This writer will be moderating a panel on the Tiffany v. Costco case (LAW OF FASHION commentary here and here) at his alma mater, Columbia Law School, this coming Monday, April 8th, from 6:30 to 7:30 P.M.  The panelists will include:

• Angela Byun, Senior Director of Business Affairs and International Editorial Assets & Rights, Condé Nast

• Laurie Gentile, Vice President & Associate General Counsel, The Jones Group Inc.

• David Jacoby, Litigation Partner at Schiff Hardin LLP

• Lesley Moradian, In-House Trademark Counsel, The Estée Lauder Companies

• Judith Roth, Of Counsel, Schiff Hardin LLP

This writer, one Charles E. Colman, is excited to be giving a 1.5 hour-ish CLE on copyright protection for fashion design under U.S. law TOMORROW, 3/28/13, at 10 A.M. (NYC).  The course agenda and registration information are posted on Lawline's website.

[UPDATE (4/3/13): The video of the CLE has been edited and reposted on the Lawline website.  Disclaimer: The occasional stock photos of courtrooms, fashion design studios, etc., were added without my knowledge; please disregard...]

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Legislative resources can be found here ("laws passed in the United States [from 1783 to 1976] relating to copyright") and here ("full text of all versions of the Copyright Act of the United States from the 1909 Act to the present").

As regular readers of the blog are likely aware, this writer is a zealous advocate of the copyright / trademark misuse doctrines.  (Yes, I will finish one or both of the articles at the above links, once I start my job at NYU Law School this June: see the end of this January 2013 LOF post.)  So while most interested parties were -- quite appropriately -- focusing on the "fair use" analysis in this week's AP v. Meltwater decision, I went straight to page 72 of the opinion to read what Judge Denise Cote had to say about the defendants' invocation of the "copyright misuse" defense...

C. Scott Hemphill & Tim Wu, Parallel Exclusion, 122 Yale L.J. 1182 (2013) [available at SSRN]

This case, Macy's v. Strategic Marks, LLC, is worth following in order to gain an understanding of potential pitfalls in "intent-to-use" trademark applications, as well as certain issues surrounding "heritage" brands.  The U.S. District Court for the Northern District of California denied Macy's' motion for partial summary judgment in the case this week, writing:

"... Keeping in mind the Ninth Circuit's instruction that the 'intensely factual nature of trademark disputes' means that summary judgment 'is generally disfavored in the trademark arena,' [argh!] and drawing all inferences in the non-movant Defendant's favor, the Court finds that there are genuine, disputed issues of material fact as to the definitions of Defendant's services.... Specifically, the parties' dispute over the definitions of 'retail' and 'on-line'in Defendant's [Statements of Use submitted to the Trademark Office] could reasonably be resolved in favor of either party.   The Court also finds that there are genuine, disputed issues concerning whether, under the Ninth Circuit's 'totality of circumstances' standard, Defendant's sales- and non-sales-related activities meet the 'use in commerce' requirement for service mark registration...."

As an advocate of early dismissal of questionable trademark infringement lawsuits, my initial reaction to this unpublished Ninth Circuit ruling is, well, unfavorable.  (Of course, I'd probably feel differently if I had gone to the trouble and expense of obtaining a trademark registration and wanted "my day in court.")  The Ninth Circuit's brief opinion is embedded below, followed by the district court decision it reversed.

(On a side note, purportedly "non-precedential" decisions are uncool.  And possibly unconstitutional.  While I recognize that there are arguments in favor of the practice, it just seems intuitively wrong for a court to be able to declare certain of its opinions binding and others not.  What does that mean? That the court put less thought into this particular case? That the court isn't quite sure it got this one right?  Oh well, one battle at a time.)