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.
Copyright Registration of Books, Manuscripts, and Speeches
Books, manuscripts, and speeches are "literary works" under U.S. copyright law, and registering them with the U.S. Copyright Office unlocks the right to sue, statutory damages, attorney's fees, and a public record of ownership. This guide explains how registration works for written and spoken expression, including the all-important fixation requirement that decides whether an extemporaneous speech is protected at all. It walks through published versus unpublished status, the deposit and best-edition rules, single versus standard versus group registration (including the GRTX option for short online literary works), preregistration for at-risk manuscripts, and the special wrinkles of ghostwriting, pen names, and anonymous authorship. A running worked example follows a debut novelist from first draft to certificate. The article closes with an FAQ, key takeaways, and a reminder that an ISBN is not a copyright.
Filing a TTAB Notice of Opposition: A Practical Checklist
An opposition is a challenge to a pending trademark application before it registers, filed with the Trademark Trial and Appeal Board within thirty days of publication in the Official Gazette. This checklist walks an opposer and its counsel through monitoring publication, securing extensions of time, confirming entitlement to a statutory cause of action, selecting and pleading the grounds, filing through ESTTA, and preparing for the institution order, the mandatory discovery conference, and the proceeding that follows. It explains the Board's narrow jurisdiction over registrability, the 15 U.S.C. Section 1063 deadline structure, and the strategic stakes of a Board proceeding after B&B Hardware. WHY notes and traps accompany each phase. Verify current TBMP guidance, 37 C.F.R. Part 2 rules, and fees before filing.
Trademark Overview: Infringement and Related Rights Under Trademark Law
This is Part 4 of a four-part overview of United States trademark law, covering what happens when a mark is misused and how owners enforce their rights. It explains the core test for infringement—likelihood of confusion—and the multifactor analyses the federal circuits apply, then walks through the related federal causes of action: dilution of famous marks under the TDRA, cybersquatting under the ACPA, false designation of origin and false advertising under Section 43(a), counterfeiting, gray-market imports, and contributory liability. It maps the major defenses, including descriptive and nominative fair use, the expressive-use limits the Supreme Court reset in Jack Daniel's Properties v. VIP Products (2023), and equitable defenses such as laches. It closes with the full remedial toolkit—injunctions, profits, damages, enhanced and statutory awards, attorney's fees, seizure, and customs recordation—plus a practical enforcement framework and FAQ. Read it alongside Parts 1 through 3 of the series on subject matter, substantive standards, and obtaining and licensing rights.
Brand Protection Online: A Strategic Guide for Businesses
This guide explains how businesses can protect their brands across the internet, from federal trademark registration through enforcement against cybersquatters, counterfeiters, and online impersonators. It covers the Lanham Act framework, the Anticybersquatting Consumer Protection Act and the UDRP, keyword advertising and metatag litigation, marketplace anti-counterfeiting programs including Amazon Brand Registry, Tariff Act customs seizures, DMCA notice-and-takedown, gray-market parallel imports under the first-sale doctrine, and the limits of online reputation and defamation remedies. It translates each doctrine into plain language, illustrates the law with worked hypotheticals, and cites the controlling statutes and leading cases. The article closes with a practical, repeatable monitoring-and-enforcement program, a worked multi-threat example, and a short FAQ. It is written so that brand managers, in-house counsel, and litigators can all use it as a working reference.
The Trademark Process: From Search to Registration and Beyond
This guide walks a brand owner through the entire life of a U.S. trademark, from picking a name to keeping the registration alive decades later. It explains the distinctiveness spectrum (the Abercrombie ladder from generic to fanciful), how clearance searches work, the difference between use-based and intent-to-use filing bases, and what happens when a USPTO examining attorney issues a refusal under Section 2(d) for likelihood of confusion or Section 2(e) for descriptiveness. It covers the mechanics of TEAS e-filing, the specimen rules that sink more applications than anything else, publication and opposition before the Trademark Trial and Appeal Board, the Notice of Allowance and Statement of Use, the certificate of registration, and the post-registration maintenance filings under Sections 8, 15, and 9. It folds in the changes wrought by the Trademark Modernization Act of 2020 and the 2020 e-filing rules. Written for founders, in-house lawyers, and the curious alike, it pairs plain-English explanations with worked hypotheticals and primary authority. The aim is to demystify a process that intimidates many small businesses but follows a surprisingly logical arc. It is general information, not legal advice.
Finding, Qualifying, and Using Prior Art: A Practical Guide
Finding prior art is only the first third of the job; the reference must also qualify under 35 U.S.C. § 102 and be proved with admissible, corroborated evidence before it can invalidate anything. This guide walks the process step by step: fixing the claims and their effective filing dates, planning and running searches across patent databases, non-patent literature, archived web pages, and products, and investigating the patent owner's own sales and demonstrations. It then explains how to qualify each candidate by category, date, public accessibility, content, and the § 102(b) exceptions, how to authenticate and corroborate it, and how to chart it for anticipation or obviousness. The final steps cover deploying the art in prosecution (IDS practice, Rule 130 declarations, third-party submissions, reexamination) and in litigation and PTAB proceedings, with timelines, costs, and the patent owner's counterattacks. A worked example follows a defendant who finds an old competitor's product manual on archive.org and turns it into an invalidity case.
Right of Publicity Basics
The right of publicity is the legal right to control the commercial use of your name, image, likeness, voice, and other recognizable parts of your identity. It is almost entirely a creature of state law, so it varies dramatically from one state to the next, and it grew out of privacy law before courts recognized it as a property right in its own right. This article traces the doctrine from Haelan Laboratories and the Supreme Court's only right-of-publicity decision, Zacchini, through the voice and persona cases (Midler v. Ford, Waits v. Frito-Lay, and White v. Samsung), and explains the First Amendment, transformative-use, and copyright-preemption defenses that frequently defeat these claims. It covers who is protected, the registration and "continuing use" hoops some postmortem statutes impose, how the right differs from defamation, false light, trademark, and copyright, the remedies available, and the new wave of AI, voice-cloning, and deepfake legislation, including Tennessee's ELVIS Act and the proposed federal NO FAKES Act. Worked examples and a FAQ make the concepts concrete for celebrities, businesses, and ordinary people alike. The piece is educational and is not a substitute for advice from qualified counsel.
Drafting and Maintaining a Privacy Policy: A Practical Guide
This guide walks a company, its lawyers, and anyone reading a privacy policy against it through the life of the document in the order the work actually happens: scoping the project, deciding which laws apply, building the fact base from a data map, vendor list, network capture, and retention schedule, and making the business decisions the policy will describe. It then covers drafting the full policy, the notices at collection, and the just-in-time notices; designing consent flows, opt-out links, and Global Privacy Control handling that survive the dark-pattern rules; and verifying every sentence against a named source of truth before launch. It explains how to publish, archive, and give notice of changes, when a change requires affirmative express consent under the FTC's Gateway Learning rule, what the formation cases from Douglas and Stover to Schnabel require of a change notice, and how to run the twelve-month update cycle and the annual accuracy audit. It covers what to do when a demand letter, a regulator's investigative demand, or an acquirer's diligence request tests the policy, with strategy for each side. A worked example follows an online retailer through a ten-week rebuild of its policy for a loyalty launch, and the guide closes with special situations, timelines and costs, common mistakes, an FAQ, and practical takeaways.
Genericness, Genericide, and Acquired Distinctiveness: Where Trademark Protection Begins and Ends
Trademark protection has two borders, and most expensive brand disputes are fought on one of them. At the bottom border sits genericness: a term that names the product itself (aspirin, escalator, thermos) belongs to everyone, whether it was born generic or died into genericness through the owner's own neglect, and no registration, however old, can save it. At the upper border sits acquired distinctiveness, the showing under Section 2(f) of the Lanham Act that lets a merely descriptive term, a product shape, a color, or a sound cross into protection because the public has learned to read it as a brand. This article explains the primary significance test, the difference between genericness ab initio and genericide, the Supreme Court's rejection of a per se rule in USPTO v. Booking.com, the Federal Circuit's line from Marvin Ginn through Princeton Vanguard, Cordua, and Royal Crown, and the Teflon and Thermos survey formats and their critiques. It then walks through the Converse factors, the five-year presumption, why sales figures alone rarely prove secondary meaning, the special rules for product configuration and color, and the brand usage disciplines that keep a successful name from becoming a noun. Two worked examples (a software product whose name is becoming a verb, and a furniture maker seeking 2(f) protection for a chair design) show how the doctrine plays out in practice.
Publicity and Free Speech Toolkit: Transformative Use Memos, Newsworthiness Analyses, and Anti-SLAPP Motions
This toolkit collects the working documents that publicity disputes over expressive works actually run on, each annotated for both the creator and the person depicted. It opens with a real-person use log and then provides a transformative use memorandum, a chart for comparing a depiction against the decided cases, a newsworthiness and public interest analysis, and a commercial speech worksheet for marketing and brand content. The litigation templates cover a California anti-SLAPP motion, the supporting declarations, the plaintiff's opposition, a federal Rule 12 outline for courts that will not hear a special motion, and a tracker for fees and appeals that reflects the Ninth Circuit's 2025 en banc decision in Gopher Media v. Melone. A final pair of pre-release letters covers the subject's objection and the creator's response. Each template states its purpose, its owner, and when to use it, and is followed by drafting notes tied to the controlling authority.
Resolving a Trademark Ownership Dispute: A Practical Guide
This guide walks through a trademark ownership dispute from the first sign of trouble to a recorded resolution, for the company, founder, band, manufacturer, distributor, or licensee on either side. It begins with the decisions to make before acting: what kind of dispute it is, what the contracts say, how old any registration is, and what outcome actually matters. Eleven numbered steps then cover freezing and organizing evidence of first use and control, reading the USPTO record and assignment chain, analyzing ownership under the right legal test, securing filings and digital assets, sending or answering a demand, cancelling a void registration at the Trademark Trial and Appeal Board, litigating in district court with Section 1119, seeking a declaratory judgment, negotiating an assignment, buyout, or coexistence agreement, and implementing the result. Each step explains what to do, why, the governing authority, pitfalls, timing, and cost. A timeline and cost table, a worked example involving a Danish cookware maker and its former U.S. distributor, common mistakes, an FAQ, and takeaways close the guide.
Trade Secret Identification and Discovery Checklist: A Practical Checklist
This checklist turns the law of trade secret identification and discovery into a sequence of concrete tasks for trade secret owners, accused employees and competitors, in-house counsel, and outside litigators. It starts with the first seventy-two hours after a suspected theft, covering preservation, forensic imaging, and the pre-suit investigation, then walks through drafting a numbered identification with reasonable particularity, negotiating the sequence of discovery, and testing an opponent's identification. Later parts cover the two-tier protective order, source code and prosecution-bar provisions, neutral forensic protocols for devices and personal accounts, emergency relief and the DTSA seizure remedy, written discovery and depositions, spoliation under Rule 37(e), and amendments to the identification. The final parts address summary judgment, trial, courtroom confidentiality, and the supplier-and-customer version of the case. Each item carries a short note and the governing statute, rule, or decision, and the checklist reflects the law as of September 2026, including the Ninth Circuit's 2025 decision in Quintara and the Seventh Circuit's 2026 decision in NEXT Payment Solutions.