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Trademarks are valuable tools for businesses since they allow a trademark holder to identify and distinguish its goods from those manufactured or sold by others. However, there are many issues to be aware of when seeking trademark protection.
This is the perfect time and environment in which to take a close look at your trademark portfolio. It is the time to be thankful for your brand’s position in the market and the investments you have made into searching, registering, maintaining, and enforcing your trademarks. But it is also the time to set goals and develop plans to make better use of your trademark portfolios.
According to a recent court ruling, Costco sold counterfeit diamond engagement rings bearing the Tiffany name and confused relevant consumers by using the word “Tiffany” in display case signage. The court rejected Costco’s fair use defense and assertion that Tiffany’s trademarks were invalid because they sought to prevent others from using the word “Tiffany” as a generic description of a type of ring setting. Under the ruling, Tiffany can now take Costco before a jury to seek damages, including recovery of Costco’s profits from the sale of the diamond rings and punitive damages.
Under the Federal Trade Commission (“FTC”) Act, advertising must be truthful and non-deceptive, advertisers must have evidence to back up their claims, and advertisements cannot be unfair. An advertisement is deceptive if it misleads reasonable consumers and is material to a consumer’s decision to purchase a product. An advertisement is unfair if it causes substantial unavoidable injury that is not outweighed by its benefit to consumers.
In the highly fractured Amgen v. Sandoz decision, the Federal Circuit, in part, concluded that the Biologics Price Competition and Innovation Act (“BPCIA”) patent resolution procedure was not mandatory, leaving open the distinct possibility that no biosimilar applicant will ever use the new biosimilar approval pathway.
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