Copyright & Trademark Policy To Watch in 2023
Barry Werbin, counsel in Herrick's Intellectual Property Group, spoke to Law360 about the top copyright and trademark policy issues to track in 2023. Barry discussed how the Trademark Modernization Act and the Copyright Alternative in Small-Claims Enforcement Act will affect the industry in the coming year.
The article highlighted that Congress passed the Copyright Alternative in Small-Claims Enforcement Act in late 2020. This act directed the Copyright Office to establish the Copyright Claims Board. In June of 2022, the board started hearing disputes involving up to $30,000. This board was established to help resolve infringement disputes as a voluntary, low-cost alternative to district court. Although the board has not handed down any decisions, they are projected to do so this year, as cases advance.
"In light of that, attorneys should be able to start assessing how the board is doing," Barry noted.
Barry said he will be watching to see "the decisions that start getting issued — what the awards look like, how many are settled and how many respondents opt out."
An additional policy that the article discussed was the Trademark Modernization Act. This act, which was signed into law in December 2020, made it easier for brand owners to get injunctions. Additionally, this act allowed the USPTO to cancel trademark registrations that are no longer being used in U.S. commerce anymore, have never been used or were fraudulently obtained. Most provisions took effect in 2021, but several were delayed until 2022. One provision shortens the amount of time trademark applicants have to respond to USPTO actions from three months instead of the original six.
Attorneys and clients were sometimes waiting until the end of the previously allotted six-month time period to respond, explained Barry, which he noted can create additional backlog at the USPTO.
"It will be interesting to see over time whether that [provision] will start to move applications along," Barry concluded.
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