Three New Supreme Court Cases:

by Dennis Crouch

1. Vidal v. Elster.  Elster is seeking to register the mark TRUMP TOO SMALL, but was initially rebuffed because the law prohibits registration of a mark consisting of the name of a particular individual. 15 U.S.C. 1052(c).  On appeal though, the Federal Circuit found such a restriction unconstitutional — especially in this situation where the mark forms a criticism.  The court’s decision follows the logic of two recent Supreme Court cases on point: Tam (the SLANTS – disparaging marks) and Brunetti (FUCT – scandalous marks).  In its petition, however, the US Gov’t tries to distinguish those viewpoint cases from this one that arguably does not involve viewpoint discrimination. Question presented: “Whether the refusal to register a mark under Section 1052(c) violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.”
2. Nike v. Adidas: This one is not yet a petition, but in an extension request, Nike indicated its plans to petition this case.  The basic issue is whether the IPR statute permits the Board to raise patentability issues sua sponte with regard to substitute claims.  See 35 USC 316(e) (“the petitioner shall have the burden of proving a proposition of unpatentability by a preponderance of the evidence”).
3. Thryv v. Click-to-Call: This is the sister case of the IPR previously before the Supreme Court. The IPR only canceled some of Click-to-Call’s claims. The district court then invalidated the remaining claim in suit.  However, on appeal, the Federal Circuit ruled that the invalidity challenge was estopped under Section 315(e).  Thus, the petition in this case is likely to raise the same question raised by Apple in the CalTech case. For now though, the petitioner is simply asking for a 30-day extension of its due date.