Friday, January 19, 2018

Federal appeals court vacates decision to cancel Washington Redskins' trademark

The US Court of Appeals for the Fourth Circuit on Thursday vacated [text, PDF] the judgment of the district court that had canceled the Washington Redskins' [official website] trademark registrations.

The judgment vacated the holding in Pro Football, Inc. v. Blackhorse [order], which stated that "Section 2(a) of the Lanham Act [text, PDF] does not implicate the First Amendment…[and] the federal trademark registration program is a government speech and is therefore exempt from First Amendment scrutiny."

The Fourth Circuit's decision stemmed from Matal v. Tam [text, PDF], a US Supreme Court case decided [JURIST report] last June. The case involved a band whose application for trademarking their name was denied by the Patent and Trademark Office [official website] under a Lanham Act provision referred to as the "disparaging clause" that prohibited the registration of trademarks that may "disparage ... or bring ... into contemp[t] or disrepute" any "persons, living or dead."

The Supreme Court held that the disparagement clause violates the Free Speech Clause of the First Amendment.

"If federal registration makes a trademark government speech and thus eliminates all First Amendment protection, would the registration of the copyright for a book produce a similar transformation?... Trademarks are private, not government, speech," stated Justice Alito.

As the district court's decision in Pro Football, Inc. v. Blackhorse was predicated upon the disparagement clause, the court of appeals was bound by judicial deference to the Supreme Court, and the Redskins' trademark registration restrictions had to be removed.

The case is now remanded for further proceedings.

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Thursday, January 18, 2018

DOJ introduces new immigration court policies

The US Department of Justice (DOJ) [official website] issued a memo [text, PDF] Wednesday outlining policy changes to help combat the caseload backup throughout immigration courts over the past few years.

This memo seeks to address the former policies that added confusion and ambiguity to the immigration court process and according to DOJ spokesperson Devin O'Malley, "contribute[d] to a three-fold increase of the courts' pending caseload."

For example, the previous administration eliminated court-based benchmarks for non-detained cases and the subsequent caseload began to increase dramatically.

Other policy changes included prioritizing simpler cases that could be completed in a short period of time over those that needed more time and resources. O'Malley stated, this is "immigration court equivalent of fiddling while Rome burned."

In addition, according to the DOJ's memo, less than 10 percent of cases currently pending before the courts meet the standard definition of "priority." This statistic implies a lack of priority in completing the other 600,000 cases currently before the court.

In order to reestablish efficiency, some of the performance measures in the memo include, 85 percent of non-status detained removal cases be completed within 60 days of initial filing, 85 percent of all motions should be heard within 40 days of filing and 90 percent of custody determinations be completed within 14 days of request.

Concerns over the importance of adjudicating immigration cases reiterates Attorney General Jeff Session's larger plan from his memo [text, PDF] issued late last year addressing the importance to "serve the national interest by applying those laws as enacted, irrespective of our personal policy preferences."

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Supreme Court hears oral arguments on procedural rule, military judges holding multiple offices

The US Supreme Court heard oral arguments in two cases Tuesday.

Hall v. Hall questions which judgments are final under Rule 42 [materials] of the Federal Rules of Civil Procedure. Rule 42 refers to the consolidation of cases versus separate trials. If actions involve a common question of law or fact, sometimes courts can join a hearing or trial, consolidate the actions, or avoid unnecessary cost or delay; however, sometimes it makes sense to keep them separate for prejudice,

Dalmazzi v. United States [transcript, PDF], consolidated with two other cases, considers the effect of a rule that says military judges cannot hold multiple offices. After President Barack Obama nominated and the Senate confirmed Colonel Martin Mitchell as a judge of the US Court of Military Commission Review (CMCR), Mitchell continued to serve on the US Air Force Court of Criminal Appeals (AFCCA) [official websites]. The US Court of Appeals for the Armed Forces (CAAF) rejected as moot the challenge to Mitchell's continued service on the AFCCA. The case questions whether the court of appeals erred in holding that the claims were moot, as well as whether Mitchell's service on the CMCR disqualified him from continuing to serve on the AFCCA, and if the simultaneous service on both courts was a violation of the Appointments Clause of the Constitution.

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Wednesday, January 17, 2018

EU Court revives Starbucks's trademark infringement claim

The EU General Court [official website] on Tuesday reinstated [decision, PDF] a four-year-old trademark infringement complaint filed by Starbucks[corporate website] against a Belgian coffeehouse whose musical-note signage is accused of infringing the iconic mermaid logo.

Hasmik Nersesyan filed an application for registration of an EU trademark with the European Union Intellectual Property Office (EUIPO) [official website] in September 2013 pursuant to Council Regulation (EC) No 207/2009 [text, PDF]. Post publication of the trademark in the Community Trademarks Bulletin, Starbucks filed a notice of opposition to the application in February 2014 pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001 [text, PDF]).

The trademark concerned a circular emblem having the words "Coffee Rocks," the text of which, like the Starbucks logo, appears in bold capital letters surrounding an image. However, the image portrays a musical note fashioned out of a coffee bean in place of a mermaid.

The Opposition Division rejected Starbucks's opposition in February 2015, and the Fourth Board of Appeal of EUIPO dismissed the appeal taking the view that the two logos were conceptually dissimilar, and "differed in their distinctive and dominant elements, namely the word ‘rocks’ and the devices of coffee bean-shaped musical notes, on the one hand, and the word ‘starbucks’ and the figurative element of a mermaid, on the other hand." Thus, the Board of Appeal concluded that Nersesyan's logo did not have even a "low degree of similarity" with that of Starbucks.

On appeal to the EU General Court, Starbucks argued that the applied-for mark containing the text and the circular emblem "reproduces the majority of the figurative elements of the reputed Starbucks Coffee logo and that those elements are in the same position" and that "the concentric circles in the mark applied for are highly similar" to those used by Starbucks in its earlier logos. Starbucks further argued that "the word elements and icons used in the mark

applied for are positioned in a highly similar manner, in a font which is identical to that in the Starbucks Coffee logo."

Noting that there are three sets of visual similarities between the signs at issue, the court agreed with Starbucks concluding that:

the similarity linked to the general appearance of the signs at issue is strengthened, first, by the use of the same colours, black and white, which highlight the central element, the band which surrounds it and the elements reproduced in that band, and, secondly, by the use of the same font for the word elements ‘starbucks coffee’ and ‘coffee rocks’ ... Furthermore, as the applicant submits and in contrast to EUIPO’s assessment, the ending ‘rocks’ may be regarded as phonetically similar to the ending ‘bucks’ on account of the relevant English-speaking public’s pronunciation of the letters ‘o’ and ‘u’ ... In the present case, it must be held that the Board of Appeal, having erred in ruling out any similarity — even a low degree of similarity — between the marks, erred in not carrying out an overall assessment of the likelihood of confusion.

The EU General Court annulled the decision of the Board of Appeal, which would mean that Starbucks would now be able to proceed with its claim.

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