Recent Publications - Frank M. Misiti


iPhone To OurPhone: Apple Update Allows Users To Create A “Legacy Contact”
December 23, 2021 | Intellectual Property | Trusts & Estates

Today, much of our lives are documented through digital devices and assets, instead of, for example, through things such as traditional family photo albums.  But while photo albums are easily passed on after death, passing along digital assets present additional challenges.  Expectedly, there are laws which address the ownership of digital assets.  That said, despite

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The Notorious RBG Spits Fire: BOOKING.COM Is Not Generic
July 1, 2020 | Intellectual Property

As is often the case, technology develops faster than the law. In that connection, courts are often called upon to apply legislation from yesteryear to technology which, at the time the legislation was passed, would have been categorized as science fiction. Such was the conundrum faced by the Supreme Court in having to apply the

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Supreme Court Hears First-Ever Telephonic Oral Argument
May 4, 2020 | Intellectual Property

On May 4, 2020, the United States Supreme Court heard its first ever telephonic oral argument in its history. The case, styled United States Patent and Trademark Office v. Booking.com, B.V., addressed the issue of whether the addition of “.com” to an otherwise generic term can create a protectable trademark. Erica Ross, an Assistant to

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Cannata and Misiti Published in CLM Magazine
May 4, 2020 | Insurance Coverage

Michael Cannata and Frank Misiti’s article, “Proposed COVID-19 Bills Targeting Insurers: Do They Pass Constitutional Muster?” was published in the May 2020 CLM Magazine.

The CLM, a member of The Institutes, is dedicated to meeting the professional development needs of the claims and litigation management industries. Founded in 2007, the CLM membership benefits from our

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Proposed COVID-19 Bills Targeting Insurers: Do They Pass Constitutional Muster?
April 15, 2020 | Insurance Coverage

“While emergency does not create power, emergency may furnish the occasion for the exercise of power.”

~ U.S. Supreme Court Chief Justice Charles E. Hughes (1934)

COVID-19 has transformed the health and economy of our nation. Expectedly, the legislative response to this national emergency, at both the state and federal levels,

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Brands Respond to COVID-19
April 3, 2020 | Intellectual Property

Many years ago, Mr. Rogers bestowed upon his audience some sage advice given to him by his mother after he would see scary things in the news. His mother told him “look for the helpers. You will always find people who are helping.” In these challenging times, certain brands have done precisely that – helped.

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4th and Long: Tom Brady Fumbles Attempt to Trademark TOM TERRIFIC
September 18, 2019 | Intellectual Property

There are many men named Tom. But only one of those Toms is “terrific” – Tom Seaver. The 12-time All-Star, three-time Cy Young Award winner and first-ballot Hall of Famer’s iconic performance in Game four of the 1969 World Series forever changed the course of the New York Mets franchise and, undoubtedly, played a pivotal

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Excess and Extended Coverages and Excess Coverage Issues
July 31, 2019 | Insurance Coverage

Michael Cannata and Frank Misiti authored a chapter entitled “Excess and Extended Coverages and Excess Coverage Issues” in the third edition of the Insurance Law Practice treatise by the New York State Bar Association.

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U.S. Supreme Court Rules that “FUCT®” Is Fine
June 28, 2019 | Intellectual Property

Maybe you feel that the title to this bulletin is “immoral” or “scandalous,” or maybe you don’t.  Either way, in light of the U.S. Supreme Court’s recent decision in Iancu v. Brunetti, whether a word or term is “immoral” or “scandalous” is no longer relevant to whether that word or term can receive federal trademark

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Mission Complete: Supreme Court Rules In Favor Of Trademark Licensees
May 20, 2019 | Intellectual Property

Trademark licensees no longer need to fear the possibility of losing the right to use their licensed marks if the licensor files for bankruptcy. On May 20, the United States Supreme Court issued its decision in Mission Product Holdings, Inc. v. Tempnology, LLC nka Old Cold LLC, 587 U.S. __ (2019), holding that a licensor’s

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Litigation Trends in Packaging Claims
April 12, 2019 | Intellectual Property | Health Services

Michael Cannata and Frank Misiti authored an article published in Natural Products Insider, “Litigation Trends in Packaging Claims.”

Click here to read the article.

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And She’s Returning The Stairway … to Heaven
October 12, 2018 | Intellectual Property

While there may be a no-return policy on the stairway to heaven, no such policy exists with respect to returning a blockbuster jury verdict that dismissed a copyright infringement lawsuit against Led Zeppelin. To be sure, the U.S. Court of Appeals for the Ninth Circuit recently held that a new day will dawn by ordering

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Gordon, Cannata and Misiti Published in NYIPLA
July 6, 2018 | Intellectual Property

Stu Gordon, Michael Cannata and Frank Misiti’s article, “Dealer’s Choice: First Circuit Allows Licensor to Reject Trademark License in Bankruptcy,” was published in The New York Intellectual Property Law Association’s spring newsletter.

Click here to read the article.

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Everybody Hurts Sometimes: But Is Insurance Available to Compensate That Pain?
May 11, 2018 | Insurance Coverage

From efforts to curtail cyber-bullying, to the creation of safe spaces, protecting individuals from mental injury is now mission critical. Every day, lawsuits are filed by individuals seeking damages for conduct that has resulted in mental injury. Not surprisingly, the targets of these lawsuits have turned to their insurers to defend and indemnify them against

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Driving Miss Lohan? Not According to the New York Court of Appeals
April 19, 2018 | Intellectual Property

Lindsay Lohan was not pleased with the alleged use of her likeness by Rockstar Games as an avatar in its Grand Theft Auto V video game. In her lawsuit against the game company, Lohan claimed that: (1) an avatar named “Lacey Jonas” that appears in the video game so resembled her that the avatar qualified

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Parental Advisory®? The Future of Trademark Registrations Post Tam
March 22, 2018 | Intellectual Property

Michael C. Cannata and Frank M. Misiti have published an article in USLAW Magazine entitled,” Parental Advisory®? The Future of Trademark Registrations Post Tam.”

Click here to read the article.

All rights reserved. Reprinted with permission from USLAW.org.

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The Ties That Bind: Second Circuit Rejects Trade Dress for Plastic Bag Closures
December 18, 2017 | Intellectual Property

Businesses must give careful consideration to ensuring that their trade dress is not functional.  A determination of functionality is fatal to any claim that a product contains a protectable trade dress.  In Schutte Bagclosures, Inc. v. Kwik Lok Corp., 699 F. Appx. 93 (2d Cir. 2017), the Second Circuit recently underscored the importance of functionality

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SCOTUS: Provision Barring Registration of Disparaging Trademarks Unconstitutional
June 19, 2017 | Intellectual Property

It has been a long road for Simon Tam and his bandmates in the rock group “The Slants.”  Back in November 2011, Tam filed a trademark application for THE SLANTS for use in connection with “entertainment in the nature of live performances by a musical band.”  In doing so, Tam hoped to reclaim the otherwise

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The Eagles Refuse to Take It Easy on Alleged Infringer
May 17, 2017 | Intellectual Property

Like The Dude from The Big Lebowski, the “Hotel California,” located on the Baja Peninsula in Mexico, is likely no longer a fan of The Eagles.  Earlier this month, the iconic classic rock band filed suit against the hotel in the U.S. District Court for the Central District of California seeking to take it to

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Starbucks Hits the Bong Designer In the Wallet
December 5, 2016 | Intellectual Property

The U.S. District Court for the Central District of California recently granted Starbucks’ motion for a default judgment against James Landgraf, an individual responsible for the design and sale of glass bongs, clothing, and other novelties that infringed certain logos owned by Starbucks. Starbucks Corp. v. Glass, 2016 U.S. Dist. LEXIS 145694 (C.D. Cal. Oct.

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Court Rejects Insured’s Attempt To “Shoe-Horn” Trademark Infringement Claims Under Advertising Injury Provisions
October 13, 2016 | Intellectual Property | Insurance Coverage

The U.S. District Court for the Central District of California recently rejected efforts by an insured to procure coverage for allegations of trademark infringement under its “Personal and Advertising Injury” insurance coverage.  Infinity Micro Computer, Inc., et al. v. Continental Casualty Company, et al., 2016 U.S. Dist. LEXIS 134957 (C.D. Cal. Sept. 29, 2016).

In

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Infringement of Adult Images Ex(xx)ed Out of Coverage
July 19, 2016 | Intellectual Property | Insurance Coverage

The U.S. District Court for the Western District of Texas recently rejected an attempt by two online content providers to secure coverage in connection with a copyright infringement action commenced against them by an adult entertainment company.[1]

Perfect 10, Inc. (“Perfect 10”) filed an action against Giganews, Inc. (“Giganews”) and Livewire Services, Inc. (“Livewire”) for

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Cannata and Misiti issue Bulletin entitled, “No Coverage For The Sale Of Counterfeit Goods”
June 6, 2016 | Insurance Coverage | Intellectual Property

Businesses that peddle counterfeit goods beware.  According to a recent decision by the Second Circuit, the advertising injury provisions of a standard general liability policy do not obligate an insurer to indemnify its insured for damages resulting from the insured’s sale of counterfeit goods.  Given that the MSRP for all goods seized by the Department

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Insurance Coverage Claims are “Non-Core,” New Jersey Bankruptcy Court Confirms
June 30, 2015

 

A New Jersey Bankruptcy Court recently confirmed that questions of insurance coverage arise under state law and typically are not core matters subject to being resolved by bankruptcy courts. The authors of this article discuss the decision and its implications.

A New Jersey bankruptcy court, in In re John A. Rocco Co.,

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