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.
Online Marketplace Trademark Enforcement Checklist: A Practical Checklist
This checklist turns online marketplace trademark enforcement into concrete tasks, organized in the order the work happens, for brand owners and for the sellers, platforms, landlords, and payment processors on the other side. It starts with the preparation that makes enforcement possible (registrations, platform enrollment, Customs recordation, authentication guides, and distribution terms) and then covers monitoring and evidence capture, sorting listings into counterfeit, gray market, altered, and lawfully resold goods before anything is reported, and test purchases with a documented chain of custody. The middle phases cover platform notices that will hold up later, escalation against repeat sellers, the written notices that build or defeat a contributory infringement claim under Inwood and Tiffany v. eBay, and demand letters to sellers who can be identified. The litigation phases cover Schedule A complaints, ex parte restraining orders and asset freezes, alternative service, expedited discovery, default judgments, and statutory damages under 15 U.S.C. § 1117(c). Separate sub-checklists address keyword advertising, sellers responding to takedowns and demands, and platforms and other intermediaries that receive notices. Red flags, an FAQ, and practical takeaways close the document.
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.
Generative AI Trade Secret Protection Checklist: A Practical Checklist
This checklist turns the trade secret risks of generative AI into specific, ordered tasks for in-house counsel, security leaders, and outside advisers. It runs through twelve phases: governance and scope, discovery of current AI use, identification and classification of secrets, vendor and tool approval, technical controls, the written policy, contracts, training and certification, protection of AI assets such as prompts and model weights, prompt-leakage incident response, onboarding and departures, and audit and litigation readiness. Each item cites the governing authority, chiefly the Defend Trade Secrets Act and the reasonable-measures case law, and adds a practical note where the task is commonly done wrong. Red-flag boxes mark the facts that most often undermine a later trade secret claim. A deadlines table, a short worked example, and a list of common failure points close the checklist.
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.
Doctrine of Equivalents Checklist: A Practical Checklist
This checklist converts a doctrine of equivalents dispute into phased, check-off tasks for patent owners and accused infringers. It begins with collecting the file history and sorting each limitation, then proceeds through estoppel and rebuttal, disclosure-dedication, vitiation, and ensnarement. Later phases cover pleading, contentions, discovery, expert reports, motions, trial, post-trial, and appeal, with a closing phase for patent prosecutors who can still fix the record. Each task names its governing authority, and red flags mark the points where these cases are most often lost. It is meant to be printed and used alongside the companion guide and toolkit.
Biometric Privacy Toolkit: Retention Policies, Consent Forms, and Vendor Terms
This toolkit provides working templates for a biometric privacy program and for the first weeks of a biometric privacy claim, each with its purpose, owner, timing, bracketed placeholders, and drafting commentary tied to the governing authority. The compliance templates are a biometric data inventory worksheet, a public retention and destruction policy, an employee notice and written release, a consumer notice and consent for app and in-store flows, a vendor biometric addendum, and a destruction certificate. The litigation templates are a biometric-specific litigation hold notice that addresses the conflict between preservation and BIPA's destruction duty, an insurance tender letter, and a litigation response memo outline that tracks removal, arbitration, exemptions, damages after the 2024 amendment and the Seventh Circuit's 2026 decision in Clay v. Union Pacific, and settlement. A running example follows a regional optical retailer with fingerprint time clocks and a virtual try-on feature through each template. The templates assume Illinois law as the baseline and flag additions for Texas, Colorado, California, and New York City.
The Right of Publicity and the First Amendment: Transformative Use, Newsworthiness, and the Limits of Owning a Persona
The right of publicity gives a person control over the commercial use of their name, likeness, and voice, and the First Amendment guarantees everyone else the freedom to write, film, draw, and joke about real people; this article explains where the two meet and who wins. It starts with Zacchini, the only Supreme Court decision on the subject, and then works through the four competing tests the lower courts use: the transformative use test of Comedy III and the video game cases, the Rogers test and what Jack Daniel's did to it, Missouri's predominant use test, and the ad hoc balancing of Cardtoons, ETW, and the fantasy sports decisions. It then covers the statutory newsworthiness and public affairs exemptions in California, New York, and other states, the docudrama cases from Sarver to de Havilland, the commercial speech line drawn in Jordan v. Jewel, copyright preemption, false endorsement as a parallel claim, Section 230, anti-SLAPP motions, and damages. Three worked examples (a streaming docudrama about a living CEO, a mobile game with lookalike athletes, and a brand's social media post congratulating a celebrity) show how the analysis runs in practice for both the creator and the person depicted. It closes with strategy for each side, common mistakes, an FAQ, and practical takeaways.
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.
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.
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.
Trademark Coexistence and Consent Agreements: How Rivals Share a Name and Persuade the USPTO
This article explains how two businesses that use the same or similar marks can agree to share a name, and why the USPTO and the courts usually respect those agreements. It traces the doctrine from In re E.I. du Pont de Nemours through In re N.A.D., Bongrain, In re Mastic, and In re Four Seasons Hotels to recent Trademark Trial and Appeal Board decisions that accepted or rejected consents, and it explains the difference between a "naked" consent and a "clothed" agreement. It then covers the limits: identifications of goods that do not match the private deal, geographic carve-outs that require a concurrent use proceeding, antitrust rules against dividing markets, naked licensing risk, and the effect on third parties. Separate sections address enforcement between the parties, assignment and successors, bankruptcy after Mission Product Holdings, global coexistence, and tax. An extended worked example follows two companies from a Section 2(d) refusal to a signed agreement and a later acquisition. Common mistakes, an FAQ, and practical takeaways close the article.
Trademark Declaration Accuracy Checklist: A Practical Checklist
This checklist is the pre-signature review for any sworn trademark filing with the USPTO. It covers checks common to every filing (owner, signer, signature mechanics, and record keeping), then gives separate phases for Section 1(a) applications, Section 1(b) and Section 44 applications, statements of use and amendments to allege use, Section 8 declarations, Section 15 declarations, Section 71 declarations, and foreign-domiciled filers. Each item names its authority, and red flags mark the errors most likely to lead to a fraud claim, an audit problem, or a USPTO sanction. A final phase covers what to do if a problem turns up after filing. It is written to be printed and used at the desk by a paralegal, lawyer, or business owner. The law and fees are stated as of 6 November 2026.