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.
Trademark Fair Use: Descriptive Use, Nominative Use, and Expressive Works After Jack Daniel's
A trademark gives its owner control over a signal of source, not ownership of words, images, or the right to talk about the brand. This article explains the three doctrines that mark that boundary: classic descriptive fair use under 15 U.S.C. § 1115(b)(4), nominative fair use for truthful references to a mark owner and its products, and the special treatment of expressive works and parody under Rogers v. Grimaldi and the dilution exclusions in § 1125(c)(3). It walks through the leading cases from KP Permanent Make-Up and New Kids on the Block to the Supreme Court's 2023 decision in Jack Daniel's Properties v. VIP Products, which held that Rogers does not apply when the accused use functions as a source identifier for the user's own goods. It then shows how courts have applied that rule in Vans v. MSCHF, Punchbowl v. AJ Press, Hermès v. Rothschild, and the Bad Spaniels remand, and how the circuits still divide on burdens and tests for nominative use. Practical sections cover procedure, evidence, strategy for brand owners and accused users, costs, common mistakes, and worked examples involving a repair shop, a craft brewery parody, and a SaaS comparison chart, followed by an FAQ and takeaways.
Real Estate Development Toolkit
Development is a sequence of options in which the developer buys time to answer questions before committing capital, and the failures are almost always a question answered too late. Title exceptions discovered after closing, an environmental condition found after the innocent landowner defense was lost, an entitlement the site could not obtain, a construction loan that funded before the equity was documented. This toolkit follows a project from site identification through disposition: structuring the acquisition with the diligence period and the deposit at risk, running title and survey and environmental review, obtaining entitlements, assembling the capital stack and the joint venture, financing and building, achieving stabilization, and exiting. Each stage identifies the decision that must be made before the next one begins.
Advertising FAQs: A Guide for Small Business
This is a plain-English, deeply practical FAQ on U.S. advertising law for small businesses, founders, and the lawyers who advise them. It explains the bedrock rule that ads must be truthful, substantiated, and not unfair under Section 5 of the FTC Act, then walks through the doctrines that trip up real companies: the substantiation requirement, express versus implied and monadic versus comparative claims, the FTC's reasonable-consumer and "net impression" tests, the 2023 endorsement and influencer disclosure rules, native advertising, "Made in USA" claims, the Green Guides, deceptive pricing and "free" offers, bait-and-switch, and comparative advertising. It covers the laws that govern how you reach customers, including CAN-SPAM for email, the TCPA for texts and robocalls, the Telemarketing Sales Rule, COPPA for marketing to kids, and the negative-option and "dark patterns" rules for subscriptions. It addresses competitor disputes under Lanham Act Section 43(a) and the role of self-regulation through the National Advertising Division and its Fast-Track SWIFT process. Throughout, it flags where federal law ends and the fifty-state patchwork of consumer-protection statutes begins, and it gives concrete, worked examples a non-lawyer can follow.
Workers Compensation: The Grand Bargain, the Claim, and the Exceptions
Workers compensation is the oldest and largest no-fault system in American law, and almost nobody outside it understands the trade it makes. An injured worker gives up the right to sue the employer and to recover for pain and suffering; in exchange, benefits are paid without proving fault and without the delay of litigation. This article explains the bargain and everything that follows from it: what injuries are covered and the phrases that decide coverage, the benefit categories and how each is calculated, the medical control fights that dominate modern practice, the exceptions that let a worker sue anyway, the third-party claim that is often worth more than the compensation case, and the settlement mechanics. It is written for injured workers, employers, and the lawyers on both sides.
Top-Level Domain Names: An Overview
This article explains what top-level domain names (TLDs) are and where they sit in the Domain Name System hierarchy, then maps the full landscape of generic, country-code, sponsored, and new gTLDs. It describes ICANN's governance role and the new gTLD expansion program, the registry-registrar-registrant chain, and how WHOIS data and the EU's GDPR shape investigations. The article details the trademark rights-protection mechanisms built into the gTLD system—the Trademark Clearinghouse, Sunrise and Claims services, the Uniform Rapid Suspension System, and post-delegation procedures—and compares the two principal anti-cybersquatting remedies, the UDRP and the federal ACPA, 15 U.S.C. 1125(d). It examines the unsettled question of whether a domain is property, analyzes how the USPTO treats TLDs in trademark applications including the Supreme Court's decision in Booking.com, and closes with practical guidance, worked hypotheticals, and an FAQ. It is written for judges, practitioners, and laypeople alike.
Regulation of Cryptocurrency Around the World
Cryptocurrency sits at the crossroads of money, securities, commodities, property, and software law, and the rules differ sharply depending on which token you hold and which border you stand behind. This article explains in plain language what crypto and blockchain are, then maps the fractured U.S. framework: the SEC and the Howey securities test (including the 2023 Ripple ruling and the conflicting Coinbase and Kraken decisions), the CFTC's commodity jurisdiction, FinCEN's anti-money-laundering regime under the Bank Secrecy Act, the patchwork of state money-transmitter laws and the New York BitLicense, and the IRS's treatment of crypto as property. It then surveys the rest of the world, from the EU's comprehensive MiCA regulation to the very different approaches of the UK, Switzerland, Singapore, and Japan, to outright bans in China and elsewhere, plus the rise of stablecoins (and the 2025 federal GENIUS Act) and central bank digital currencies. Because the 2024-2026 U.S. legislative landscape is moving quickly, the article flags what is settled, what is contested, and what is genuinely in flux. Worked hypotheticals translate abstract doctrine into concrete decisions a founder, investor, or compliance officer actually faces. Read it as a map, not as legal advice for any specific transaction.
Corporate Formalities and Veil Protection Checklist: A Practical Checklist
The corporate veil is not created by filing articles of organization; it is maintained by behaving as though the entity is real. This checklist covers what that means in practice, organized around the factors courts actually weigh when deciding whether to hold an owner personally liable. It starts with formation and capitalization, then covers the separateness practices that matter most in litigation: separate bank accounts, documented related-party transactions, signature blocks that disclose the entity, and contracts and leases in the entity's name. Later phases address governance records, state compliance and foreign qualification, the special problems of the single-member LLC, and the obligations that survive dissolution. A final phase covers what to do when a plaintiff has already pleaded alter ego.
Buy-Sell Agreement Drafting Checklist: A Practical Checklist
A buy-sell agreement fails in a small number of predictable ways: a stale price, an appraisal procedure that can deadlock, a chain of options with no mandatory purchaser, and insurance nobody maintained. This checklist is organized to catch each of them at drafting, and to establish the maintenance discipline that keeps the agreement usable years later when it is finally needed. It covers structure, the full range of triggering events, the valuation mechanism and the discount question that generates most of the litigation, funding through insurance and installment notes, the surrounding governance terms, and the entity-specific provisions that differ between corporations, LLCs, and professional practices. It closes with the estate tax and funding questions that determine whether the agreement's price will be respected and whether the money to pay it will actually be there.
Design Patents v. Utility Patents: Key Differences
Design patents and utility patents are two entirely different legal instruments that happen to share the word "patent." A utility patent protects how an invention works under 35 U.S.C. 101; a design patent protects how an article of manufacture looks under 35 U.S.C. 171. They differ in term, claim structure, examination, cost, the test for infringement, and—dramatically—the damages a winner can recover. This guide walks a judge, a lawyer, and a curious inventor through every key difference, with worked examples, current authority including Egyptian Goddess, Samsung v. Apple, and the 2024 en banc LKQ decision, and practical guidance on when to file one, the other, or both.
Estate Planning for Business Owners: A Practical Guide
A business owner's estate plan has to solve three problems at once, and solving one badly can defeat the others. Control must pass to someone who can run the business. The estate must have liquidity to pay taxes and to equalize among heirs, without selling the business to raise it. And the transfer should be structured to minimize transfer tax while preserving the income tax basis step-up where that matters more. This guide works through each: getting a defensible valuation, structuring and funding a buy-sell agreement including what the Supreme Court's decision in Connelly changed about redemption arrangements, the estate tax framework and the deferral provisions available to closely held businesses, the lifetime transfer techniques that actually move value, how to treat children who work in the business and children who do not, and how to align the entity documents with the estate plan so they do not contradict each other.
Personal Jurisdiction Over Online and Foreign Defendants: From Zippo to Ford Motor
A company in Shenzhen sells 40 units into Illinois through a marketplace. A blogger in Ireland writes something defamatory about a California executive. A German manufacturer sells components to an American assembler who ships finished products everywhere. In each case the threshold question is the same and is genuinely hard: may a United States court exercise power over this defendant. This article explains the modern doctrine of personal jurisdiction as it applies to online and foreign defendants, beginning with the constitutional framework of International Shoe and the sharp separation of general and specific jurisdiction that the Supreme Court has enforced since Goodyear and Daimler. It covers the effects test of Calder as narrowed by Walden, the Zippo sliding scale for websites and why most circuits have moved past it, the express aiming and something more standards that replaced it, the meaning of Ford Motor's holding that a claim may arise out of or relate to forum contacts without strict causation, and Mallory's revival of consent by corporate registration. It then addresses the machinery: state long-arm statutes, the federal long-arm of Rule 4(k)(2), jurisdictional discovery, waiver under Rule 12, and the practicalities of suing defendants abroad. It closes with strategy for plaintiffs and defendants, a worked example, an FAQ, and related reading.
AI-Generated Inventions: Who Owns What the Machine Creates?
Every major patent system to consider the question has now answered the narrow one—an AI system cannot be named as an inventor—but the commercially decisive question of how much human contribution an AI-assisted invention requires is still in motion. This article traces the DABUS litigation across the United States, United Kingdom, Europe, Australia, and beyond; explains the conception and joint-inventorship doctrines that actually decide these cases; and follows the USPTO's sharp pivot from its February 2024 Pannu-factor framework to the November 2025 Revised Inventorship Guidance that recasts AI as an ordinary tool. It then works through the practical machinery—documentation, invention disclosure, workflow design, correction of inventorship, the duty of candor, ownership and assignment, Section 112 disclosure problems, trade-secret alternatives, and foreign-filing audits—and closes with the policy debate and an extended FAQ. Written for R&D-driven businesses, in-house counsel, and patent practitioners. It is general information, not legal advice.