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New Intellectual Property Laws for 2021

By John DiGiacomo

As the world watched for new developments and information for the COVID-19 vaccine and the US waited to see what kind of stimulus the Federal Government would provide to citizens, new intellectual property laws were enacted at the tail end of 2020. Luckily, we’ve been paying close attention. This new trademark and copyright legislation will have significant impacts on internet users, streaming services, artists and other copyright owners, and trademark owners. Here’s what you need to know:

Felony Streaming Online

Congress has expanded the potential criminal implications of copyright infringement with the intent to hold online service providers liable for streaming unauthorized audiovisual works.  This includes videos, movie, films,  and even possibly, memes. This provision of the new law provides that online streaming services of works without the copyright owner’s authorization can be found guilty of criminal copyright infringement and punished by up to ten years in prison. Congress does not intend this law to expand repercussions to individuals who stream online. 

Copyright Small Claims

An interesting development in copyright law comes via the Copyright Small Claims legislation. This allows copyright owners who allege infringement to avoid filing a federal lawsuit against an infringer and file an action through the United States Copyright Office. The Copyright Office has one year from now to create a board who will oversee and rule on copyright infringement claims with monetary damages capped at $30,000. The idea is to create a system that allows for copyright owners to enforce their rights without having to invest as much in a lengthy federal lawsuit. However, federal lawsuits may still be the best option depending on the case. We will be watching this process and ready to participate on behalf of our clients as soon as it becomes available.

Trademark Modernization Act

In addition to the above new copyright legislation, Congress has included new procedures and rules to be implemented by the United States Patent and Trademark Office (USPTO) in the 2020 Trademark Modernization Act. This law is intended to help “clean up the register” by removing trademark registrations for trademarks that have not actually been used for the claimed products and services. The Act includes the ability for third parties to submit evidence to the record of a trademark application during the examination period. This measure may pose greater hurdles to registration. The Act also provides for the Director of the USPTO to provide for flexible response periods upon refusal of registration.

In efforts to clear the register of unused trademarks, the Act provides for procedures that will allow third parties and the USPTO to initiate expungement and reexamination procedures against registrations after three years of registration. Marks with claimed goods and services on which the mark has never been used will be vulnerable under these processes. Trademarks based on foreign registrations may be particularly vulnerable under these rules.

The Act helps trademark registration owners who file lawsuits as well. In addition to providing a presumption of validity, a US Trademark Registration will provide a rebuttable presumption of irreparable harm which will make obtaining a preliminary injunction against infringers more straightforward in Federal Courts.  

These changes to trademark law emphasize the importance of careful drafting and evaluation of trademark applications prior to filing. Also, there is an increased benefit to trademark monitoring services as trademark owners have more options to intervene early in the examination process of third party applications.

Questions? As always, we’re on top of these new changes and will let you know when we learn more about how the Courts, the Copyright Office, and the USPTO will implement these new laws. If you have any questions please feel free to contact us 231-714-0100.

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