeal. It covers the full procedural toolkit through 2026--restriction and rejoinder practice, Rule 1.130 declarations that knock out prior art, requests for continued examination, after-final practice in a world without AFCP 2.0, and the complete appeal track to the Patent Trial and Appeal Board and beyond--with worked examples, an annotated sample response, and the 2025 fee changes that reshaped post-final strategy. The aim is to turn rejections into granted patents whose claims are still worth owning. Written for patent attorneys handling their first prosecution, inventors trying to understand what their counsel is doing, and in-house professionals stewarding a portfolio.

Casey Scott McKayMarch 7, 202563 min read

Intellectual PropertyCopyright

The DMCA Anti-Circumvention Provisions: Section 1201, Digital Locks, and the Triennial Exemptions

Section 1201 of the Copyright Act makes it unlawful to break a digital lock on a copyrighted work, and unlawful to sell tools that do the breaking, even when the underlying use would be perfectly lawful. That decoupling of circumvention from infringement is what makes section 1201 both powerful and controversial, and it catches security researchers, repair shops, tinkerers, and competitors far more often than it catches pirates. This article explains the structure of the statute, the difference between access controls and copy controls and why it matters, the two trafficking bans, the seven permanent exemptions, and the triennial rulemaking through which the Librarian of Congress grants temporary exemptions for uses like jailbreaking phones, repairing tractors, and preserving video games. It works through the leading appellate decisions, including Corley, Chamberlain, Lexmark, and MDY v. Blizzard, and explains the circuit split over whether a section 1201 claim requires a nexus to infringement. It closes with compliance guidance for device makers, software vendors, researchers, and repair businesses, plus a worked example, an FAQ, and related reading.

Casey Scott McKayFebruary 7, 202528 min read

Intellectual PropertyCopyright

Copyright Registration: A Comprehensive Guide

Copyright protection is automatic the instant you fix an original work in a tangible form, yet registration with the U.S. Copyright Office unlocks the powerful remedies that make copyright worth owning. This comprehensive guide explains why registration matters after the Supreme Court's decision in Fourth Estate, how statutory damages and attorney's fees under 17 U.S.C. 412 turn entirely on timing, and how the certificate's prima facie presumption under 17 U.S.C. 410(c) shifts the burden of proof in court. It walks step by step through the electronic registration system, the basic, group, supplementary, and renewal application types, the deposit, best-edition, and mandatory-deposit rules, fees, examination and refusals, the two-tier appeal, and specialized tools like preregistration, special handling, and customs recordation. Worked hypotheticals and a practical FAQ make the system understandable for creators, businesses, and lawyers alike. Read it as the master hub and follow the cross-links to the specialized copyright guides.

Casey Scott McKayFebruary 4, 202548 min read

Intellectual PropertyCopyright

Copyright Licensing and Clearance Toolkit: Permissions, Rights, and Chain of Title

Clearance is the practice of knowing, before publication, exactly who owns each element of a work and exactly what you are permitted to do with it. This toolkit builds that practice. It starts with the inventory step that most projects skip, which is listing every separately owned element in a work, then works through identifying the owner and confirming chain of title, determining whether a license is needed at all, negotiating the license terms that actually matter, and documenting the result in a form that survives a distributor audit or an insurance underwriter. Separate stages cover the media-specific traps in music, photography, film, software, and user-generated content, the special problems of orphan works and public domain determinations, and what to do when clearance fails and the choice is between redesigning, relying on fair use, or accepting the risk.

Casey Scott McKayFebruary 3, 202514 min read