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 PropertyTrademark

Recovering a Domain Name: A Practical Guide

Recovering a domain name is a decision tree, not a single procedure, and the first branch is why the name is gone. This guide separates the five common situations — a squatter, a legitimate prior holder, a lapsed registration, a hijacked account, and a former partner or employee — because each has a different remedy and treating them alike produces expensive failures. It walks through the investigation that must precede any filing, the choice between the UDRP and federal litigation, the mechanics of drafting and prosecuting each, the negotiated purchase as an alternative, and the portfolio hygiene that prevents the next occurrence. It includes evidence checklists, a timeline, and the errors that most often defeat an otherwise strong claim.

Casey Scott McKayFebruary 2, 202628 min read

Intellectual PropertyTrademark

Domain Name Disputes: Cybersquatting, the ACPA, and the UDRP

A domain name is a contract with a registrar that happens to function like a brand, and that mismatch produces a distinctive body of law. This article explains the two systems that resolve domain disputes — the federal Anticybersquatting Consumer Protection Act and the contractual Uniform Domain-Name Dispute-Resolution Policy — and why they exist side by side rather than one replacing the other. It covers the elements of each, the in rem procedure that lets a trademark owner sue a domain name itself, the bad faith factors that decide ACPA cases, and the recurring situations that are not cybersquatting at all. It closes with practical portfolio management and the trap of reverse domain name hijacking.

Casey Scott McKayFebruary 1, 202627 min read

Intellectual PropertyRight of Publicity

Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands

This toolkit collects the documents that publicity work actually produces: releases in the variants an organization needs, an endorsement agreement outline with the clauses that decide disputes, a standalone digital replica consent that should never be folded into a media grant, a rights inventory schema, and the demand and takedown materials used when a use turns out to be unauthorized. Each template is annotated with its purpose, its owner, and the failure it prevents. Because the underlying right is state law and varies substantially, the templates flag the points where jurisdiction-specific review is required rather than pretending to a uniform national standard. Each template carries drafting notes on scope, term, territory, and the digital replica provisions now appearing in state statutes. Adapt everything to the governing state law, which varies more here than in most areas.

Casey Scott McKayJanuary 31, 202613 min read

Intellectual PropertyRight of Publicity

Right of Publicity Clearance Checklist: A Practical Checklist

Publicity claims against ordinary businesses almost always trace to one of three failures: no release, an expired release, or a release whose scope did not cover the use. This checklist is built to catch all three before a campaign ships. It runs the clearance sequence from classifying the use through verifying releases, checking stock license restrictions, handling deceased individuals, addressing digital replicas as a separate consent, and applying escalation rules. Separate sections cover the individual's side of a licensing negotiation and the enforcement evaluation when an unauthorized use is discovered.

Casey Scott McKayJanuary 30, 20267 min read

Intellectual PropertyRight of Publicity

Licensing and Protecting Name, Image, and Likeness: A Practical Guide

Name, image, and likeness work divides into two jobs that look similar and require different skills: licensing an identity so it produces revenue without giving away more than intended, and clearing third-party identities so a campaign does not generate claims. This guide covers both. It walks through the individual's side — entity structure, category definition, approval mechanics, digital replica consent, morals clauses, and the compliance overlay in college athletics — and the user's side, including release drafting, stock imagery restrictions, deceased individuals, and the escalation rules that keep advertising out of trouble. It closes with enforcement: how to evaluate an unauthorized use, what a demand letter should say, and when the claim is worth pursuing.

Casey Scott McKayJanuary 29, 202627 min read

Intellectual PropertyRight of Publicity

The Right of Publicity: Name, Image, Likeness, Digital Replicas, and the Limits of Owning Yourself

The right of publicity protects a person's commercial interest in their own identity, and it is the most jurisdictionally fragmented area of American intellectual property law. This article explains what the right covers, where it comes from, and why fifty different state answers produce genuine practical difficulty for anyone operating nationally. It covers the elements of a claim, the defenses that matter most — newsworthiness, expressive use, and copyright preemption — and the two developments reshaping the field: the collapse of amateurism in college athletics and the arrival of technology that can generate a convincing replica of anyone's face or voice. It closes with how the right interacts with trademark false endorsement claims and what a workable clearance practice looks like.

Casey Scott McKayJanuary 28, 202628 min read

Intellectual PropertyPatent Litigation

Patent Litigation Toolkit: A Roadmap and Research Guide

This toolkit is a high-level roadmap and curated library guide to U.S. patent infringement litigation, from pre-suit investigation through appeal and international strategy. It walks each stage: pre-suit investigation, venue and forum selection, pleadings, claim construction (Markman), discovery, infringement and defenses, invalidity including inter partes review at the PTAB, damages, trial, appeal to the Federal Circuit, and cross-border considerations. At each stage it links to mclaw.io articles and checklists plus primary and official authorities including 35 U.S.C. Sections 271/281/284, PACER, CourtListener, and leading cases. This is general information, not legal advice; verify current rules and case law before acting.

Casey Scott McKayJanuary 28, 202617 min read

Intellectual PropertyCopyright

Fair Use Toolkit: Analysis Memoranda, Clearance Decisions, and Litigation Positions

This toolkit collects the documents a fair use practice actually produces, from the intake form that converts a vague request into an answerable question to the discovery requests a defendant serves when the use is challenged. Each template is annotated with its purpose, its owner, and the specific failure it prevents. The materials serve both the clearance function and the litigation posture, and several do double duty — the memorandum template structures advice before the use and becomes the good-faith record afterward. They are structures to adapt, not forms to fill in.

Casey Scott McKayJanuary 27, 202611 min read

Intellectual PropertyCopyright

Copyright Fair Use Checklist: A Practical Checklist

Fair use analysis goes wrong in a small number of predictable ways, and nearly all of them are failures of intake rather than failures of doctrine. This checklist runs the analysis in the order that produces the clearest answer: converting a vague request into a specified use, screening for protectability and registration, characterizing the purpose, mapping the owner's markets, running the four factors, weighing them, assigning a risk tier, and identifying mitigations. It includes a separate section for each of the common clearance contexts and a closing reference table of the failures each step exists to prevent. It separates the clearance decision from the litigation posture, because the questions differ. Every item is written so that a "no" tells you what to do next.

Casey Scott McKayJanuary 26, 20267 min read

Intellectual PropertyCopyright

Conducting a Fair Use Analysis: A Practical Guide

Fair use questions arrive as yes-or-no requests and have to be answered as risk assessments, which is why a repeatable analytical workflow matters more than familiarity with the case law. This guide sets out that workflow: identifying exactly what is being used and for what purpose, gathering the facts each factor actually requires, running the four factors in the order that produces the clearest answer, and writing a memorandum that will hold up if the use is challenged. It covers the specific clearance contexts that generate most fair use questions — documentary film, publishing, education, software, marketing, and machine learning — and includes an escalation framework, a risk-tier vocabulary, and guidance on when to license instead. A worked analysis walks a real-shaped clearance decision from intake through a written memorandum. It also explains how to document the analysis so it holds up if the use is later challenged.

Casey Scott McKayJanuary 25, 202628 min read

Intellectual PropertyCopyright

Copyright Fair Use: The Four Factors, Transformative Use, and What Warhol Changed

Fair use is the most consequential and least predictable doctrine in copyright law, and the Supreme Court's 2023 decision in Warhol changed how the central question is framed. This article explains the statutory four-factor test, the history that produced it, and how courts actually weigh the factors against each other rather than counting them. It traces the rise of transformative use from Campbell through Google v. Oracle and the discipline Warhol imposed on it, and it explains why the first factor now turns on whether the new use competes with the original rather than on whether it looks different. It covers the recurring contexts where fair use is litigated — parody, criticism, news reporting, education, software interoperability, search, and machine learning — and closes with how to give and receive fair use advice.

Casey Scott McKayJanuary 24, 202628 min read

Intellectual PropertyTrade and Customs

ITC Section 337 Toolkit: Complaints, Domestic Industry Proof, and Remedy Briefing

This toolkit collects the documents that a Section 337 investigation actually runs on, from the pre-filing domestic industry allocation worksheet through the enforcement package a complainant hands to Customs after an order issues. Each template is annotated with its purpose, its owner, and the failure it prevents, and most serve both sides — the allocation worksheet builds the complainant's case and structures the respondent's attack on it. The materials assume the Commission's Rules of Practice and Procedure and note where individual administrative law judges' ground rules will control. Each template carries drafting notes on what the language does and where filings commonly fail. Adapt everything to the technology, the accused products, and the Commission's current practice.

Casey Scott McKayJanuary 23, 202612 min read