Patent Litigation & Intellectual Property
Insights on design patent infringement and utility patent litigation from a variety of sources, including: Patentlyo, Intellectual Property Law Blog, The Ipkat, Trademarkology, Managing Intellectual Property, World Intellectual Property Review, and Law 360. If you’d like to chat about anything you see, feel free to reach out or connect with me on LinkedIn.
In a unique development in the world of trade marks, Crayola has recently secured legal protection for the distinctive smell of its crayons.
After a 6 year effort, the United States Patent and Trademark Office (USPTO) officially granted Crayola a trade mark for the scent described as “slightly earthy soap with pungent, leather-like clay undertones” in July 2024. This landmark decision allows Crayola to protect the aroma that has become synonymous with childhood creativity and school memories.
Cautionary Tale: When an Innovator Takes its Eye Off the Competition
How did the creator of the iconic round robot vacuum—which has sold more than 50 million units—get into this mess?
Although there’s of course more than one answer to that question, a major factor seems to have been an ill-fated focus on dreaming up ways to move beyond the vacuum into new product categories—all the while failing to keep up with new competitors in its core business.
A win for the little guy in a closely watched trademark case...
To be honest I get that one can't just own stripes, but Adidas' concerns seem legitimate in some of these designs. “I am proud to create a precedent that protects [designers’] ability to develop their own signatures and tell their own creative stories in a way that are true to their vision,” Thom Browne, the designer behind the eponymous brand, told Yahoo Finance. “David has prevailed over Goliath.”
Recent data points to subtle but noteworthy changes in USPTO practice.
The backlog of unexamined applications has risen sharply in recent years — reaching 804,658 applications in October 2024 which is a concerning increase from approximately 526,000 applications in early 2018. Pendency and backlog issues reached a crisis point in 2008, but we are now above that high point.
(Yeah that's too cute, but I'm going with it...) Recent litigation may shed light on the impact of the decision re: design patent obviousness.
In May, the Federal Circuit eliminated the long-standing test for design patent obviousness. In its place, the Federal Circuit emphasized a flexible approach to the design patent obviousness analysis, grounded in the Graham factors.1 This is a big change in design patent law. So how is LKQ impacting ongoing cases so far?
As we head into August, it seems like a good time to learn the fascinating design- and trademark litigation - history of America's most powerful frozen treat
The original rocket-shaped but confusingly named Bomb Pop was first invented in 1955 by D.S. “Doc” Abernathy and James S. Merritt, for Kansas City, Missouri's Merritt Foods. The iconic red, white, and blue stack was flavored cherry, lime, and blue raspberry. When Merritt Foods eventually shut down operations in 1991, Bomb Pop manufacturing was sold off to Iowa-based Wells Dairy/Wells Enterprises. The frozen confections are still made today in La Mars, Iowa.
Upending decades of continuity in the world of design patents, the United States Court of Appeals for the Federal Circuit (“CAFC”), sitting en banc in LKQ Corporation v. GM Global Technology Operations LLC, overturned the Rosen/Durling standard for obviousness of design patents.
In so doing, the CAFC outlined the new framework by which design patent obviousness is to be determined at the United States Patent & Trademark Office (“USPTO”) during examination and post-grant proceedings, as well as during district court litigation involving infringement or invalidity challenges of design patents.
A bakery manager in Michigan, he worked with Kellogg’s to create the snack which became a timeless American classic.
Not sure how I missed this... Honestly, I'd put the Pop Tart up there in the top 100 products ever. And Jerry Seinfeld is about to come out with a documentary on Pop Tarts, to the extent I needed any support for that opinion:-)
Great slideshow about two of my favorite things, old cars and branding... Highly recommended Friday read!
My annual holiday reminder that there is only one right way to install a toilet paper roll, as protected by a US patent issued just before Christmas 1891
Excellent overview of legal issues related to the use of fonts in graphic and industrial design... Many designers are too casual about this (I was once guilty myself, unintentionally)
Great follow up to last week's post about interior design trade dress... Here's an interesting case which just addressed trade dress functionality for candy shaped like the fruit flavor it represents