Fashion and apparel have long existed in a cloud of copyright confusion. Clothing often incorporates design elements, which may be protectable, and functional elements, which aren’t. The U.S. Supreme Court has now established a two-part test intended to resolve “widespread disagreement” regarding copyright protection for such “industrial designs.”
Manufacturers that let their distributors use their unregistered trademarks may later find themselves in a fight over the marks’ ownership. This article highlights how one federal court of appeals recently addressed such ownership disputes and adopted a different test for determining ownership of common law trademarks where there is no agreement addressing the issue.
The dust has settled on the Supreme Court’s May 2017 TC Heartland decision that a domestic corporation “resides” only in the state of incorporation under the patent venue statute—28 U.S.C. § 1400(b). Yet despite this clarity, a new issue has emerged: If a defendant failed to raise the defense of improper venue in district court because it was not available before TC Heartland, did they inadvertently waive it?