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Could Any Old Yahoo Nab Chief Wahoo?

The MLB team in Cleveland has finally decided to stop wearing "Chief Wahoo," a caricature of a Native American, on their uniforms. The change will happen in 2019. Interestingly, however, the team told ESPN that it "will still sell merchandise featuring the mascot in Northeast Ohio" because "[t]he team must maintain a retail presence so that MLB and the Indians can keep ownership of the trademark."

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Trademark Registration Practice is Officially…umm…Well, You’ll See

In perhaps the least surprising trademark decision of the past 12 months, and one that could have been rendered in under 5 pages (rather than the 50 it actually took), the Court of Appeals for the Federal Circuit last Friday held that the Lanham Act’s Section 2(a) bar on registration of marks which “consist of or comprises immoral…or scandalous matter” is an unconstitutional, content-based restriction on speech. In re Brunetti, Appeal No. 2015-1109 (Fed. Cir. December 15, 2017). In that case, Erik Brunetti had toiled for more than 6 years attempting to register his mark, FUCT, for clothing. Those efforts were uniformly unsuccessful despite some weakly-creative arguments that the word, “fuct,” was not actually vulgar, and even if it was, Section 2(a) did not bar registration of “vulgar” marks.

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Booze is Booze, Right? Not so fast...

In a non-precedential decision, the Trademark Trial and Appeal Board (“Board”) recently reversed a refusal to register Heritage Distilling Company’s application for the mark, BSB, for “distilled spirits” based on the following mark owned by Black Shirt Brewing Co. for “brewpub services; taproom services; taproom services featuring beer brewed on the premises”:

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Did A Neural Network Just Solve Craft Brewing's Trademark Problems?

In response to a rise in craft beer trademark disputes, research scientist Janelle Shane recently set loose a "neural network" – a type of computer program that can "learn" from data sets that are given to it – to create new craft beer names. The thought was that the computer program could learn from thousands of existing beer names, and come up with a long list of new ones built on detected patterns. Last month, Shane published a list of dozens of names, saying: "It worked . . . I give you: craft beer names, invented by neural network."

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Enroll in Amazon’s Brand Registry 2.0… But Only if You Own a Registered Trademark

If you sell private label products on Amazon, please listen up! Amazon recently released its Brand Registry 2.0. The new and improved Brand Registry is Amazon’s most recent attempt to combat brand violations on its online marketplace.

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Fiona Versus the Counterfeiters: What About Her Rights?

As Fiona the hippo, at the Cincinnati Zoo, battled from being born six weeks premature to weighing 375 pounds with a healthy side of sass, she gathered a huge and fierce following.  #TeamFiona has taken the world by storm.

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Choice of Law and Trademark License Agreements: Rethinking Delaware as an Appropriate Jurisdiction

Although substantive portions of trademark license agreements receive most of the attention, as shown in a recent decision of the Delaware Court of Chancery, choice of law provisions, such as those frequently found in the boilerplate of most agreements, should receive careful consideration as well. In Mrs. Fields Brand, Inc. v. Interbake Foods LLC (a copy of which is viewable here), a well-known cookie company, Mrs. Fields as licensor, sought a declaratory judgment that its contract manufacturer, Interbake as licensee, could not terminate their license agreement before the expiration of the then-current term.

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Medical Cannabis Dispensaries Coming to Cincinnati...?

The State of Ohio Board of Pharmacy just released its draft dispensary districts. As you’ve probably heard, medical cannabis is roughly a year away from becoming reality in Ohio, and this step provides some initial insight into where a patient might be able to obtain medical cannabis with a physician’s prescription.

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Why Is The USPTO Treating Marijuana Differently For Patents Than For Trademarks?

Although about half of the states have legalized medical marijuana, and the department of justice has declared it to be a low enforcement priority, marijuana is still a controlled substance under federal law, with criminal penalties for possession and sale.

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Medical Marijuana Creates Unanswered Trademark Litigation Issues

Ohio’s Department of Commerce is ramping up efforts to begin the state’s medical marijuana program.  Standards and licensing procedures for cultivators, laboratories, dispensaries and others will be set up over the next year, and the program must be fully up and running by the summer of 2018.  But at the same time, the federal Drug Enforcement Agency (“DEA”) is doubling down on the marijuana ban, keeping the drug listed alongside heroin as a top-level controlled substance.

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