Intellectual Property in 2021 and Beyond
By Desiree Goff • December 31, 2020•Ms. JD, Writers in Residence
As the last article for the 2020 Writers in Residence column “Becoming a Zebra”, I want to thank the many influential attorneys who continue to lead, working diligently and persistently with passion for endeavors to improve the world around them. While this series was very limited in describing areas of legal practice and awe inspiring women in the legal profession, what I hope you the reader take away is a fervor for excellence in the legal career you dedicate yourself to and a remembrance to contribute to the community in which you find yourself.
As we look ahead to the new year, I want to highlight significant changes coming to intellectual property. While most commentary surrounding the recent stimulus bill focused on government spending and economic stimulus provisions, the bill also contained significant intellectual property measures which can fundamentally change how IP owners enforce their rights. Specifically, the Trademark Modernization Act of 2020, the Copyright Alternative in Small-Claims Enforcement Act of 2020, and the Protecting Lawful Streaming Act.
The Trademark Modernization Act of 2020 (TM Act) seeks to “modernize” trademark law by dealing with the ever-increasing reliance on electronic communications and by protecting legitimate trademark users from fraudulent attempts at trademark registration. In the application process for a trademark, the TM Act will allow third parties to submit evidence relevant to a ground for refusal for the application, and it establishes an ex parte process to expunge trademark registrations when the mark is not actually used in connection with the recited registered goods or services. This is aimed at “decluttering” the register. The TM Act also codifies the presumption that a plaintiff in a trademark case is entitled to a rebuttable presumption of irreparable harm when seeking an injunction to remedy a trademark violation. This presumption reduces the evidentiary burden on a trademark owner seeking an injunction, making it more likely for owners to apply for and receive injunctions. An injunction can be issued based on the merits of the plaintiff’s trademark rights without needing to establish irreparable harm due to the infringement. The TM Act also allows examiners to set response times to office actions between 60 days and six months while allowing the applicant to request an extension to the full six-month period.
The Copyright Alternative in Small-Claims Enforcement Act (CASE Act) establishes a small claims court under the Copyright Office to hear infringement disputes where the owner seeks under $30,000, at $15,000 per work or $30,000 for the entire case with each party paying its own attorney fees. The final determination from the Copyright Claims Board is intended to preclude re-litigation before any court or tribunal of the claims and counterclaims asserted and determined. Current copyright lawsuits largely disfavor small businesses and individuals due to the costs of litigation and statutory fee awards. The alleged defendants may pay the fines and remotely participate in the hearing without the requirement of attorney representation. Congress intends for this legislation to provide copyright owners more affordable and streamlined access to settle smaller disputes. In addition to the CASE Act, the bill enacts the Protecting Lawful Streaming Act. This Act upgrades infringement claims based on streaming copyrighted works from a misdemeanor charge to a felony charge. The Act punishes for profit streaming piracy services that willfully offer to the public illicit services dedicated to illegally streaming copyrighted material.
These changes are sure to impact the ever evolving landscape of intellectual property and implementation will follow the various rules and regulations promulgated by the U.S. Copyright Office and United States Patent and Trademark Office, so be sure to look to them for guidance as these Acts are put into practice. Thank you all for joining me this year and I wish you all a healthy, happy New Year!
Important New Trademark and Copyright Laws Appear in Stimulus Package. The National Law Review. Dec. 22, 2020. <https://www.natlawreview.com/article/important-new-trademark-and-copyright-laws-appear-stimulus-package>
Miranda, John. Infringement was the CASE. A Look at Intellectual Property Legislation in the New Covid Relief Bill. Hypebot. Dec. 30, 2020.
Tillis Targets Criminal Streaming Services with ‘Protecting Lawful Streaming Act.’ IP Watchdog. Dec. 15, 2020.
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