Trademark Law

The American IP System

Short video featuring Adam Mossoff
Adam Mossoff June 15, 2016

Adam Mossoff, Professor of Law at the Antonin Scalia Law School, George Mason University, gives a brief overview of the United States' intellectual property system. He discusses the United States' innovative manner of treating patents and trademarks as property rights. He also explains how the United States has influenced many modern countries' approaches.

Cuozzo Speed Technologies, LLC v. Lee - Post-Argument SCOTUScast

SCOTUScast 5-12-16 featuring Gregory Dolin
Gregory Dolin May 12, 2016

On April 25, 2016, the Supreme Court heard oral arguments in Cuozzo Speed Technologies, LLC v. Lee. In 2011 the America Invents Act created an expedited procedure, known as inter partes review, to provide a cost-effective alternative to litigation for resolving certain challenges to patent validity. The Patent Trial and Appeal Board, contained within the U.S. Patent and Trademark Office (PTO), hears these disputes rather than a federal district court. When construing patent claims, the Board applies a “broadest reasonable interpretation” standard rather than the “plain and ordinary meaning” standard typically applied by federal courts. 

Here, Cuozzo Speed Technologies, LLC. (Cuozzo) owns a speed limit indicator patent. Garmin International, Inc. (Garmin) petitioned the Board for inter partes review (IPR) of claims regarding the patent. The Board found that certain claims were unpatentable, and denied Cuozzo’s request to replace those claims with several others. Cuozzo appealed the Board’s decision to the U.S. Court of Appeals for the Federal Circuit, which (1) held that it lacked authority to review the PTO’s decision to institute IPR, and (2) affirmed the Board’s final determination, finding no error in its application of the “broadest reasonable interpretation” standard.

There are two questions before the Supreme Court: (1) Whether the Federal Circuit erred in holding that the Board may, in IPR proceedings, construe claims according to their broadest reasonable interpretation rather than their plain and ordinary meaning; and (2) whether the Federal Circuit erred in holding that, even if the Board exceeds its statutory authority in instituting an IPR proceeding, the decision to institute the IPR proceeding is judicially unreviewable.

To discuss the case, we have Gregory Dolin, who is Assistant Professor of Law and Co-Director, Center for Medicine and Law at University of Baltimore School of Law.

The Role of Congress and Executive Agencies in 21st Century IP Regimes - Event Audio/Video

2015 National Lawyers Convention
Sandra Aistars, John F. Duffy, David S. Olson, Arti K. Rai, Thomas B. Griffith November 19, 2015

The Constitution specifically vests power in Congress to grant authors and inventors exclusive rights in their writings and inventions. The first Congress passed laws setting forth the requirements and procedures for granting patents and copyrights. In these early days, copyrights were granted for registered works, and Thomas Jefferson himself examined patents as a member of President George Washington's cabinet. As IP laws developed, however, they gave substantial deference to both the Patent and Trademark Office (PTO), and the Copyright Office, on matters of reviewing, granting, limiting, and defining IP rights. These agencies have come to wield significant influence over the U.S. IP regime. Recently, and notwithstanding its delegations of power, Congress has been particularly active in passing new patent and copyright legislation. Sometimes Congress specifies how the law shall be interpreted and administered, and other times it delegates this to the relevant agencies, or to the courts. By considering specific examples, this panel will examine the role of Congress, Congressional delegation, and executive agencies in crafting and administering our modern intellectual property systems.

Intellectual Property: The Role of Congress and Executive Agencies in 21st Century IP Regimes
11:00 a.m. – 12:30 p.m.
State Room

  • Prof. Sandra Aistars, Clinical Professor, George Mason School of Law and Sr. Scholar and Director, Copyright Policy & Research, Center for the Protection of Intellectual Property
  • Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
  • Prof. David S. Olson, Associate Professor, Boston College Law School
  • Prof. Arti K. Rai, Elvin R. Latty Professor of Law and co-Director, Duke Law Center for Innovation Policy
  • Moderator: Hon. Thomas B. Griffith, U.S. Court of Appeals, D.C. Circuit

The Mayflower Hotel
Washington, DC

Redskins Trademark in Court, and More - Podcast

Litigation Practice Group Podcast
Dwayne D. Sam, Ilya Shapiro October 26, 2015

Can the government police speech it thinks is offensive? The Lanham Act allows the government to deny trademark registration to "disparaging" speech. What does the First Amendment have to say about the government's ability to pick and choose among speech it doesn't like? Two pending appeals court cases will directly address this important question.

The U.S. Court of Appeals for the Fourth Circuit is scheduled to hear oral argument in Pro-Football, Inc. v. Blackhorse, a case challenging the REDSKINS trademark and, by extension, the constitutionality of § 2(a).

Meanwhile, in In re Tam, an Asian-American rock band called “The Slants” was denied trademark registration after the Patent and Trademark Office found the trademark disparaging to Asians. A panel of the U.S. Court of Appeals for the Federal Circuit affirmed the decision. But the en banc Federal Circuit—without being asked—decided to vacate that decision and consider whether § 2(a) violates the First Amendment.

Are we headed for a constitutional showdown over § 2(a) of the Lanham Act? Will the two appellate courts reach opposite decisions and invite Supreme Court review?


  • Dwayne D. Sam, Associate, Wiley Rein LLP
  • Ilya Shapiro, Senior Fellow in Constitutional Studies and Editor-In-Chief for Cato Supreme Court Review, Cato Institute

POM Wonderful LLC v. The Coca Cola Company - Post-Decision SCOTUScast

SCOTUScast 6-25-14 featuring William Kratzke
William Kratzke June 25, 2014

William KratzkeOn June 12, 2014, the Supreme Court heard oral argument in POM Wonderful LLC v. The Coca Cola Company. This case involves the Lanham Act, which allows individuals to sue for harms resulting from misleading representations of goods or services in commerce. The question in this case is whether a private party can bring a Lanham Act claim challenging a product label that complies with regulations under the Food, Drug, and Cosmetic Act.

In a unanimous opinion delivered by Justice Kennedy, the Court held that competitors may bring Lanham Act claims that challenge food and beverage labels regulated by the FDCA. Justice Breyer took no part in the consideration or decision of this case. The decision of the Ninth Circuit was reversed.

To discuss the case, we have Prof. William Kratzke, who is the Cecil C. Humphreys Professor of Law at the University of Memphis Cecil C. Humphreys School of Law.