Intellectual Property

As a firm of trademark and alcohol attorneys, it’s always a thrill when those two topics collide, especially on a major stage. We had one of those great moments of serendipity last week.

The story begins with Diageo, the company that owns Bulleit Frontier Whiskey, a brand of whiskey that might be familiar to our whiskey-drinking readers. In 2017, Diageo sued W.J. Deutsch & Sons, the owner of the Redemption Whiskey brand. The suit centered around allegations of trademark
Continue Reading Bottles Up

We thank you all for reading our (hopefully insightful) blog posts. We plan to continue the mission this next year and we appreciate all the feedback, comments and engagements that we’ve received.

We also want to thank our clients, business partners, staff, attorneys and ancillary work teams – we couldn’t do what we do without the support and teamwork!

With gratitude: Erin Ogden, Jeff Glazer, Collin Schaefer, Sam Kavalier, Sherri Schaaf, Richard Mullings, Laura Kaiser, Carter Rickard and of
Continue Reading As we wrap 2023 and look towards 2024

Can trademarks and sports mix? To address this question, I wanted to dive in with several case studies:

  • GREEN BAY PACKERS: Trademark.

Of course, this Cheesehead cannot help but talk about the Green Bay Packers! The Packers’ notable trademark is it’s original one where it claims the services of “entertainment services in the form of professional football games and exhibitions.” In other words, football fans have come to know that the Packers specifically are playing football in part because
Continue Reading Trademarks and Sports: Yes, No, Maybe So?

The evolution of the esports industry has allowed it to become more than tournaments and prize money. The availability and prominence esports athletes and streamers have to the public have positioned the industry with a direct path for growth. As the industry has developed, one key area has dominated: content creation. Content creation includes the production of videos, streams, podcasts, and the like. Essentially, content creators use some form of media to showcase their gaming and personal lives. Content
Continue Reading Esports and the Law: How to Protect Your Brand

Companies help owners limit their liabilities. That means the owner isn’t putting all of their own personal assets at risk due to the activities of the company. Generally, we business owners like that idea. But it does mean that those who interact with the business may be limited on recouping their damages if they are harmed due to a company’s actions or inactions. If the company’s assets can’t cover the harm, it is difficult to reach through to the
Continue Reading Small Business To Do: Annual Report

Observed the first Monday in September, Labor Day is an annual celebration of the social and economic achievements of American workers. The holiday is rooted in the late nineteenth century, when labor activists pushed for a federal holiday to recognize the many contributions workers have made to America’s strength, prosperity, and well-being.
Continue Reading Happy Labor Day from OG+S and Lola

Kerson v. Vermont Law School, Inc. (2023 WL 5313521, 2d Cir. August 18, 2023)

Artist Samuel Kerson painted two large murals directly onto the walls inside a building on the campus of Vermont Law School. Kerson intended the works to depict the United States’ sordid history with slavery and Vermont’s participation in the abolitionist movement. Community members, however, perceived the works as depicting enslaved African people in an offensive, stereotypical style. Beyond that, some also took issue with the
Continue Reading Second Circuit: VARA Permits Building Owner to Hide Visual Art

You may remember the CD-ROM, that vestige of a technological age mostly past by now. This was software as a good, a tangible item for sale usable in several ways. Of course, as with time, so goes with new technology: change is inevitable. Nowadays, we download, stream, and access software without even so much as a disc drive on almost any computer.

With this change comes the need to rethink trademark portfolios that contain marks covering software. After all,
Continue Reading Taking the Good with the … Service

In a case involving a 1980’s rocker, an iconic figure in the pop art movement, and a celebrity photographer, the Supreme Court recently tweaked the four-part copyright fair use test in its decision in Andy Warhol Foundation v. Goldsmith. The shift in fair use, though subtle, may have profound implications for artists who build upon existing creative works—and, of course, businesses and persons who may want to use resulting copyrighted material.
In 1981, celebrity photographer Lynn Goldsmith photographed
Continue Reading The Supreme Court Strikes a New Chord in Andy Warhol Foundation v. Goldsmith

My last blog post ended with a cliffhanger: but what about Jack Daniel’s and dog toys? For those of you on the edge of your seats, thanks for waiting. There are others probably thinking, “What is this guy’s deal? First, it was shoes and socks, and now it’s whiskey and dog toys?” For those readers, I ask for a little patience. I will get to the point.

                For those unaware, the U.S. Supreme Court in June issued a
Continue Reading Poking Fun or Making a Buck?

When branding a new product, many businesses allude to copyrighted works either to honor a creative work or cash in on a pop culture success. The practice is very common across a wide variety of products, including t-shirts, stickers, craft beers, and even car commercials. You may even be considering alluding to a copyrighted work for your next product. Unfortunately, brand creators are often unaware of the dangers associated with the practice as it risks trademark and copyright infringement.
Continue Reading The Stuff Dreams Are Made Of: Copyright in Fictional Characters

This blog post builds on my previous post. This time I will be covering fair use for trademarks instead of copyright. Much like copyright, there are exceptions and limits to what protection owning a trademark can provide you, including what is and is not infringement. Fair use in the trademark space breaks down into two categories.

The first is descriptive fair use. As Erin covered in an earlier post, trademarks are on a spectrum of distinctiveness. Descriptive
Continue Reading Fair to Use this Trademark?

I get many different types of questions from my clients regarding various trademark matters. Some scenarios involve trademarks that have been in their portfolio for a while and are no longer in use, while other trademarks are brand new and ready for their moment in the spotlight. Sometimes clients wonder what to do with a trademark associated with a business they are purchasing, and other times they have a question related to a small but confusing detail associated with
Continue Reading Will You Trademark Me?

Very often we get questions from clients regarding “authorized” – “issued” – and “outstanding” shares and what the terms mean in the context of corporations and raising money. Below is a quick explanation of the terms; thanks for reading.

Authorized Shares means the total (read, total ever that could be) shares a Corporation can create or “cut itself into.”  If you imagine a pizza, Authorized Shares are like the total number of slices the pizza will ever be cut up into.  There is
Continue Reading Authorized, Issued, and Outstanding