• What is a Confidentiality Agreement and Why are they So Important?
    in: Business, confidential information, Confidentiality, confidentiality agreement, confidentiality agreements, contract, Contracts 101, Educational Information for Inventors, Inventors Information, IP News, IPWatchdog Articles, IPWatchdog.com Articles, nda, nondisclosure agreements, secrecy requirement, trade secret, Trade Secret Law, trade secrets  | 

    What is a Confidentiality Agreement and Why are they So Important?

    A Confidentiality Agreement, which is also known as non-disclosure agreement or simply as an NDA, is simply a contract between two or more parties where the subject of the agreement is a promise that information conveyed will be maintained in secrecy…..

  • Federal Circuits invalidates patent covering starting a session on one communication-enabled device and transferring it to another
    in: appeals, CAFC, courts, CRFD Research v. v. Matal, DISH, echostar, Federal Circuit, Federal Circuit Review, hulu, Inter Partes, inter partes review, IP News, IPR, IPWatchdog Articles, IPWatchdog.com Articles, Iron Dome, Judge Haldane Robert Mayer, Judge Kathleen O'Malley, Judge Pauline Newman, netflix, non obviousness, Patently-O, patents, Post Grant Procedures, Spotify, U.S. Patent No. 7191233  | 

    Federal Circuits invalidates patent covering starting a session on one communication-enabled device and transferring it to another

    The Federal Circuit decision in the case of CRFD Research v. Matal resolves three appeals involving a single patent: CRFD’s ‘233 patent describing methods and systems that allow a user to begin a session on one communication-enabled device and transfer it to another… Lack of anticipation based on a single reference does not preclude a finding of obviousness based on the same reference. Even if a reference’s is insufficient for anticipation, which is a question of fact, that same reference…

  • CAFC addresses immoral/scandalous marks in Brunetti; 2(a) bar found unconstitutional
    in: 未分類  | 

    CAFC addresses immoral/scandalous marks in Brunetti; 2(a) bar found unconstitutional

    From the opening:


    Erik Brunetti appeals from the decision of the Trademark
    Trial and Appeal Board (“Board”) affirming the
    examining attorney’s refusal to register the mark FUCT
    because it comprises immoral or scandalous matter under
    15 U.S.C. § 1052(a) (“§ 2(a)”). We hold substantial evidence
    supports the Board’s findings and it did not err
    concluding the mark comprises immoral or scandalous
    matter. We conclude, however, that § 2(a)’s bar on registering
    immoral or scandalous marks is an unconstitutional
    restriction of free speech. We therefore reverse the
    Board’s holding that Mr. Brunetti’s mark is unregistrable.

    Yes, Tam is cited:


    When Mr. Brunetti filed his appeal, his constitutional
    argument was foreclosed by binding precedent. In
    McGinley, our predecessor court held the refusal to register
    a mark under § 2(a) does not bar the applicant from
    using the mark, and therefore does not implicate the First
    Amendment. 660 F.2d at 484. Commentators heavily
    criticized McGinley and our continued reliance on it,
    particularly in light of the many changes to First
    Amendment jurisprudence over the last thirty years. In
    re Tam, 808 F.3d 1321, 1333–34 & n.4 (Fed. Cir. 2015) (en
    banc). We reconsidered McGinley en banc in Tam, which
    held the disparagement provision of § 2(a) unconstitutional
    under the First Amendment because it discriminated
    on the basis of content, message, and viewpoint. Id.
    at 1334–37, 1358. We held that, although trademarks
    serve a commercial purpose as source identifiers in the
    marketplace, the disparagement provision of § 2(a) related
    to the expressive character of marks, not their commercial
    purpose. Id. at 1337–39. As either a contentbased
    or viewpoint-based regulation of expressive speech,
    the disparagement provision was subject to strict scrutiny.
    Id. at 1339. It was undisputed that the measure did
    not survive such scrutiny. Id.

    What the government argued:


    The government concedes that § 2(a)’s bar on registering
    immoral or scandalous marks is a content-based
    restriction on speech. Oral Arg. at 11:57–12:05. And the
    government does not assert that the immoral or scandalous
    provision survives strict scrutiny review. Instead, the
    government contends § 2(a)’s content-based bar on registering
    immoral or scandalous marks does not implicate
    the First Amendment because trademark registration is
    either a government subsidy program or limited public
    forum. Gov’t Letter Br. 14, In re Brunetti, No. 15-1109,
    Docket No. 60 (Fed. Cir. July 20, 2017); Oral Arg.
    at 12:06–21, 18:15–39. Alternatively, the government
    argues trademarks are commercial speech implicating
    only the intermediate level of scrutiny set forth in Central
    Hudson. Gov’t Letter Br. 15, In re Brunetti, No. 15-1109,
    Docket No. 60 (Fed. Cir. July 20, 2017); Oral Arg.
    at 35:05–17. Under a less exacting degree of scrutiny, the
    government argues the immoral or scandalous provision
    is an appropriate content-based restriction tailored to
    substantial government interests. We consider these
    arguments in turn.

    Footnote 1 is of interest:


    The government maintains that our en banc decision
    in Tam is not binding on this panel in light of the
    Supreme Court’s decision in Tam. Oral Arg. at 12:23–
    13:36, 15:43–54. We question the force of this assertion
    because the Supreme Court did not reverse or otherwise
    cast doubt on the continuing validity of our government
    subsidy analysis and other aspects of our decision in Tam.
    See Chen v. Allstate Ins. Co., 819 F.3d 1136, 1138 n.1 (9th
    Cir. 2016); Balintulo v. Ford Motor Co., 796 F.3d 160, 166
    n.28 (2d Cir. 2015). Because we independently reach the
    same conclusion as the en banc court, we need not decide
    whether that holding continues to bind future panel
    decisions in this circuit.

    As to the standard of review:


    As in the case of disparaging marks, the
    PTO’s rejections under § 2(a)’s bar on immoral or scandalous
    marks are necessarily based in the government’s
    belief that the rejected mark conveys an expressive message—namely,
    a message that is scandalous or offensive
    to a substantial composite of the general population. See
    Tam, 808 F.3d at 1338. Section 2(a) regulates the expressive
    components of speech, not the commercial components
    of speech, and as such it should be subject to strict
    scrutiny. See Sorrell v. IMS Health Inc., 564 U.S.
    552, 565 (2011). There is no dispute that § 2(a)’s bar on
    the registration of immoral or scandalous marks is unconstitutional
    if strict scrutiny applies.

    The Hustler case is cited:

    Second, Supreme Court precedent makes clear that
    the government’s general interest in protecting the public
    from marks it deems “off-putting,” whether to protect the
    general public or the government itself, is not a substantial
    interest justifying broad suppression of speech. “[T]he
    fact that society may find speech offensive is not a sufficient
    reason for suppressing it.” Hustler Magazine, Inc. v.
    Falwell, 485 U.S. 46, 55 (1988); Bolger v. Youngs Drug
    Prods. Corp., 463 U.S. 60, 71 (1983) (“At least where
    obscenity is not involved, we have consistently held that
    the fact that protected speech may be offensive to some
    does not justify its suppression.” (citation omitted));
    Cohen v. California, 403 U.S. 15, 21 (1971) (“[T]he mere
    presumed presence of unwitting listeners or viewers does
    not serve automatically to justify curtailing all speech
    capable of giving offense.”); Cox, 379 U.S. at 551
    (“[C]onstitutional rights may not be denied simply because
    of hostility to their assertion or exercise.”). “Where
    the designed benefit of a content-based speech restriction
    is to shield the sensibilities of listeners, the general rule is
    that the right of expression prevails, even where no less
    restrictive alternative exists.” Playboy, 529 U.S. at 813.

    The Supreme Court’s decision in Tam supports our
    conclusion that the government’s interest in protecting
    the public from off-putting marks is an inadequate government
    interest for First Amendment purposes.

    The George Carlin case was cited:


    Finally, the government does not have a substantial
    interest in protecting the public from scandalousness and
    profanities. The government attempts to justify this
    interest by pointing to the Supreme Court’s decision in
    FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In
    Pacifica, the Supreme Court upheld the constitutionality
    of the FCC’s declaratory order determining that an afternoon
    radio broadcast of George Carlin’s “Filthy Words”
    monologue was indecent and potentially sanctionable. Id.
    at 730–32. The Court explained “references to excretory
    and sexual material . . . surely lie at the periphery of First
    Amendment concern.” Id. at 742. The Court justified the
    FCC’s order, however, because radio broadcasting has “a
    uniquely pervasive presence in the lives of all Americans”
    and is “uniquely accessible to children, even those too
    young to read,” confronting Americans “in the privacy of
    the home, where the individual’s right to be left alone
    plainly outweighs the First Amendment rights of an
    intruder.” Id. at 749. The Court stressed: “It is appropriate
    to emphasize the narrowness of our holding.” Id. at
    750. S

    The matter of inconsistency arose:


    Finally, no matter the government’s interest, it cannot
    meet the fourth prong of Central Hudson. The PTO’s
    inconsistent application of the immoral or scandalous
    provision creates an “uncertainty [that] undermines the
    likelihood that the [provision] has been carefully tailored.”
    See Reno, 521 U.S. at 871. Nearly identical marks have
    been approved by one examining attorney and rejected as
    scandalous or immoral by another. The PTO registered
    the mark FUGLY for use on clothing, but refused registration
    for use on alcoholic beverages. Compare Reg.
    No. 5,135,615, with Appl. No. 78,866,347. See also
    COCAINE, Appl. No. 78,829,207 (rejected), COCAINE,
    Reg. No. 1,340,874 (accepted). The PTO registered NO
    BS! BRASS, Reg. No. Reg. No. 5,053,827, for entertainment
    services but rejected NO BS ZONE, Appl.
    No. 76,626,390, for internet training. NO $#!+, Appl.
    No. 85,855,449, was rejected, but $#*! MY DAD SAYS,
    Reg. No. 4,142,745, was allowed. See also ROLL TURD,
    Appl. No. 86,448,988 (rejected), TURD HERDERS, Reg.
    No. 5,180,286 (registered). Although the language in
    these marks is offensive, we cannot discern any pattern
    indicating when the incorporation of an offensive term
    into a mark will serve as a bar to registration and when it
    will not.

    There was an opinion by Judge DYK concurring in the judgment.