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.
The Right to Repair Movement: IP Implications for Manufacturers and Consumers
The right to repair movement has crossed from advocacy into enforceable law, reshaping how manufacturers may use copyright, the DMCA, patents, trademarks, and trade secrets to control products after the sale. This article maps the landscape as of mid-2026: at least eight U.S. states with enacted electronics-repair statutes, the new wave of parts-pairing bans, the EU's Right to Repair Directive, the FTC's antitrust suit against John Deere, and the Copyright Office's expanding triennial DMCA exemptions. It explains each intellectual-property lever manufacturers deploy to restrict repair and exactly where the law now blunts it, anchoring the doctrine in primary authority such as Impression Products v. Lexmark, Chamberlain v. Skylink, and Automotive Body Parts Ass'n v. Ford. To keep the analysis concrete, it follows a hypothetical manufacturer and a hypothetical independent shop through the compliance questions the new regime forces. Written for manufacturers, independent repairers, aftermarket suppliers, and the counsel advising them.
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.
Copyright in AI-Assisted Works: Human Authorship, Thaler v. Perlmutter, and the Copyright Office Guidance
Generative AI has put a nineteenth-century question back on the table: what does it take to be an "author"? This article explains the human-authorship requirement from Burrow-Giles and Feist through Naruto, Thaler v. Perlmutter (the 2023 district court decision and the D.C. Circuit's 2025 affirmance), and the Copyright Office's March 2023 registration guidance and January 2025 Part 2 report. It walks through the Zarya of the Dawn and Theatre D'opera Spatial decisions to show what "sufficient human authorship" looks like in practice, why prompts alone have not been enough, and how selection, arrangement, and modification of AI output can be claimed. It then turns to the mechanics and risks of registration (disclaimers, the duty of candor, Unicolors and Section 411(b), and what happens when a registration is later limited), ownership by contract (platform terms, employment, work made for hire, commissions), trade secret protection for prompts and workflows, and the sharply different rules in the UK, the EU, and China. Worked examples follow a graphic novelist, a game studio, and a marketing agency, and the article closes by separating what is settled from what is still open as of March 2026.
The Post-Mortem Right of Publicity: Who Controls a Deceased Person's Name, Image, and Voice
This article explains whether a person's right to control the commercial use of their name, image, voice, and likeness survives death, who owns it afterward, and what it does and does not allow heirs to stop. It traces the doctrine from the Bela Lugosi and Martin Luther King Jr. cases through the statutes that California, Tennessee, Indiana, Washington, and New York enacted in response, and it maps the state patchwork of durations, registration rules, and domicile requirements. The center of the analysis is choice of law: courts usually ask where the person was domiciled at death, which is why Marilyn Monroe's heirs, Princess Diana's estate, and Albert Einstein's beneficiary lost claims that looked valuable. The article then covers the limits that protect biographies, films, and art, the new digital replica rules for AI voices and synthetic performances, federal fallbacks under the Lanham Act, and the estate tax consequences shown by the Michael Jackson valuation case. It closes with an extended worked example, common mistakes, an FAQ, and practical takeaways for estates, users, and planners.
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.
Trade Secret Defense Toolkit: Independent Development Records, Public Domain Charts, and Bad Faith Fee Motions
This toolkit gives an accused company, employee, and their counsel working papers for defending a trade secret claim, ready to adapt with bracketed placeholders. It includes a defense decision matrix, letter responses to a demand, a quarantine notice, and a complete independent development record with a feature ledger, provenance sheets, evidence anchors, a repository collection runbook, and a declaration skeleton. It also provides a public domain mapping chart, a combination worksheet, a similarity triage chart, and a limitations worksheet. For motion practice, there is an identification motion outline with proposed orders, a clean team protocol, Rule 30(b)(6) topics and examination modules, a defect letter, and a bad-faith fee motion outline. Every form states its purpose, owner, and timing, followed by drafting notes tied to authority.
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.
Removing Yourself From People-Search Sites and Evaluating a Publicity Claim: A Practical Guide
This guide takes someone who has just found their name, photo, or home address on a people-search site through what to do, in order. It starts with a triage decision among safety, removal, and a possible claim, then covers evidence capture, site opt-outs, California's DROP platform and other deletion rights, upstream sources, and re-checking. A dedicated section addresses survivors of domestic violence, judges, prosecutors, and police officers, including address confidentiality programs and Daniel's Law notices after the 2026 decisions in New Jersey and the Fourth Circuit. A second part explains how to evaluate a publicity or Fair Credit Reporting Act claim honestly, including who saw the page, deadlines, arbitration traps, and what a claim is worth. A final part gives operators and sales-intelligence vendors a sequence of risk controls and litigation decisions. Sample language, trade-off tables, worked hypotheticals, and a list of common mistakes are included.
Copyright Claim Timeliness Checklist: A Practical Checklist
This checklist turns a copyright limitations question into phased, check-off tasks that fit on a desk. It starts with the forum's accrual rule and claim classification, then works through infringement accrual, online and software acts, ownership repudiation, tolling, and the damages window. Separate phases cover the plaintiff's filing decisions, the defendant's response, motions, trial, and appellate preservation. Each task names its authority, and red flags mark the traps most likely to end a claim or waste a defense. It works for lawyers and for in-house teams doing a first pass.
Acquired Distinctiveness and Genericness Evidence Checklist: A Practical Checklist
This checklist converts the law of acquired distinctiveness and genericness into concrete evidence tasks for both sides of a USPTO refusal, a TTAB proceeding, or a federal lawsuit. It begins by fixing the question, the forum, the burden, the relevant date, the genus, and the relevant public, because evidence aimed at the wrong question or the wrong date proves nothing. It then works through each category of proof the courts weigh under the Converse factors (use and exclusivity, look-for advertising, sales in context, unsolicited media, copying, purchaser declarations, and surveys) and through the genericness record of dictionaries, media and trade usage, competitor usage, the owner's own usage, and the policing file. Separate phases cover product designs, packaging, and colors, the risks of signing a five-year statement, and the rules for getting each exhibit admitted at the USPTO, before the Board, and in court. Every item carries a short note with the controlling authority, and the checklist closes with red flags, an FAQ, and practical takeaways.
International Data Transfers After Schrems II: Standard Contractual Clauses and Transfer Impact Assessments
The digital economy runs on cross-border data flows, but for any organization touched by European data protection law those flows carry real legal and financial risk after Schrems II. This article maps the post-Schrems II architecture for moving personal data out of the EEA: the EU-U.S. Data Privacy Framework and the Latombe litigation now testing it on appeal; the 2021 modular Standard Contractual Clauses and the Transfer Impact Assessment that Schrems II made mandatory; technical, organizational, and contractual supplementary measures and their limits; Binding Corporate Rules; and the narrow Article 49 derogations. It covers the parallel UK regime, including the December 2025 adequacy renewal through 2031, reviews the enforcement record that gives these rules teeth, and lays out a phased compliance program with a maturity model. The throughline: this framework demands genuine legal analysis rather than contractual box-ticking, and some transfers will not survive that analysis.
Managing and Licensing a Deceased Person's Publicity Rights: A Practical Guide for Estates
This guide takes an executor, trustee, or family member step by step through managing a deceased person's name, image, voice, and likeness as an estate asset. It begins with the decisions to make before acting, then covers establishing and documenting domicile at death, mapping which states' laws protect the persona, building an inventory of identity assets and existing contracts, clearing title through probate, and registering claims in California and New York. Later steps cover building a trademark portfolio, choosing a licensing structure and agency, drafting license terms, adopting a written digital replica policy for AI voices and likenesses, running an enforcement program that separates commercial misuse from protected expression, and valuing the rights for estate tax. A timeline and cost table, a worked example following a fictional celebrity chef's estate, common mistakes, and an FAQ round out the guide. It also notes what users and licensees on the other side of the table should expect at each step.