On the legislative and administrative fronts, I strongly doubt that patent legislation will move, and I expect that the Biden Administration will continue to advance anti-patent policy. On the judicial front, the Supreme Court will render one decision of great interest to copyright holders and one decision of major significance to trademark holders. In Warner Chappell Music, Inc. v. Nealy, the Court will decide whether a copyright plaintiff can recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit. And in Vidal V. Elster, the Court will decide whether the refusal to register a trademark under 15 U.S.C. § 1052(c) violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.
Penn State Univ. v. Vintage Brands will be an important case to watch in 2024 with far-reaching implications for the licensing industry, extending to colleges, universities, the sports world and beyond. The Middle District of Pennsylvania rejected Penn State's motion to dismiss Vintage Brand's counterclaim seeking to cancel Penn State's trademark registrations on the grounds that they do not function as trademarks for certain categories of merchandise. The court found that Vintage Brands had plausibly alleged that the marks, including PENN STATE, when used on items like t-shirts and other merchandise, were purely ornamental and did not serve to identify source or sponsorship.
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