Legal insights
Analysis from the front lines of IP & technology law.
Our attorneys write about the developments shaping intellectual property—from the PTAB and the Federal Circuit to the practical realities of protecting fast-moving technology.
Consumer Survey Expert Methodology in Trademark Cases: A Practical Guide
A consumer survey is a scientific instrument, and in a trademark case it is only as good as its methodology. This guide explains, in plain language for lawyers and business owners alike, how trademark confusion surveys are designed and read—knowledge that is essential whether you are building a survey to prove your case or attacking the other side's. It covers the foundational choice of the survey universe (and why the wrong universe is usually fatal), the two principal confusion-survey formats (Eveready, for strong marks, and Squirt, for weaker marks or marks encountered together), the indispensable role of control groups and net confusion, double-blind administration, probability and non-probability sampling, sound question design and marketplace realism, how courts evaluate methodology under Daubert and the 2023 amendment to Federal Rule of Evidence 702, and what level of confusion is actually meaningful. It also maps the specialized genericness formats (Teflon and Thermos) and surveys for secondary meaning and fame, closes with a worked example showing how a single design choice can change the result, and ends with practical takeaways and an FAQ for both the proponent and the challenger.
Patent FAQs: Frequently Asked Questions About Patents
A friendly, plain-English question-and-answer guide to the patent questions inventors and small-business owners actually ask, from "Do I even need a patent?" to "Can I patent my app?" and "How much will this cost?" It explains the difference between patents, trademarks, and copyrights; walks through provisional versus nonprovisional filings; demystifies prior art, patent searches, and the famous Alice software-eligibility test; and covers timelines, fees, international protection, licensing, and infringement. It also tackles the traps that quietly kill rights—public disclosures, the on-sale bar, missed deadlines, and the myth of the "poor man's patent." Written so a curious layperson, a busy founder, and a legal professional can all follow along, with concrete worked examples and links to deeper resources. For the procedural deep dive into USPTO mechanics, this guide points you to our companion hub. As always, it is general information, not legal advice.
Rebranding Without Regret: Clearance, Transition, and Protecting the Old Mark While Launching the New One
A rebrand is two trademark projects running at once: clearing and securing a new mark, and deciding what happens to the old one. This article explains why companies rebrand and how the reason for the change shapes the legal plan, then walks through clearance under Section 2(d) and the du Pont and Polaroid factors, priority through intent-to-use filings, constructive use, and Paris Convention claims, and the limits of tacking after Hana Financial v. Hana Bank. It covers the transition period, including "formerly known as" messaging, nominative fair use, false advertising risk, and the migration of domains and social handles. It then examines the legacy mark: abandonment under the three-year presumption, the cases on intent to resume and residual goodwill from Exxon's retirement of HUMBLE to the Brooklyn Dodgers, maintenance filings, and the choice among keeping, licensing, selling, or retiring the old brand. Litigation-driven rebrands, phase-out and sell-off periods, corrective advertising, and reverse confusion get their own treatment, along with lessons from Meta, X, and the Washington Commanders. An extended worked example, common mistakes, an FAQ, and takeaways close the article.
Expert Disclosure and Daubert Challenge Checklist: A Practical Checklist
Expert practice fails in two places: the disclosure, which is mechanical and unforgiving, and the reliability challenge, which the December 2023 amendment to Rule 702 made materially easier to win. This checklist covers both, from selecting an expert whose qualifications match the specific opinion through preparing the report, taking and defending the deposition, and briefing or opposing a motion to exclude. It incorporates the amended rule's two changes: the proponent must demonstrate admissibility by a preponderance, and the opinion must reflect a reliable application of the methodology, which forecloses the once-standard argument that application questions go only to weight. Each phase is paired with the reason it matters and the governing rule or case.
Copyright Claims Board Toolkit: Claim Statements, Opt-Out Decisions, and Settlement Templates
This toolkit collects annotated templates for every stage of a Copyright Claims Board proceeding, written for claimants, respondents, and the lawyers who advise them. It opens with a forum-fit worksheet and a pre-filing demand letter, then supplies model claim statements for the three claims the Board hears: infringement, declarations of noninfringement, and DMCA misrepresentation under section 512(f). For respondents it provides an opt-out decision memo with an exposure comparison, an opt-out notification worksheet, and model response, agreement-to-cease, and agreement-based counterclaim language. The settlement templates cover a term sheet with Board-specific clauses, a settlement conference position statement, and a joint request asking the Board to dismiss and adopt agreed terms in a final determination so they can be enforced in federal court. Supporting tools include an evidence log, a service tracker, a witness statement, and an application to confirm an unpaid award under 17 U.S.C. section 1508. Each template states its purpose, owner, and timing and is followed by drafting notes tied to the statute, the Board's regulations, and the case law as of June 2025.
Section 8 Declaration of Continued Use: A Practical Checklist
A federal trademark registration is a living asset that must be maintained on a schedule set by the Lanham Act, and the Section 8 declaration of continued use is the heart of that schedule. This checklist walks a registrant and its counsel through the year-six and year-ten (and every-decade) Section 8 windows, confirming current use class by class, gathering compliant specimens, pruning deadwood, drafting the verified declaration, filing through the USPTO, and surviving a random proof-of-use audit. It covers the narrow excusable-nonuse escape hatch, the Section 71 counterpart for Madrid-based registrations, and the value of combining the filing with a Section 15 incontestability declaration. WHY notes and traps accompany each phase. Verify current fees, deadlines, and forms on the USPTO site before filing.
Employee Monitoring and Workplace Privacy: A Practical Guide
Employers can monitor a great deal and are prohibited from monitoring some of it, and the line is drawn by a patchwork of federal wiretap law, state statutes with sharply different consent rules, labor law, and the employer's own policies. This guide covers what is permitted and what the practice requires. It starts with the reasonable expectation of privacy framework and the notice and policy foundation that eliminates most exposure, then works through the categories: computer and email monitoring, productivity and keystroke software, video surveillance, location tracking, telephone and video call recording, and biometric systems. It covers the statutes that impose the strictest requirements, including all-party consent recording laws and state biometric privacy acts with private rights of action, and the state consumer privacy laws that now reach employee data. Later sections address personal devices, remote work, social media and off-duty conduct, testing, and investigations.
Banking and Payments Regulation for Fintech Companies
A payments or lending product built by a technology company is regulated as financial services from the first transaction, and the regulatory obligations attach whether or not anyone at the company has read them. The framework is fragmented across federal prudential regulators, the Consumer Financial Protection Bureau, FinCEN, OFAC, and fifty state banking departments, and the same product can be lawful in one structure and unlicensed money transmission in another. This article maps the regime: when a product requires money transmitter licensing and when it does not, how bank partnership structures work and where they fail, the consumer protection statutes that apply to accounts and credit, the anti-money-laundering program every covered company must build, and the third-party risk management expectations that now govern what a sponsor bank will let a fintech do. Two obligations run through all of it without any size or licensing threshold: sanctions screening under OFAC and the prohibition on unfair, deceptive, or abusive acts and practices.
Understanding Copyright Registration for a Song: A Comprehensive Guide for Bands
Every recorded song contains two distinct copyrights—the musical work (the underlying composition of notes and lyrics) and the sound recording (the master that captures a particular performance)—and each must be registered separately with the U.S. Copyright Office. This guide explains who owns what when a band creates a song, including how members become joint authors under 17 U.S.C. 201(a), how session musicians and producers fit in, and why work-made-for-hire status matters and so often fails for music. It walks step by step through registering both copyrights through the eCO system, covering the single application, standard application, the modern group-registration options (the GRAM option for albums and the group option for unpublished works), preregistration for works still in production, deposit requirements, and fees. It explains the concrete legal payoffs of timely registration—registration as a prerequisite to suit under 17 U.S.C. 411 after Fourth Estate v. Wall-Street.com, eligibility for statutory damages and attorney's fees under 17 U.S.C. 412, and access to the Copyright Claims Board. Finally, it covers band agreements, split sheets, sampling and interpolation clearance, the royalty pipeline (PROs, the Section 115 blanket mechanical license and the MLC, and SoundExchange), and provides a worked example and an action checklist.
Home Purchase and Sale Checklist: A Practical Checklist
A deadline-driven checklist for a residential closing, run from both sides. The buyer sequence covers budget and pre-approval, the eight negotiable offer terms, the first seventy-two hours after acceptance, the inspection set to order, the written response that preserves the contingency, reading the title commitment where the surprises live, appraisal gaps, underwriting discipline, the three-day Closing Disclosure comparison, the walkthrough, and post-closing confirmation. The seller sequence covers the pre-listing title search and permit history, the listing agreement terms to negotiate, honest disclosure, evaluating offers on more than price, and escrow management. A shared section covers wire fraud prevention and deal failure.
Hiring From a Competitor: Inevitable Disclosure, Employee Raiding, and the New Employer's Trade Secret Exposure
Hiring a competitor's employee is lawful almost everywhere, and the cases that hurt new employers turn on what arrives with the hire and what the company knew or should have asked. This article explains why the law protects the hire itself, how the Defend Trade Secrets Act and state law reach a new employer through knowledge, constructive notice, and vicarious liability, and where inevitable disclosure still survives after PepsiCo, Whyte, Bimbo Bakeries, and the DTSA's limits on employment injunctions. It covers employee raiding and tortious interference, the state of noncompete law after the FTC removed its rule from the Code of Federal Regulations in February 2026, and the 2026 appellate decisions in Comet v. XP Power and Insulet v. EOFlow. It reads the leading contamination cases closely and describes what actually happens on the systems involved, from USB registry entries to cloud sync folders. Worked hypotheticals show how the rules apply, and a closing section lists what remains unsettled.
Trademark Overview: Substantive Standards for Protection
This is Part 2 of our four-part Trademark Overview series, and it answers the question that decides every trademark fight before it starts: which designations the law is actually willing to protect, and which it turns away at the door. We begin with the affirmative requirement of distinctiveness—the Abercrombie spectrum from generic to fanciful, and the secondary-meaning doctrine that lets a weak descriptive term grow into a protectable mark. Then we walk the statutory gauntlet of Lanham Act Section 2, the list of bars that sink most applications: mere descriptiveness and deceptive misdescriptiveness under Section 2(e)(1), primarily geographically descriptive and deceptively misdescriptive marks under Section 2(e)(2) and (3), primarily-merely-a-surname refusals under Section 2(e)(4), the functionality bar that keeps useful product features out of trademark law, the likelihood-of-confusion bar of Section 2(d), and the deception and "names" bars of Section 2(a)—including what survived the First Amendment earthquake of Matal v. Tam, Iancu v. Brunetti, and Vidal v. Elster. Throughout we supply the actual legal tests examiners and courts apply, with citations, plus worked hypotheticals and a practical FAQ. Read it alongside Part 1 (subject matter), Part 3 (obtaining protection and licensing), and Part 4 (infringement).