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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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