Law Blog

  • A Rose By Any Other Name … But Likely Not a Trademark

    A Rose By Any Other Name … But Likely Not a Trademark

    Anthony Cartee

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    Trademark a plant? Trademarks have helped create value for all sorts of products. However, may a living thing such as a plant variety that you have bred and created be trademarked? Can You Trademark a Plant? Generally, the answer is no. It is nearly impossible to trademark a plant. Varietal or cultivar names are designations given to cultivated varieties or subspecies of live plants or agricultural seeds and they amount to the generic name of the plant or seed by which such variety is known to the consumer. In re Pennington Seed Co. (2006) 466 F.3d 1053. The Ineligibility of… Read More

  • LLC Withdrawal and the Operating Agreement: Know Where the Exits Are Before Creating Your LLC

    LLC Withdrawal and the Operating Agreement: Know Where the Exits Are Before Creating Your LLC

    Anthony Cartee

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    LLC Withdrawal and the Operating Agreement – The limited liability company (“LLC”) has become one of the most desired forms of a closely held business organization. As an unincorporated business entity, the LLC is favored because of its pass-through tax treatment as well as its maximum operating flexibility. However, an LLC also demands a well-written and comprehensive operating agreement, especially when it comes to the withdrawal or dissolution of a member. The Power to Dissociate and Member LLC Withdrawal In 2014, California passed the Revised Uniform Limited Liability Company Act (RULLCA), which provides that a member generally has the power… Read More

  • Do Two Generics Make a Trademark Registration?

    Do Two Generics Make a Trademark Registration?

    Anthony Cartee

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    SCOTUS Ruling In USPTO v. Booking.com Opens The Door For Generic Domain Owners To Register Their Trademark The U.S. Patent and Trademark Office (USPTO) has believed that “generic.com” domain names were almost always generic and therefore not registrable under trademark law. However, the Supreme Court’s nearly unanimous decision in USPTO v. Booking.com (2020) 591 U.S. ___, earlier this year has rejected that per se rule, which means such generic combinations have the potential to become protectable trademarks. Under the Lanham Act, a mark must be distinctive in order to obtain protection. As such, generic terms alone cannot be protected as… Read More

  • Trademark Ornamental Refusals – What to Consider

    Trademark Ornamental Refusals – What to Consider

    Anthony Cartee

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    Trademark Ornamental Refusals – What to Consider Sometimes, the USPTO will issue eccentric and unusual refusals to a trademark application. One such refusal is called an ornamental refusal. If you receive a trademark ornamental refusals, it means your registration of your applied-for mark has been refused because your mark is essentially merely decorative. That is, your mark does not clearly identify the source of your goods and distinguish them from the goods of others, which is required for proper trademark use. In some situations, a mark can still be registered even if it is used in an ornamental or decorative… Read More

  • Supplemental Registration – Pros & Cons – Online Retailers

    Supplemental Registration – Pros & Cons – Online Retailers

    Anthony Cartee

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    Pitfalls & Benefits of Owning a Supplemental Registration it you are an Online Retailer. Supplemental Registration – The United States has two trademark registers: the Principal Register and the Supplemental Register. Online retailers, most notably Amazon’s brand registry, have primarily given preference to the Principal Register. This is because registration on the Principal Register affords all rights and responsibilities available to trademark owners. To online retailers, the Supplemental Register is a sort of holding ground for trademarks that the U.S. Trademark Office does not believe function as trademarks yet. Think of the Supplemental Register as a holding room for marks… Read More

  • Legal Considerations & Covid-19 Pandemic

    Legal Considerations & Covid-19 Pandemic

    Anthony Cartee

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    LEGAL CONSIDERATIONS DURING COVID-19 PANDEMIC: CONTRACTUAL AGREEMENTS AND FORCE MAJEURE With the onset of the COVID-19 pandemic, there is increasing disruption to supply chains for buyers and sellers of goods. From unpaid invoices to the inability to fulfill an order, your business may be dealing with issues that are increasingly becoming more common. It is important that we discuss applicable provisions and ideas in tackling such issues, such as force majeure and other defenses. First off, when dealing with an issue such as an unpaid invoice for goods, you will look to the Uniform Commercial Code (“UCC”) which governs the… Read More

  • Rejected Custom Goods & Seller’s Remedies

    Rejected Custom Goods & Seller’s Remedies

    Anthony Cartee

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    REJECTED CUSTOM GOODS & SELLER’S REMEDIES Rejected Order? In a time when you can sell or purchase products from virtually anywhere in the world, there are many potential problems you can run in to as a seller, especially when you produce customized products. For example, let’s say you’re a seller of custom goods. You don’t have a formal written contract with your buyer, but you do have a purchase order and the specifications for the custom product. You make the customized product and everything looks good, so you ship the goods to your client. But the day after you shipped… Read More

  • Renewing Your Trademark-Excusable Non-Use

    Renewing Your Trademark-Excusable Non-Use

    Anthony Cartee

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    Renewing Your Trademark-Excusable Non-Use Renewing Your Trademark – Even after you have successfully registered a mark with the US Patent and Trademark Office, you are not done in ensuring your mark stays registered and protected. Your trademark application must be renewed 5-6 years after your first registration in order to maintain that registration. You must also renew the year before every ten-year period after the date of registration. Typically, when you renew a trademark, one of the requirements is showing that you have used the mark in commerce continuously since it has been registered. Absent a showing of “use,” your… Read More

  • The ‘Deceptively Misdescriptiveness’ Rejection

    The ‘Deceptively Misdescriptiveness’ Rejection

    Anthony Cartee

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    The ‘Deceptively Misdescriptiveness’ Rejection Deceptively Misdescriptiveness – There are many reasons your trademark application may be denied. One of the more unique reasons is something called “deceptively misdescriptiveness.” Your first question is probably “what does that even mean?” A mark is considered deceptively misdescriptive if it describes an ingredient, quality, characteristic, function, or feature of the goods and or services and the description conveyed by the mark is both false and plausible. Trademark Manual of Examining Procedure §1209.04. For example, the mark “Pink Fur” would be considered deceptively misdescriptive of the goods if the goods sold are a line of… Read More

  • The Primarily Merely a Surname Rejection

    The Primarily Merely a Surname Rejection

    Anthony Cartee

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    The Primarily Merely a Surname Rejection Primarily Merely a Surname – You’ve submitted a trademark application and after many months, you finally receive news from the USPTO—but it’s an Office Action. There are several reasons you may receive a rejection from the USPTO for a trademark application, the most popular one being a Section 2d—“likelihood of confusion” rejection. However, there are many other rejections, including sound, appearance, meaning, commercial impression, the mark is seen as merely descriptive or deceptively misdescriptive, geographically descriptive, merely ornamental, and more. Another reason for rejection may be because the mark is “primarily merely a surname.”… Read More