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Lil Nas X brings 666 “Satan” themed Nike Air Maxs’ to the market, and Nike sues for Trademark Infringement. Can Lil Nas X’s lawyers ensure his salvation? Well, that might depend on what you mean by salvation… Today on Stuff You Should Know about IP we cover the Trademark battle from hell.. Literally!

In this week’s episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri welcome special guest Jayne Durden for a conversation about counterfeited goods. Trademark infringement involves marks used in an identical or confusingly similar way, whereas counterfeiting involves goods that contain identical brands. Sales of counterfeit goods have been linked to money laundering, drugs, and organized crime. Airplane and vehicle replacement parts are more counterfeited than any other group of goods. Sometimes a counterfeit good is only distinguished from a genuine article by subtleties in the packaging, such as where glue spots are placed. Sometimes a counterfeit is of a lower quality than the original. Counterfeiting harms: 1) buyers, because they don’t get the real brand they think they’re getting; 2) brand owners, because consumers believe the low-quality counterfeits were made by the genuine brand; and 3) the public, because unsafe products are unleashed on society. Consumers might buy counterfeit goods, including children’s toys, through online retailers. Customs and Border Patrol handles cases of counterfeit goods like Pokemon cards, golf balls, and Super Bowl merchandise. There are so many brands registered with customs that it can be challenging for law enforcement to keep up. Drugs comprise the second-most counterfeited group of goods, and the World Health Organization has warned that counterfeit COVID-19 vaccines are thought to be entering the global supply chain.

In this week’s episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri examine whether a science fiction work can be used as prior art to block a patent. In order to obtain patent protection, an invention must be novel and non-obvious. If a science fiction work shows that an invention is either obvious or not new, then the science fiction work can prevent the invention from being patented, but only if the work describes the invention in sufficient detail. For example, in 1968, Charles Hall’s utility patent application for a water-bed was rejected because Robert Heinlein had thoroughly described a water-bed in three science fiction works: Beyond this Horizon in 1942, Double Star in 1956, and Stranger in a Strange Land in 1961. But Star Trek would not block a patent for a transporter beam, and Star Wars would not block a patent for a light saber, because neither Star Trek nor Star Wars describes how either invention actually works. Litigants can also cite science fiction in cases involving infringement of design patents. In 2011, when Apple sued Samsung for design patent infringement, Samsung argued that Arthur C. Clarke’s 2001: A Space Odyssey was relevant prior art. Even The Sunken Yacht, a Donald Duck cartoon by Carl Banks, was used as prior art to block a patent. Karl Kroyer sought a patent for his method of raising a sunken ship by using a tube to fill it with ping pong balls, but his application was rejected because Donald Duck did it first.

In this week’s episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri discuss the differences between false advertising and puffery. Distinguishing between false advertising and puffery often depends on how specific a factual claim is. Under the US Lanham Act, deceptive trademarks, which are false advertising, are prohibited. And the US Patent and Trademark Office will reject marks for being deceptive. Some of the most mind-blowing, amazing false advertising cases are as follows:

In this week’s episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri welcome special guest Tony Trippe to discuss patent data. Patent data can reveal trends and indicate where a field is headed. The best way for a smaller company, like Jawbone or Fitbit, to compete with a larger company, like Apple or Nike, is to have a great patent portfolio. If a smaller company doesn’t have a great portfolio of its own, it can be beneficial to acquire another company’s patents. The earlier the priority date of a patent application, the better; nothing published after that date can be used to invalidate the patent. Each feature of a product can be covered by its own patent. A savvy investor can analyze public information in patent portfolios and then use that information to guide investments. Companies with well-developed patent portfolios tend to be traded at higher values. A company can use patent information to find new technologies and for competitive intelligence. Patent information can also be used to predict new products that will be released. Patent applications are published eighteen months after having been filed. Tony Trippe predicts that Northrop Grumman, a company in the quantum computing field, might form a major partnership with an established player in the field. In just a few hours, a quantum computer can solve an equation that a huge network of supercomputers would need hundreds of years to solve. Quantum computers present cybersecurity concerns, and they also have applications for chemistry, molecular modeling, other multiple body problems, and encryption.

In this week’s episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri discuss a trademark for the word “superhero.” In 1979, DC Comics and Marvel trademarked “superhero” in connection with comic books. Both companies had been independently using that term for decades, so if either company – on its own – had tried to trademark “superhero,” the other company could have successfully opposed it. A trademark is something – including a word, a graphic, a logo, a color scheme, a scent, or a shape – that designates the origin of a product or service. Different categories of trademarks have different strengths, and they include, in decreasing order of strength: fanciful marks, arbitrary marks, and suggestive marks. Typically, a mark that is merely descriptive is ineligible for trademark protection, though an exception exists for a descriptive mark that has acquired secondary meaning. If a trademark becomes generic, it can become unenforceable. The trademark for “superhero” is unusual for two reasons: 1) two companies hold the mark, so the mark does not necessarily designate the actual source of a product; and 2) the term has been genericized. During a legal action, a large company that can afford prolonged, expensive litigation has an advantage over a less affluent company.

In this week’s episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri discuss a patent infringement lawsuit that MV3 Partners brought against Roku. The case was filed in the Western District of Texas, and Roku claimed that there was no infringement. Judge Alan Albright, who presided over the case, is a former patent litigator. A candy store named Hey Sugar sits across from the Waco courthouse, and after Judge Albright was appointed in 2018, he went on a speaking tour entitled Why You Should File Your Next Patent Case Across From Hey Sugar to encourage would-be litigants to file in his district. At the time of the case, MV3 Partners also had pending litigation against companies like Best Buy, Kohl’s, Google, Microsoft, Sony, Samsung, LG, Apple, Philips, and Amazon. Judge Albright moved the trial along rapidly: the litigants were arguing in court within two years, and a panel of seven jurors heard the case over five days. There is no legal requirement that jurors in a patent infringement case be technically-savvy. This jury ruled that Roku did not infringe the patent rights of MV3 Partners. A litigator often wants to provide a jury with the simplest instructions possible.

In this week’s episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri welcome special guest Patrick von Hinnegan to discuss a CRISPR technology patent case that involves happenings in the United States and in Europe. Most nations in the world, including the US, operate under a first-to-file patent regime, which means that patent rights are awarded to the first party to file a patent application for a new technology, even if that party was not the first to invent the technology. In the US, an inventor can file a provisional patent application – which isn’t a real patent application, but is instead more of a placeholder for one – to obtain an earlier priority date, which is valuable for obtaining patent protection because nothing published after that date can be used to reject or invalidate a patent.