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.
Responding to a Trademark Cease-and-Desist Letter Checklist: A Practical Checklist
A calm, strategic checklist for what to do when a trademark cease-and-desist letter lands in your inbox: the first-72-hours housekeeping (conflicts check, no off-the-cuff reply, check PACER for an actual suit, holding letter, information request, insurer notice, litigation hold), decoding the letter, sizing up the sender and yourself using the free public record, the likelihood-of-confusion analysis, the defenses toolbox, the realistic menu of responses from rebrand to preemptive declaratory judgment, and the landmines. WHY notes, trap warnings, a common-mistakes list, and primary authority are included. Educational, not legal advice. The through-line is that the first written response sets the tone and the record for everything that follows, so it is worth the two days it takes to get right.
Negotiating a Trademark Coexistence Agreement: A Practical Guide
This guide walks both sides of a trademark conflict, the party that needs permission and the party asked to give it, through negotiating a coexistence agreement from first contact to signed document and USPTO filing. It begins with the threshold decisions: whether coexistence is realistic, what each side's alternatives are, and which clocks are running at the USPTO, the Trademark Trial and Appeal Board, or in court. Thirteen numbered steps then cover mapping rights, valuing the litigation alternative, opening talks under Rule 408, building a term sheet, negotiating field-of-use, presentation, channel, and territorial terms, screening for antitrust and naked licensing risk, protective covenants, duration and successors, drafting a consent the USPTO will accept, closing and filing, and administering the deal afterward. Each step states what to do, why, the governing authority, pitfalls, timing, and cost. A timeline and cost table, a worked example in which a scheduling-software company settles an opposition brought by a chain of physical therapy clinics, common mistakes, an FAQ, and takeaways close the guide.
NFT Marketplaces and Secondary Sale Royalties: Smart Contracts, Copyright, and Contractual Expectations
NFTs promised artists something the traditional art market never delivered: an automatic royalty on every resale, enforced forever by code. The promise collapsed when marketplaces made royalties optional in 2023, and this article explains why—and what creators can actually do now. It separates the token from the underlying copyright (17 U.S.C. § 202), traces why U.S. law supplies no resale-royalty right (the first-sale doctrine of § 109, the failed California Resale Royalties Act, VARA's narrow reach), and works through the contract theories that founder on privity. It analyzes the two landmark NFT decisions—Hermès International v. Rothschild (the MetaBirkins verdict) and Yuga Labs v. Ripps—to show how trademark, not royalty law, has done the real doctrinal work, and it weighs the Howey securities risk that aggressive royalty marketing invites. It closes with concrete, drafting-level guidance for creators and a detailed FAQ. The throughline: code can execute, but code is not law.
Copyright in Software Interfaces After Google v. Oracle: APIs, Compatibility, and Reverse Engineering
This article explains how United States law treats the copying of software interfaces, from function names and command languages to file formats and protocols, after the Supreme Court's 2021 decision in Google LLC v. Oracle America. It traces the doctrine from Baker v. Selden and the 1980 software amendments through Whelan, Altai, Lotus v. Borland, and the reverse-engineering fair use cases, then walks through each stage of the Oracle litigation and what the Supreme Court did and did not decide. It covers the developments since 2021, including SAS Institute v. World Programming and the Ninth Circuit's treatment of interoperable add-on code, and the walls outside copyright that now matter as much as copyright itself: license terms, the DMCA's anti-circumvention rules, the Computer Fraud and Abuse Act, trade secret law, and patents. It explains why clean-room development still works and where it does not, and how AI coding assistants complicate the picture. An extended worked example, a table of open questions, common mistakes, an FAQ, and practical takeaways for both implementers and interface owners close the article.
False Endorsement Under the Lanham Act: Celebrities, Models, Sound-Alikes, and the Right of Publicity's Federal Cousin
A strip club posts a model's photo, a car ad hires a sound-alike, a video game renders a retired star, an AI voice sells supplements, and each person reaches for the same federal statute. This article explains how Section 43(a)(1)(A) of the Lanham Act came to protect human identity, why the claim turns on consumer confusion and recognizability, and how it differs from the state right of publicity. It reads the leading cases closely, from Allen and Waits through Electra, Souza, Brown, and Hara, and explains what Jack Daniel's left of the Rogers defense. It covers Lexmark, Dastar, nominative fair use, remedies, and insurance. It then applies the doctrine to AI voices and digital replicas, including Lehrman v. Lovo, the FTC's endorsement and testimonial rules, and the unfinished NO FAKES Act. Worked hypotheticals show how the same facts come out differently depending on who is recognized, by whom, and in what kind of work.
False Endorsement Clearance and Claim Checklist: A Practical Checklist
This checklist turns false endorsement risk into check-off tasks for two moments, before an identity goes into an ad or a work, and after someone complains. Early phases classify the use, identify every recognizable person, paper consent that actually runs to the user, and handle sound-alikes, AI voices, and FTC endorsement rules. Later phases cover launch records, the first week after a demand letter, evaluating the claim, and claimant intake. A final phase lists litigation tasks for both sides, including Rogers motions, survey challenges, and damages proof. Each item names its authority and is short enough to use at a desk.
Trademark Registration Toolkit: A Roadmap from Brand Idea to Federal Registration and Maintenance
This toolkit is a high-level roadmap and curated library guide for taking a brand from an idea all the way to a federal trademark registration and through the maintenance that keeps it alive. It walks every stage in order—mark selection, clearance, choosing a filing basis, preparing and filing the application, examination and office actions, publication and opposition, registration, post-registration maintenance, and enforcement—and at each stage points to mclaw.io's articles and step-by-step checklists plus the controlling statutes, rules, and USPTO resources. It reflects the post-January 2025 USPTO fee and filing changes, including the single base application fee with surcharges, the cloud-based Trademark Search, and Trademark Center filing. Use it to orient yourself in the field and to find the right detailed resource for the task in front of you. Fees and deadlines change, so verify current amounts at the official USPTO site before relying on any number here.
Copyright Infringement Claims Against Generative AI: The New York Times, Getty, and What Comes Next
Generative AI has triggered what may become the most consequential copyright litigation in decades, as publishers, photographers, authors, music rightsholders, and film studios sue the companies whose models were trained on their works. This article delivers the definitive, current-as-of-mid-2026 account of that fight: the first wave of merits rulings in Thomson Reuters v. ROSS, Bartz v. Anthropic, and Kadrey v. Meta; the record $1.5 billion Bartz settlement; the Getty UK judgment; and Germany's landmark GEMA v. OpenAI decision. It explains every legal theory in play—direct and secondary infringement, the four-factor fair use test as courts are actually applying it after Warhol v. Goldsmith, the intermediate-copying line that runs from Sega to Google Books, derivative-works and DMCA Section 1202 claims, and substantial similarity on the output side. It distinguishes the input (training) question from the output (memorization) question, surveys the emerging licensing market and the EU's divergent opt-out regime, and maps the realistic end-states. Written for content owners, AI developers, and the counsel advising both.
Auditing a Trademark Filing for Fraud Risk and Defending a Fraud Claim: A Practical Guide
This guide walks through what to do before a trademark declaration is signed, what to do when an audit turns up a problem, and how to plead or defend a fraud claim if a dispute arrives. It gives a step-by-step use audit that works good by good, with special attention to software, licensed use, discontinued lines, and specimens. It compares the correction tools (application amendments, division, Section 7 deletions, Section 15 withdrawal, surrender, and refiling) by timing, cost, and evidentiary effect, including the traps that can turn a late deletion into a judgment. For challengers, it covers the decision whether to plead fraud at all, the Rule 9(b) and Bose pleading standard, sample language, and forum choice. For defendants, it covers the first thirty days, motions, signer preparation, privilege, and fallback positions on the remedy. Fees reflect the USPTO schedule last revised 1 November 2026, and the law is stated as of 6 November 2026.
AI-Assisted Work Copyright Registration Checklist: A Practical Checklist
This checklist turns the Copyright Office's rules for works containing AI-generated material into a sequence of concrete tasks for creators, in-house teams, and outside counsel. It covers confirming that a human authored something registrable, building a contribution record, sorting claimable material from material that must be excluded, settling authorship and ownership, choosing the right application and filing date, completing each field of the Standard Application, preparing the deposit, and answering examiner questions. Later parts address refusals and reconsideration, correcting earlier registrations that did not disclose AI material, protecting and enforcing the work once the certificate issues, and auditing an opponent's AI-assisted registration in litigation. Each item carries a short note on why it matters and the governing statute, regulation, case, or Copyright Office guidance. The checklist reflects the law and Office practice as of October 2024, including the March 2023 registration guidance and the 2023 district court decision in Thaler v. Perlmutter.
Patent Ownership, Assignments, and Standing: Chain-of-Title Problems That Sink Cases
A patent is only as enforceable as its chain of title, and the most expensive discovery in patent litigation is that the plaintiff does not own what it is asserting. This article explains who owns an invention at the moment of conception, why inventorship and ownership are different questions with different consequences, and how the Supreme Court's decision in Stanford v. Roche confirmed that even federally funded inventions vest first in the inventor. It works through assignment drafting, including the decisive difference between a present assignment and a mere promise to assign that the Federal Circuit drew in FilmTec, the treatment of future inventions, and state statutes that limit what an employer may claim. It then addresses standing: who may sue, what a patentee must hold to bring an action alone, when an exclusive licensee may sue in its own name, and why the Federal Circuit reframed much of this as a statutory rather than jurisdictional question in Lone Star Silicon. Sections on correction of inventorship, recordation and bona fide purchasers, security interests, government rights under Bayh-Dole, and shop rights follow, with a diligence checklist, a worked example, an FAQ, and related reading.
Patent Venue After TC Heartland: Regular and Established Places of Business, Foreign Defendants, and Transfer
This article explains where a patent owner may sue and when an accused infringer can make the case move. It traces 28 U.S.C. § 1400(b) from the 1897 statute through Fourco, VE Holding, and TC Heartland, then reads the Federal Circuit's cases on home offices, servers, call centers, dealerships, and corporate affiliates closely. It covers the burden of proof, waiver, the rule that foreign defendants have no venue defense, Hatch-Waxman venue, and the unresolved split over whether one step of a method claim is enough. It then turns to section 1404(a) transfer, the mandamus decisions that reshaped Waco and Marshall, random assignment, and the state of the Fifth Circuit's convenience test. Worked hypotheticals show how the rules play out for remote workforces, cloud deployments, and foreign parents with American subsidiaries.