Evelina Gentry

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Evelina Gentry advises clients with real estate, labor and employment, First Amendment, False Claims Act (FCA), products liability, and bankruptcy litigation disputes.

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TTAB Sustains WIRED Magazine’s § 2(d) Objection to Application to Register “WIRED” As A Mark for Clothing, But Not for Fitness Services

By Ira S. Sacks and Evelina Gentry on Posted in Trademarks, TTAB, USPTO
The Trademark Trial and Appeal Board (“TTAB”) sustained the objection of the publisher of the tech magazine WIRED (“Opposer”) to an Applicant’s (“Applicant”) bid to register the term “WIRED” for clothing but rejected its objection for fitness-related services. The Applicant sought registration for “WIRED” marks for fitness-related services and athletic clothing. The Opposer opposed the … Continue Reading

TTAB Rains on ‘Purple Rain’ Energy Drink Trademark Application

By Ira S. Sacks and Evelina Gentry on Posted in Trademarks, TTAB, USPTO
On August 23, 2022, the Trademark Trial and Appeal Board (“TTAB”) rejected on summary judgment JHO Intellectual Property Holdings’ (“Applicant”) application to register the mark “PURPLE RAIN” for a variety of nutritional supplements, dietary drinks, and energy bars (collectively, “Applicant’s Goods”). The TTAB found that the proposed mark falsely suggested a connection with the famous … Continue Reading

Municipal Takedown: TTAB Refuses to Register the County of Orange Logos

By Ira S. Sacks and Evelina Gentry on Posted in Trademarks, TTAB, USPTO
The Trademark Trial & Appeal Board (“TTAB”) affirmed the US Patent & Trademark Office’s (“PTO”) refusal to register two different logo marks filed by California’s County of Orange (“County”) on the ground that they constitute insignia of a municipality. In 2017, the County applied to register two logo marks. The application described one mark as … Continue Reading

If Warhol Isn’t Transformative, Redux, In The Supreme Court

By Ira S. Sacks and Evelina Gentry on Posted in Copyrights, IP Litigation, Supreme Court
On March 25, 2022, the Supreme Court agreed to consider whether Andy Warhol’s “Prince Series” sufficiently transforms Lynn Goldsmith’s 1981 photograph of Prince (the “Photograph”) to qualify for the Copyright Act’s fair use defense. As discussed in detail in our prior blog, at issue in this case is a series of silkscreen prints created by … Continue Reading

The Third Circuit Limits Preclusive Effect of the TTAB Rulings

By Ira S. Sacks and Evelina Gentry on Posted in Trademarks, TTAB
On September 17, 2021, the Third Circuit held in Beasley v. Howard that trademark cancellation proceedings before the Trademark Trial and Appeal Board (“TTAB”) do not have claim preclusive effect against trademark infringement lawsuits in federal district courts because of the TTAB’s limited jurisdiction. The case involves two musicians, David Beasley and William Howard, who … Continue Reading

If Warhol Isn’t Transformative, Who (or What) Is? The Second Circuit Finds Andy Warhol’s Prince Series Not Fair Use

By Ira S. Sacks and Evelina Gentry on Posted in Copyrights, IP Litigation
On March 26, 2021, the Second Circuit reversed a 2019 district court ruling and held that Andy Warhol’s “Prince Series” did not qualify as fair use of Lynn Goldsmith’s 1981 photograph of Prince (the “Photograph”).  The Court further concluded that the Prince Series works are substantially similar to the Goldsmith Photograph as a matter of law.… Continue Reading

Genericness is in the Eye of the Beholder, i.e., the Public: BOOKING.COM is a Protectable Trademark

By Ira S. Sacks and Evelina Gentry on Posted in Supreme Court, Trademarks, USPTO
On June 30, 2020, the U.S. Supreme Court (the “Court”), in an 8-1 decision, affirmed the Fourth Circuit’s holding that “BOOKING.COM” is a protectable trademark, thereby rejecting a sweeping rule that a protectable trademark cannot be created by adding “.com” to an otherwise generic term.… Continue Reading

After Almost 20 Years of Litigation, “Lucky” Finally Gets Lucky

By Ira S. Sacks and Evelina Gentry on Posted in Supreme Court, Trademarks
On May 14, 2020, the United States Supreme Court held in Lucky Brand Dungarees Inc., et al. v. Marcel Fashion Group Inc., that a party is not precluded from raising new defenses, when a subsequent lawsuit between the same parties challenges different conduct and raises different claims. As explained in our previous posts, Lucky Brand … Continue Reading

The Parameters of Generic Marks: Booking.com before the Supreme Court

By Ira S. Sacks and Evelina Gentry on Posted in Supreme Court, Trademarks, USPTO
The Lanham Act (“Act”) makes it clear that generic terms cannot be registered as trademarks. But can an online business create a protectable trademark by adding a generic top-level domain (e.g., “.com”) to an otherwise generic term? The Supreme Court will answer this question in USPTO v. Booking.com, No. 19-46. The legal battle between Booking.com … Continue Reading

States Cannot Copyright Annotated Versions of Legal Codes

By Ira S. Sacks and Evelina Gentry on Posted in Copyrights, Supreme Court
On April 27, 2020, the United States Supreme Court held, in Georgia et al. v. Public.Resource.Org., Inc., in a 5-4 decision, that copyright law does not protect annotations contained in the official annotated compilation of Georgia statutes. As explained in our prior blog, Georgia, like many states, offers a free version of its official statute, but … Continue Reading

Willfulness Is Not Required for Awarding Profits in Trademark Cases

By Ira S. Sacks and Evelina Gentry on Posted in Supreme Court, Trademarks
On April 23, 2020, the United States Supreme Court held in Romag Fasteners, Inc. v. Fossil Group, Inc., FKA Fossil, Inc., et al., that under the Lanham Act, a plaintiff is not required to show that a defendant willfully violated plaintiff’s trademark rights as a precondition to a profits award. As explained in our previous blog, … Continue Reading

Will the COVID-19 Pandemic Impact Your Ability to Secure an “Incontestable” Trademark?

By Mark S. Lafayette and Evelina Gentry on Posted in Trademarks, USPTO
Section 15 of the Lanham Act, subject to certain specified exceptions, provides that the right of an owner “to use [a] registered mark in commerce for the goods or services on or in connection with which such registered mark has been in continuous use for five consecutive years subsequent to the date of such registration and is … Continue Reading

Federal Circuit Colors Outside the Lines with a New Shade of Multi-Color Trademarks Protectability

By Ira S. Sacks and Evelina Gentry on Posted in Trademarks, TTAB, USPTO
On April 8, 2020, the Federal Circuit Court of Appeals (the “Federal Circuit”), in In Re Forney Industries Inc reversed the Trademark Trial and Appeal Board (the “Board”) and held that multicolor designs may be inherently distinctive when used on product packaging. The court further held that multicolor designs need not be used within a well-defined … Continue Reading

The Final Revenge of Queen Anne’s Revenge: State’s Use of Photographs Is Not Piracy

By Ira S. Sacks and Evelina Gentry on Posted in Copyrights, IP Litigation, Supreme Court
On March 23, 2020, in Allen v. Cooper, the Supreme Court held that Allen, who spent over two decades, photographing the shipwreck of Queen Anne’s Revenge, better known as the flagship for the pirate Blackbeard, cannot sue the State of North Carolina (“State”) for copyright infringement of his photographs. The Court’s decision was based on its … Continue Reading

After A Long Climb, Led Zeppelin Prevails In The Stairway To Heaven Copyright Battle

By Ira S. Sacks and Evelina Gentry on Posted in Copyrights
Nearly 40 years after Led Zeppelin released Stairway to Heaven – viewed by many as one of the greatest rock songs of all time – Led Zeppelin was sued for copyright infringement. The estate of guitarist Randy Wolfe, who composed Taurus in 1968, claimed that Led Zeppelin and its guitarist Jimmy Page and vocalist Robert … Continue Reading

Royal Palm Properties’ Trademark Gets Royal Treatment At The 11th Circuit

By Ira S. Sacks and Evelina Gentry on Posted in Trademarks
This trademark litigation arises out of a contentious real-estate rivalry in a very wealthy residential community called Royal Palm Yacht & Country Club in Boca Raton, Florida.  It presents a comprehensive overview of standards for trademark cancellation and for appeal from a judgment as a matter of law after a jury trial. Plaintiff Royal Palm … Continue Reading

Cert. Roundup:

By Ira S. Sacks and Evelina Gentry on Posted in IP Litigation, Patents, Supreme Court, Trademarks
ABA (as amicus) Asks the Supreme Court to Adopt a Flexible Rule for Recapture of Profits in Trademark Cases Intellectual Property Owners Association (as amicus) Argues That a Willfulness Requirement Is Consistent with the Statute and Principles of Equity The American Bar Association (“ABA”) filed an amicus brief with the Supreme Court in support of … Continue Reading

Cert. Roundup: Romag’s Opening Brief: Imposing a Willfulness Requirement to Recapture Profits is Inconsistent with Statute, Principles of Equity, and the Purposes of the Lanham Act

By Ira S. Sacks and Evelina Gentry on Posted in Patents, Supreme Court, Trademarks
In June 2019, the United States Supreme Court granted certiorari in Romag Fasteners Inc. v. Fossil Inc., et al., No. 18-1233. As set forth in our previous blog post, Romag Fasteners Inc. (“Romag”) seeks to have the Court resolve a longstanding circuit split on the issue: “[w]hether, under section 35 of the Lanham Act, 15 U.S.C. … Continue Reading

Lucky Opening Brief on Cert.: Second Circuit’s Novel “Defense Preclusion” Rule Turns a Blind Eye on Bedrock Preclusion Principles

By Ira S. Sacks and Evelina Gentry on Posted in Supreme Court, Trademarks
In June 2019, the United States Supreme Court granted certiorari in Lucky Brand Dungarees Inc., et al. v. Marcel Fashion Group Inc., No. 18-1086.  As set forth in our prior blog posts, Lucky Brand Dungarees Inc. and related companies (collectively, “Lucky”) seek a reversal of the Second Circuit Court of Appeal’s ruling that Lucky was … Continue Reading

Queen Anne’s Revenge?

By Ira S. Sacks and Evelina Gentry on Posted in Copyrights, Supreme Court
In June 2019, the United States Supreme Court granted certiorari in Allen v. Cooper, No. 18-877.  The case presents a question “whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act … in providing remedies for authors of original expression whose federal copyrights are infringed by States.”  Plaintiffs filed their Opening Brief … Continue Reading

Supreme Court Will Decide When Trademark Infringers May Be Ordered to Forfeit Profits

By Ira S. Sacks and Evelina Gentry on Posted in IP Litigation, Supreme Court, Trademarks
On Friday, June 28, 2019, the U.S. Supreme Court agreed to decide the circumstances necessary to support an award of a trademark infringer’s profits under section 35 of the Lanham Act, 15 U.S.C. § 1117(a). Romag Fasteners Inc. v. Fossil Inc., et al., No. 18-1233. The ruling hopefully will resolve a long-standing circuit split over … Continue Reading

Supreme Court to Rule on Copyright Protection of State Annotated Legal Codes

By Ira S. Sacks and Evelina Gentry on Posted in Copyrights, Supreme Court
On June 24, 2019, the U.S. Supreme Court granted certiorari to decide whether states can claim copyright protection in annotated codes. State of Georgia v. Public.Resource.Org, Inc., No. 18-1150. Annotated codes, in addition to the text of the statute, include summaries of judicial opinions, regulations, and attorney general opinions related to the statute. Georgia, like many … Continue Reading
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