The retail and tech sectors are rife with legal battles that pit industry occupants – from luxury brands and resale players to sportswear titans and tech startups – and oftentimes, valuable elements of their branding and critical elements business models against one another. With the new year well underway, here is a look at an array of the currently pending lawsuits that are worth keeping a close eye on, as companies continue to clash over the use of their trademarks in connection with the marketing and sale of non-fungible tokens (“NFTs”), questions arise at the intersection of copyright law and AI-generated artwork, former crypto darlings fall from grace (potentially implicating their famous endorsers in the process), and celebrities and other big companies face off against reverse confusion-focused suits.
AI Art Lawsuits
Artificial intelligence (“AI”) artwork generators garnered a notable amount of attention in 2022 and have continued to do so this year, giving rise to nuanced legal questions for courts – and potentially, Congress. The ability of these AI systems to generate artistic outputs with little (if any human) contribution is presenting legal questions, namely, in the copyright registration and infringement vein. These issues are reflected in the following lawsuits …
(1) Thaler v. Shira Perlmutter, et al.
(2) Anderson, et al., v. Stability AI LTD., et al.
(3) J. DOE 3, et al., v. GitHub, Inc. et al.
(4) And to some extent … Yuga Labs, Inc. v. Ryder Ripps, et al.
Bad Spaniels + MSCHF v. Vans
Bad Spaniels is slated to get the Supreme Court treatment this year, with the nation’s highest court agreeing to take on the case, in which Jack Daniel’s has accused VIP Products of TM infringement in connection with the sale of dog toys that resemble a bottle of its Old No. 7 Black Label Tennessee Whiskey. SCOTUS’ certiorari grant comes on the heels of the U.S. Court of Appeals for the Ninth Circuit holding in March 2020 that the toy is an expressive work entitled to First Amendment protection. While SCOTUS previously refused to take on the case, it granted certiorari this time around on two questions: (1) Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims? and (2) Whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act?
At the same time, a separate TM case, which Vans waged against MSCHF, is being directly impacted by the Jack Daniel’s impending day in court. On the heels of oral arguments, which took place in September, the Second Circuit stayed further proceedings in Vans v. MSCHF until SCOTUS issues an opinion in Bad Spaniels.
Vogue v. Drake
Drake and 21 Savage landed on the receiving end of an interesting lawsuit in 2022, with Vogue’s parent company Condé Nast suing the two rappers for allegedly using the magazine’s name as part of a “widespread promotional campaign.” According to Condé’s Nov. 2022 complaint, Drake and 21 Savage have promoted their album Her Loss by way of a campaign “built entirely on the use of the VOGUE TMs and the premise that Drake and 21 Savage would be featured on the cover of Vogue’s next issue.” The problem, according to Condé: “All of this is false,” and no part of the “deceptive campaign” has been authorized” by the Vogue TM holder.
The latest development in the case: SDNY Judge Jed Rakoff put a TRO and preliminary injunction in place, blocking Drake and 21 Savage from using the Vogue mark to promote their album.
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