Thomas P. Howard, LLC

Thomas P. Howard, LLC Colorado law firm specializing in intellectual property and business and commercial litigation

We provide free consultations to parties with potential legal issues. Feel free to email us to set up a time to talk at [email protected] or just call at 303-665-9845.

Whether an unauthorized use of a copyrighted work constitutes fair use, four statutory factors are considered: “(1) the ...
02/07/2024

Whether an unauthorized use of a copyrighted work constitutes fair use, four statutory factors are considered: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” …...

Fair Use Decision in the Fourth Circuit JamesJuo | February 7, 2024 Whether an unauthorized use of a copyrighted work constitutes fair use, four statutory factors are considered: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit edu...

For likelihood of confusion purposes, a mark’s strength “varies along a spectrum from very strong to very weak.” Joseph ...
02/06/2024

For likelihood of confusion purposes, a mark’s strength “varies along a spectrum from very strong to very weak.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (citing Palm Bay Imps., Inc. v. V***e Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005) (quoting…...

Distinguishing UNFORGETTABLE Travel Agency Services JamesJuo | February 6, 2024 For likelihood of confusion purposes, a mark’s strength “varies along a spectrum from very strong to very weak.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Ci...

“A term is merely descriptive if it immediately conveys knowledge of a quality, feature, function, or characteristic of ...
02/02/2024

“A term is merely descriptive if it immediately conveys knowledge of a quality, feature, function, or characteristic of the goods or services with which it is used.” In re Chamber of Commerce of the U.S., 675 F.3d 1297, 1300, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (quoting In re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed....

Merely Descriptive UNRIVALED LUXURY for Cruise Ship Services JamesJuo | February 2, 2024 “A term is merely descriptive if it immediately conveys knowledge of a quality, feature, function, or characteristic of the goods or services with which it is used.” In re Chamber of Commerce of the U.S., 67...

In opposition and cancellation proceedings before the Trademark Trial and Appeal Board (“TTAB”), subpoenas for witness t...
02/01/2024

In opposition and cancellation proceedings before the Trademark Trial and Appeal Board (“TTAB”), subpoenas for witness testimony sometimes are necessary. Under 35 U.S.C. § 24, "the clerk of any United States court for the district wherein testimony is to be taken for use in any contested case in the Patent and Trademark Office shall, upon the application of any party thereto, issue a subpoena for any witness residing or being within the district."...

Administrative Deposition Subpoenas for TTAB Proceedings JamesJuo | February 1, 2024 In opposition and cancellation proceedings before the Trademark Trial and Appeal Board (“TTAB”), subpoenas for witness testimony sometimes are necessary. Under 35 U.S.C. § 24, “the clerk of any United States ...

Two key considerations for likelihood of confusion are the similarities between the marks and the relatedness of the goo...
01/31/2024

Two key considerations for likelihood of confusion are the similarities between the marks and the relatedness of the goods. See Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus … on dispositive factors, such as similarity of the marks and relatedness of the goods.’”)....

CHILL that Hard Seltzer Related to Beer JamesJuo | January 31, 2024 Two key considerations for likelihood of confusion are the similarities between the marks and the relatedness of the goods. See Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002) (“The ...

The District of Colorado has consolidated two trade secret lawsuits regarding the alleged theft of Crocs’ trade secrets ...
01/29/2024

The District of Colorado has consolidated two trade secret lawsuits regarding the alleged theft of Crocs’ trade secrets to create a competitor company, Joybees, in Crocs, Inc. v. Joybees, Inc., Nos. 21-cv-2859 & 23-cv-01719 (D. Colo. Jan. 25, 2024). The protective order (“PO”) in the earlier-filed lawsuit stated that a party may “use” protected material “in connection with this case only for prosecuting, defending, or attempting to settle this litigation.”...

Lawsuit Based on Discovery in Another Lawsuit, Then Consolidation JamesJuo | January 29, 2024 The District of Colorado has consolidated two trade secret lawsuits regarding the alleged theft of Crocs’ trade secrets to create a competitor company, Joybees, in Crocs, Inc. v. Joybees, Inc., Nos. 21-cv...

Actual confusion is often called the best evidence of likelihood of confusion for trademark infringement. See King of th...
01/26/2024

Actual confusion is often called the best evidence of likelihood of confusion for trademark infringement. See King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1091 (10th Cir. 1999) (actual confusion is often considered the best evidence of likelihood of confusion); Water P*k, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1144 (10th Cir. 2013) (“such empirical data can be a reality check on the more theoretical analysis under the other factors”); see also…...

Misdelivered Packages and Mistaken Phone Calls Showing Minimal Actual Confusion JamesJuo | January 26, 2024 Actual confusion is often called the best evidence of likelihood of confusion for trademark infringement. See King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1091 (10th Cir...

Section 2(e)(1) of the Lanham Act, 15 U.S.C. § 1052(e)(1), prohibits registration on the Principal Register of designati...
01/25/2024

Section 2(e)(1) of the Lanham Act, 15 U.S.C. § 1052(e)(1), prohibits registration on the Principal Register of designations that are deceptively misdescriptive of the goods or services to which they are applied, absent a showing of acquired distinctiveness under Section 2(f). See In re Hinton, 116 USPQ2d 1051, 1051-52 (TTAB 2015) (finding “THCTea” deceptively misdescriptive of “tea-based beverages” not containing THC); …...

Going From Merely Descriptive to Deceptively Misdescriptive JamesJuo | January 25, 2024 Section 2(e)(1) of the Lanham Act, 15 U.S.C. § 1052(e)(1), prohibits registration on the Principal Register of designations that are deceptively misdescriptive of the goods or services to which they are applied,...

On January 22, 2024, the Federal Circuit re-designated In re GO & Associates, LLC, No. 2022-1961, — F.4th — (Fed. Cir. N...
01/24/2024

On January 22, 2024, the Federal Circuit re-designated In re GO & Associates, LLC, No. 2022-1961, — F.4th — (Fed. Cir. Nov. 14, 2023) as precedential, as requested by the USPTO under Fed. Cir. R. 32.1(e). The Federal Circuit had affirmed a refusal to register the proposed mark EVERBODY VS RACISM for failure to function as a source-indicating trademark. The trademark application had identified tote bags and various clothing items, as well as the services of "promoting public interest and awareness of the need for racial reconciliation and encouraging people to know their neighbor and then affect change in their own sphere of influence."...

Informational EVERBODY VS RACISM Fails to Function as a Trademark JamesJuo | January 24, 2024 On January 22, 2024, the Federal Circuit re-designated In re GO & Associates, LLC, No. 2022-1961, — F.4th — (Fed. Cir. Nov. 14, 2023) as precedential, as requested by the USPTO under Fed. Cir. R. 32.1(e...

Whether an agreement includes an automatic assignment of patent rights or is merely a promise to assign, depends on the ...
01/23/2024

Whether an agreement includes an automatic assignment of patent rights or is merely a promise to assign, depends on the contract language. See Abraxis Bioscience, Inc. v. Navinta LLC, 625 F.3d 1359, 1364 (Fed. Cir. 2010). In Roku v. ITC, No. 22-1386, — F.4th — (Fed. Cir. Jan. 19, 2024), there were two agreements at issue. The 2004 agreement stated that inventions created by Mr....

Present Conveyance Rather Than a Promise to Assign Depending on the Contract Language JamesJuo | January 23, 2024 Whether an agreement includes an automatic assignment of patent rights or is merely a promise to assign, depends on the contract language. See Abraxis Bioscience, Inc. v. Navinta LLC, 62...

Does a business or organization-related social media account belong to the business entity or to the individual who crea...
01/22/2024

Does a business or organization-related social media account belong to the business entity or to the individual who created it? The Second Circuit has held that this novel legal question should be answered based on whether the person who created the social media account used her personal information and for her personal use. JLM Couture Inc. v. Gutman, Nos. 21-2535 and 22-1694, — F.4th — (2d Cir....

Owning Social-Media Accounts JamesJuo | January 22, 2024 Does a business or organization-related social media account belong to the business entity or to the individual who created it? The Second Circuit has held that this novel legal question should be answered based on whether the person who creat...

GS Holistic manufactures and distributes a glass gravity infuser under the brand name Stündenglass, the other is a line ...
01/19/2024

GS Holistic manufactures and distributes a glass gravity infuser under the brand name Stündenglass, the other is a line of portable hand-held vaporizers under the G Pen brand. In July and August of 2023, GS Holistic filed more than 50 nearly identical small-dollar trademark infringement cases against small owners of smoke/head shops or v**e shops in federal court in the District of Colorado....

Staying All But One in Colorado JamesJuo | January 19, 2024 GS Holistic manufactures and distributes a glass gravity infuser under the brand name Stündenglass, the other is a line of portable hand-held vaporizers under the G Pen brand. In July and August of 2023, GS Holistic filed more than 50 near...

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