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.

Practical Implications of the Trademark Modernization Act

The 2020 Trademark Modernization Act (TMA) reshapes the landscape for both trademark applicants and existing registrants. One of the most consequential provisions is the restoration of the rebuttable presumption of irreparable harm in trademark infringement cases. Prior to the TMA, courts such as the Ninth Circuit held that trademark plaintiffs must separately demonstrate irreparable harm before obtaining a preliminary injunction. The TMA expressly overrules those decisions by amending the Lanham Act at 15 U.S.C. § 1116. For businesses holding registered marks, this restoration means that swift injunctive relief against infringers is once again achievable without the costly evidentiary burden of proving irreparable harm in every case.

The TMA’s new expungement and reexamination procedures deserve particular attention from brand owners. Under the expungement procedure (15 U.S.C. § 1066a), any person may petition the USPTO within three to ten years of registration to cancel a registration on the ground that the mark has never been used in commerce on the identified goods or services. Reexamination (15 U.S.C. § 1066b) targets registrations where the mark was not in use at the relevant dates claimed in the application. These proceedings can be initiated by third parties or by the USPTO Director on the Director’s own initiative. For trademark applicants, this underscores the importance of precisely defining your identification of goods and services at the application stage.

Copyright Small Claims: The CASE Act in Operation

The Copyright Alternative in Small-Claims Enforcement Act (the “CASE Act”) created the Copyright Claims Board (CCB) within the Copyright Office. See 17 U.S.C. §§ 1501–1511. The CCB began accepting claims in June 2022 and has quickly become a meaningful forum for independent creators and small rights holders who cannot justify the expense of federal litigation. The CCB can award statutory damages up to $15,000 per infringed work and total damages capped at $30,000 per proceeding. Critically, respondents retain the right to opt out within 60 days of receiving a claim; if a respondent opts out, the proceeding is dismissed and the claimant must pursue the matter in federal court if at all.

Practitioners should counsel clients carefully about the strategic tradeoffs. The CCB process is streamlined and relatively inexpensive, but it is limited to claims not exceeding $30,000 in aggregate and cannot issue injunctions. Where a copyright owner seeks to stop ongoing infringement or where damages exceed the cap, federal district court litigation remains the appropriate venue. The CCB is best suited for resolving discrete, bounded disputes—such as unauthorized use of a single photograph on a website—rather than complex commercial piracy.

The Felony Streaming Act: Who Is Actually at Risk?

The Protecting Lawful Streaming Act of 2020 (part of the Consolidated Appropriations Act) made large-scale commercial streaming of unauthorized audiovisual content a felony under 17 U.S.C. § 2319C. The statute requires that the conduct be both willful and for commercial advantage or private financial gain. Congress included express language clarifying that the provision was NOT intended to target individual consumers who stream pirated content for personal viewing. The law’s primary targets are commercial streaming services that earn revenue by offering unlicensed films, television shows, or sporting events to subscribers.

For businesses that operate any form of online streaming platform, compliance review is now essential. Any platform that aggregates and redistributes audiovisual content must verify that it holds the necessary performance rights, synchronization licenses, and distribution agreements for each piece of content. Failure to conduct this review exposes both the business entity and individual officers who direct infringing activities to federal criminal liability.

Contact an Intellectual Property Attorney

Navigating these overlapping federal intellectual property regimes requires experienced counsel. Whether you are a brand owner assessing your trademark portfolio’s vulnerability to TMA expungement proceedings, a copyright holder evaluating whether to file in the CCB or federal court, or a digital platform manager auditing your content licensing practices, the attorneys at Revision Legal can help. Contact us at 231-714-0100.