Pryor Cashman Partner Dyan Finguerra-DuCharme, co-chair of the Trademark Practice, contributed to IPWatchdog's roundup of what intellectual property professionals are thankful for as 2023 comes to a close.
In "'I Want to Thank You': Who and What IP Stakeholders are Giving Thanks for This Year," Dyan provides an overview of the year's trademark litigation and why she's happy with some key IP decisions:
I am thankful for the continued development of jurisprudence concerning the balance between the First Amendment and the enforcement of trademarks. 2023 saw many different contexts in which the First Amendment clashed with federal trademark law, with many decisions favoring trademark law over the First Amendment defense. In a case involving parody, SCOTUS set some limits on the reach of Rogers v. Grimaldi — in Jack Daniels, SCOTUS determined that the Rogers test does not apply where the alleged parody is used specifically as a trademark. The district court in Yuga Labs also took aim at the First Amendment / Rogers defense, finding that defendants' sale of NFTs does not express artistic ideas or critical commentary. SCOTUS has another opportunity to assess the balance between the First Amendment with trademark law when it rules this winter on whether the U.S. Patent and Trademark Office's refusal of registration of the phrase TRUMP TOO SMALL (for use on apparel) violates the free speech clause. The Trademark Office's decision was upheld by the Federal Circuit based on federal law that prohibits registering a mark that identifies a living individual without the person's consent. The Supreme Court will determine whether the federal law violates the First Amendment when the mark criticizes a public or government official or whether the law is a reasonable restriction protecting individual and consumer rights.
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