Within the Consolidated Appropriations Act of 2021, along with a new Covid relief package, were three intellectual property laws you may be interested in knowing about: The Copyright Alternative in Small-Claims Enforcement Act (CASE), the Trademark Modernization Act (TMA) and a law penalizing certain online streaming services that sell access to infringing works. The new laws took effect on January 1, 2021.
The CASE Act creates a tribunal at the US Copyright Office that will handle copyright infringement disputes for claims of $30k or less in damages. It is also designed to prevent abusive use of copyright claims. The law allows a newly formed Copyright Claims Board to address disputes related to improper DMCA notices and counter-notifications. Under current law (Section 512 of the Copyright Act) these disputes are too costly for most claimants.
The TMA makes several changes to existing trademark law:
- It provides for ex parte proceedings before the Trademark Office to expunge or reexamine a trademark registration based on non-use.
- It allows third parties to submit evidence during the prosecution of trademark applications related to why an application should be refused registration.
- Provides a statutory rebuttable presumption of irreparable harm that attaches when a plaintiff has proven infringement or liability or demonstrated a likelihood of success on the merits. This lowers the evidentiary burden on successful trademark plaintiffs to obtain an injunction.
- It gives the U.S. Patent and Trademark Office director “the authority to reconsider, and modify or set aside, a decision of the Trademark Trial and Appeal Board.” The Act contains provisions aimed at confirming that the TTAB judges are inferior officers of the United States and that they are not subject to the Federal Circuit’s decision in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), holding appointment of PTAB judges unconstitutional. (Arthrex is on appeal before the Supreme Court).
- It codifies the Letter of Protest procedures.
- It amends the Lanham Act to allow the USPTO flexibility in setting office action response times – meaning shorten them to between 60 days and 6 months.
Felony for Illegal Streaming Services
The bill makes it a felony for streaming services to pirate copyrighted material where the service is primarily designed for the purpose of performing copyrighted works for commercial advantage or private financial gain and has no other commercially significant purpose. The bill provides for penalties including fines, imprisonment, or both.