First They Let You Tweet—Then They Pay You

footballBy Michael Rebagliati

Should your employer let you comment on your workplace on social media? How much should your employer pay you? Do you even “work” for your employer?

For college football players, all of these questions are now connected. Last month a regional office of the National Labor Relations Board issued a controversial advisory memorandum. The NLRB indicated that some rules in Northwestern University’s Football Handbook were unlawfully overbroad with respect to Section 8(a)(1) of the National Labor Relations Act. The NLRB previously interpreted this provision of the statute as enforcing certain rights of expression for employees on social media where those rights relate to “concerted activity for mutual aid and protection.” The provisions of the Northwestern Football Handbook at issue discouraged players’ social media presence largely due to concerns about protecting the school’s image. Among other things, the NLRB memorandum countered that players must have greater freedom to post on social media to discuss issues such as their health and safety.

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SCOTUS to Weigh in On Constitutionality of Offensive Trademarks

Another Controversial Trademark: The Washington Redskins

By Adam Roberts

Simon Shao Tam named his band ‘The Slants,’ to make a statement.  He wanted to address cultural issues and discussions regarding race in society.  This type of free speech is generally considered foundational to the protections of the First Amendment.  But, Tam was denied this right.

In In Re Tam, the U.S. Patent and Trademark Office (USPTO) denied Tam’s registration for ‘The Slants,’ finding that a “substantial composite of persons of Asian descent would find the term offensive.”  Tam appealed his case to the Federal Circuit Court of Appeals who overturned the decision.  In her opinion, Judge Kimberly Moore expressed that the statute on which the Government relied – Section 2(a) of the Lanham Act – was unconstitutional under the First Amendment.  The court held that discrimination against content-based private speech is subject to strict scrutiny, which means the Government must present a compelling interest to restrict this kind of speech.  The Government’s interest in excluding speech they determined offensive was considered illegitimate to the court, and a judgment was entered in favor of Tam.

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Expanding the Fringe of Patent Infringement

screen-shot-2016-10-18-at-10-19-49-amBy Sebastian Stock

In Akamai Technologies, Inc. v. Limelight Networks, the Federal Circuit broadened potential patent infringement claims by no longer requiring a defendant perform all the steps of a patented method before direct infringement occurs. As the dust settles from Akamai, should courts expect an influx of patent infringement suits.

Akamai Technologies, Inc. began in 2006 when Akamai Technologies, Inc. (“Akamai”) sued Limelight Networks, Inc. (“Limelight”), claiming infringement of claims on its patent related to its content delivery network (“CDN”). A CDN is a platform of proxy servers designed to directly deliver end-user internet content. CDN’s are widely used – they carry nearly half of the world’s internet traffic.

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Design Patents Taking Center Stage in IP Litigation

Center Stage.pngBy Toban Platt

In Apple v. Samsung, the Federal Circuit court of appeals showed how valuable a design patent can be by affirming the trial court’s award for over $500 million dollars to Apple based largely on its design patents. This decision put design patents in the spotlight of intellectual property protection. The case first started in 2012 and revolved around design patents on particulars of Apple phones, including D618,577 (black rectangle with rounded corners), D593,087 (bezel on surrounding rim), and D604,305 (colorful grid of 16 icons). Apple was able to show that several Samsung phones were substantially similar to the iPhone, which included the design patents at issue. The court found this entitled Apple to collect all of the profits Samsung had made from its infringing phones.

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Human Trafficking v. Free Speech: A Critical Look at the Backpage Controversy

backpageBy Gwen Wei

In 2012, three underage girls sued Backpage, a classified advertising website. The plaintiffs—anonymized as the collective “J.S.”—alleged that they had been forced by sex traffickers to prostitute themselves; that these traffickers had posted advertisements on Backpage, allowing adults seeking sex with minors to pay to rape J.S.; that Backpage had created posting guidelines designed to help such traffickers develop ads that would evade law enforcement while still conveying their illegal messages. In so doing, J.S. alleged, the website had contributed to J.S.’s repeated sexual assaults and exploitation.

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I ATEN’T DEAD: The Continuing Trademark Saga of B&B Hardware v. Hargis Industries

Trademakr.pngBy Gwen Wei

Does anybody remember how B&B Hardware v. Hargis Industries started anymore?

B&B Hardware is a labyrinthine case grown out of simple roots: in 1993, B&B Hardware (“B&B”) trademarked “Sealtight”. Hargis Industries (“Hargis”) applied for a trademark on “Sealtite” in 1996. When B&B opposed Hargis’s application, Hargis sought to have B&B’s trademark cancelled. B&B retorted with a suit for infringement. This eventually led to a brief wrangle before the Trademark Trial and Appeal Board (“TTAB”), where the board found there was a likelihood of confusion between the two marks. But retelling the full twenty years of its litigious history, as Justice Alito later remarked, could fill a long, unhappy book.  Over the decades, B&B Hardware has devolved into a slapfest as the case was dismissed and refiled and remanded, surging all the way to the Supreme Court and back again. The case’s significance no longer lies in its eventual final verdict—whether B&B or Hargis gets to seal the deal, as it were—but in the precedent that it sets.

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Uber for the Skies Gets Shot Down by Federal Regulators

FlyNowBy: Samuel Daheim

In December 2015, the United States Court of Appeals for the District of Columbia Circuit held the Federal Aviation Administration (FAA) rightfully concluded that private pilots, using a web-based service to offer flights to potential passengers, presented themselves as common carriers willing to transport persons for compensation.  Thus, the pilots had violated the terms of their noncommercial pilot licenses.  The pilots petitioned the Supreme Court of the United States for certiorari, and a response came on August 1, 2016.

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Rated T for Tobacco: The Impact of Tobacco Imagery on Movie Ratings

MPAABy Alex Bullock

Whether you should smoke or not is a personal choice. However, whether smoking is good or bad for your health is not really a matter of opinion (spoiler, it’s bad for you). Smoking is certainly not a habit that we, as a society, want to encourage children to pick up (at least not anymore). Yet, one place that has an impact on children’s perception of smoking is at the movie theater.

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Autopilot Crashed My Car. Who’s Liable?

TeslaBy Mackenzie Olson

Recently, numerous drivers have claimed that their Tesla vehicles have crashed while in autopilot mode. Perhaps most notable was a crash that occurred in Florida, when a 2015 Tesla Model S in autopilot mode failed to apply the brakes and subsequently crashed into an eighteen-wheel tractor-trailer. The driver of the Tesla was killed.

Traffic fatalities are commonplace. In 2014, there were 29,989 motor crashes in the United States, from which 32,675 deaths resulted. This, however, is the first fatality that has occurred in a Tesla while it operated in autopilot mode. However, Tesla autopilot has been used in over 130 million miles, and on average, a fatality occurs every 94 million miles in the United States and every 60 million miles worldwide. Such facts can seem to beg the conclusion that Tesla autopilot renders its vehicles safer than those that are manually operated.

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Game of Drones

DronesBy Jessy Nations

Sometime during the past decade or so we started taking the idea of making robots a part of our everyday lives more seriously. Naturally, we went from joking about making machines serve us by doing our menial chores, to teaching them to kill. Once our base needs for violence and subservience were satisfied, we quickly began adapting this technology for the highest, noblest, and most human of all endeavors: bothering our neighbors. Meanwhile, our local legislatures are trying to rein these nuisances in and we have to work with seemingly outdated common law theories until they’re finished.

I’m talking, of course, about small flying robots known as drones. What was once the pinnacle of modern robotics – despite being a glorified RC helicopter with a camera –  is now available from the corner 711 for $30. (No seriously. I’ve almost bought one out of curiosity.)

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