'I Want to Thank You': Who and What IP Stakeholders are Giving Thanks for This Year
Howard Shire, a partner in Troutman Pepper's Intellectual Property Practice Group, was quoted in the November 22, 2023 IPWatchdog article, “ 'I Want to Thank You': Who and What IP Stakeholders are Giving Thanks for This Year."
The IP community has a lot to be thankful for in 2023, mainly due to the seemingly never-ending fascinating and cutting-edge IP issues presented primarily by modern technology. Issues posed by artificial intelligence (AI) are at the forefront.
These probably start with whether the basis for AI, namely the fact that it is based on using pre-existing copyrighted material, is lawful. Does this use constitute copyright infringement or does it qualify as fair use? There are pending cases presenting this issue, which will probably make their way through the court system in 2024. Or perhaps Congress will weigh in, via an amendment of the Copyright Act.
What about the materials created by the use of AI? Thus far, the Copyright Office has indicated that they are not copyrightable unless there is some degree of human involvement, but how much involvement is unclear. Perhaps court cases will shed some light on this in 2024.
Apart from AI, I look forward to the Supreme Court's first decision involving Section 2c of the Lanham Act, which prohibits registration of a trademark using the name of a living person, without that person's consent. Steve Elster applied to register the trademark "Trump Too Small" for t-shirts. Elster claims that his trademark is intended to convey that some features of President Trump and his policies are diminutive. The application was denied by the Trademark Office based on 2c, but the Federal Circuit approved of the application, because prohibiting Elster from registering this mark would violate the First Amendment. Based on oral argument earlier this month, it appears likely that the High Court will uphold the statute and deny Elster's application, based on 2c, but we shall see.