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.

Intellectual PropertyTrademark

Navigating the Maze of Trademark Confusion: Key Considerations for Brand Owners

Likelihood of confusion is the central question in nearly every trademark infringement dispute, but the doctrine is far richer and more circuit-dependent than a simple "are the marks similar" inquiry suggests. This article explains the multifactor tests applied by the federal courts and the Trademark Trial and Appeal Board -- including the Second Circuit's Polaroid factors, the Federal Circuit's DuPont factors, and the Ninth Circuit's Sleekcraft factors -- and walks through each factor with worked examples. It examines the recognized variants of confusion (direct, reverse, sponsorship, initial-interest, and post-sale), the role of consumer sophistication, secondary liability for those who enable infringers, and how survey evidence in the Eveready and Squirt formats is built and attacked. It addresses dilution of famous marks under the Trademark Dilution Revision Act, the special problems of keyword advertising and the digital marketplace, the impact of artificial intelligence on brand selection and clearance, a comparative look at how the European Union and China analyze confusion, the Supreme Court's 2023 decision in Jack Daniel's v. VIP Products narrowing the Rogers test, and the remedies and defenses that decide what a confusion finding is actually worth. It closes with a practical brand-protection program that brand owners can implement before a dispute ever arises.

Casey Scott McKaySeptember 18, 202361 min read

CommercialGeneral Commercial

Distribution, Reseller, and Channel Partner Agreements: A Practical Guide

Selling through partners multiplies reach and multiplies risk, because a distributor is simultaneously a customer, a competitor for margin, a representative of the brand, and a potential plaintiff when the relationship ends. This guide covers the agreement that governs all of that. It starts with the structural choice between a distributor who buys and resells, an agent who solicits on the supplier's behalf, and the hybrid arrangements in between, each with different tax, liability, and antitrust consequences. It then works through appointment and exclusivity, the pricing and incentive architecture that determines channel behavior, the ordering and supply mechanics, and the intellectual property and end-user terms that must flow down. Later sections address the antitrust constraints on channel restrictions, the dealer protection and franchise statutes that can convert a routine termination into a statutory violation, and the termination and transition provisions that decide what happens to the customers.

Casey Scott McKaySeptember 18, 202326 min read

CommercialGeneral Contract and Boilerplate

Contract Lifecycle Toolkit: From Term Sheet to Termination

A contract has a life longer than the negotiation that produced it, and most of the value and most of the risk are realized after signature by people who never read it. This toolkit follows a commercial agreement across its whole life. It starts with the term sheet and the binding-versus-non-binding problem, moves through formation questions that decide whose form governs, then works clause by clause through the provisions that determine what happens when something goes wrong: scope, payment, warranties, indemnity, liability caps, insurance, and termination. Later stages cover the operational half that companies neglect entirely: where signed contracts live, who tracks the obligations they impose, how renewals and price escalators are caught before they run, and what to do in the first week of a dispute, including the notice and cure mechanics that decide whether a termination is lawful.

Casey Scott McKaySeptember 17, 202316 min read

Labor and EmploymentInternal Investigations

Conducting a Workplace Harassment Investigation: A Practical Guide

A workplace investigation is a legal proceeding conducted by non-lawyers under time pressure, and its quality determines whether an employer has a defense or a document that will be read to a jury. This guide covers the process end to end: why the investigation matters legally and what the Faragher-Ellerth defense actually requires, how to receive and triage a complaint, what interim measures are appropriate and which create retaliation exposure, who should investigate and how privilege works, how to plan and conduct interviews, how to assess credibility and make findings, what belongs in a report and what does not, and how to close the loop with remedial action and follow-up. It also addresses the harder situations: anonymous complaints, executive respondents, conduct that may be criminal, and unionized workforces. The recurring lesson is that promptness, independence, and a report written as though a jury will read it are what turn an investigation into a defense rather than an exhibit.

Casey Scott McKaySeptember 16, 202325 min read

CorporateCorporate Governance

Fiduciary Duties of Directors and Officers: The Business Judgment Rule, Loyalty, and Caremark Oversight

Directors are not liable for bad outcomes, and that single sentence explains most of what the law of fiduciary duty does. The business judgment rule presumes that a disinterested, informed, good-faith board decision was proper, and the entire architecture of corporate litigation is built around whether a plaintiff can knock that presumption down. This article works through the three duties that matter — care, loyalty, and the oversight obligation that grew out of Caremark — and shows where each one actually breaks in practice: uninformed sale processes, conflicted transactions that skipped a cleansing procedure, and compliance systems that never existed for a risk central to the business. It also covers exculpation, indemnification, advancement, and D&O coverage, the protections that determine whether a breach finding costs a director money or costs an insurer money, and it addresses closely held companies and LLCs, where the rules differ in ways that surprise people who learned them from public-company cases.

Casey Scott McKaySeptember 14, 202327 min read

LitigationClass Actions

Class Actions Under Rule 23: Certification, Settlement, and Defense Strategy

A class action lets one lawsuit resolve claims for thousands of people who will never appear in court, which is either an indispensable tool for aggregating small harms or a machine for manufacturing settlement pressure, depending on which side of the caption you occupy. Both descriptions are sometimes true. This article explains how Rule 23 actually works, from the four prerequisites of Rule 23(a) through the three categories of Rule 23(b), with attention to the doctrinal fights that decide most cases: the commonality standard after Wal-Mart v. Dukes, the damages-model requirement of Comcast v. Behrend, the treatment of individualized issues and representative proof after Tyson Foods, ascertainability and the circuit split over it, and the standing problem for uninjured class members after TransUnion v. Ramirez. It covers settlement approval under the amended Rule 23(e), the role and regulation of objectors, interlocutory review under Rule 23(f), and federal jurisdiction under the Class Action Fairness Act. It then turns to strategy for both sides, including the arbitration and class waiver defense that has reshaped consumer litigation. It closes with checklists, a worked example, an FAQ, and related reading.

Casey Scott McKaySeptember 8, 202326 min read

CorporateSecurities

Series A Financing Closing Checklist: A Practical Checklist

A Series A closing is a document assembly exercise with a small number of hard dependencies and a long list of items that must be complete before funds are wired. Most delays come from the same places: a capitalization table that does not reconcile, missing invention assignment agreements from early contractors, an unfiled 83(b) election, and stockholder consents that take longer to gather than anyone planned. This checklist runs the closing from signed term sheet through post-closing obligations, organized so that the long-lead items are identified first, and it flags the securities filings and corporate housekeeping that must follow the wire. This checklist sequences the closing set, the corporate approvals, and the post-closing filings that must follow within days rather than weeks.

Casey Scott McKaySeptember 7, 202310 min read

Intellectual PropertyCopyright

Copyright Registration for Derivative Works

A derivative work is a new work built on top of one or more preexisting works—translations, film adaptations, remixes, sequels, annotated editions, and new software versions. This guide explains exactly what a derivative work is under 17 U.S.C. § 101, how § 103 confines the copyright in a derivative to the new material the author actually added, and why a derivative work can never extend the life of the underlying copyright. It walks step by step through registering a derivative work with the U.S. Copyright Office—how to complete the "limitation of claim," "material excluded," and "new material included" fields so an application sails through. It covers the originality threshold under Feist and Durham Industries, the "thin copyright" problem, the § 106(2) adaptation right, the unforgiving § 103(a) rule that a derivative must be lawfully made, and the accuracy obligations the Supreme Court addressed in Unicolors v. H&M. Worked examples across film, music, software, and visual art, a model application walkthrough, an FAQ, and cross-links to related copyright topics round it out.

Casey Scott McKaySeptember 7, 202339 min read

FinanceLending

Personal Guaranty Review Checklist: A Practical Checklist

A personal guaranty is usually presented at a closing table with the loan proceeds waiting, and it is signed without negotiation because the alternative appears to be no loan. That is frequently wrong: several terms are negotiable, a few are not, and one federal rule can void the document entirely. This checklist gives an owner and their counsel a structured review — what the guaranty actually covers, whether it is capped or unlimited, what defenses have been waived and which survive waiver, whether the spousal signature was lawfully required, and how the guarantor exits when they leave the business. It also includes the lender's drafting checklist, because the same document is read from both sides.

Casey Scott McKaySeptember 5, 20238 min read

CorporateBusiness Formation

Piercing the Corporate Veil: Keeping Limited Liability Limited

Limited liability is the reason people form corporations and limited liability companies, and it works almost all of the time. Almost. Courts will disregard the entity and reach the owners where the entity was operated as a mere instrumentality of its owners and where respecting the separation would sanction a fraud or produce an inequitable result. This article explains how that doctrine actually operates: the two-part test applied in most states, the specific factors courts weigh and which of them do the real work, why undercapitalization alone rarely suffices, and why commingling of funds and failure to observe formalities are the findings that most often sink a defense. It covers the important structural point that a parent is more often held liable for its own conduct under Bestfoods than through veil piercing, the growing acceptance of reverse veil piercing in Delaware and California, the special treatment of limited liability companies whose statutes expressly excuse many formalities, and the related doctrines of successor liability, single business enterprise, and personal guarantees. It closes with a practical corporate hygiene program, a worked example, an FAQ, and related reading.

Casey Scott McKaySeptember 4, 202326 min read

TechnologyLegal Practice Management

Open Source for the Law Firm: A Practical Guide

Open source software lets a law firm own its tools, its data, and its destiny--often at a fraction of the cost of proprietary suites--but only if the firm pairs the technology with the ethical diligence the rules of professional conduct now demand. This action-oriented guide walks through a realistic open source stack for a solo or small firm, from the operating system to practice management, documents, email, ediscovery, accounting, and security. It maps each technology choice onto the lawyer's duties of technology competence (ABA Model Rule 1.1, Comment 8), confidentiality (Model Rule 1.6(c)), and supervision (Rules 5.1 and 5.3), drawing on ABA Formal Opinions 477R and 483 and recent state ethics opinions. It explains how open source licenses (MIT, Apache, GPL, AGPL) actually work, gives an honest total-cost-of-ownership comparison, and treats data portability as a structural hedge against vendor lock-in. It closes with a phased, low-drama migration plan a firm can actually execute. The companion piece, running a law firm on open source technology, covers the philosophy and full toolchain in more depth; this is the shorter, do-it-this-quarter version.

Casey Scott McKaySeptember 3, 202341 min read

Intellectual PropertyCopyright

Registering a Copyright in Photographs: A Practical Checklist

Photographs are among the most-copied and least-registered works on earth, and the group-registration options exist precisely so a working photographer can protect hundreds or thousands of images affordably. This checklist walks a photographer or adviser through classifying images as published or unpublished, confirming ownership (the photographer, not the client, owns by default), choosing between the GRPPH and GRUPH group options, preparing the all-important title list, and submitting deposits that match. It explains the timing rules that drive statutory damages under Section 412, the metadata and copyright-management-information protections of DMCA Section 1202, and the common mistakes that delay registrations. Verify current fees and group caps at copyright.gov before filing.

Casey Scott McKayAugust 27, 20237 min read