Category: Law

Copyright, Entertainment, Infringement, Law, Patent, Trademarks

Ping® by Adlerlaw August 2025 Don’t Monkey With NFTs & Nintendo’s Aggressive IP Tactics

Yuga Labs NFT Trademark Dispute Continues.

A jury must decide if the spoofed monkey-themed NFTs misled consumers in the case against Ryder Ripps. NFTs are digital assets. Yuga Labs launched Bored Ape Yacht Club in April 2021. These NFTs are digital images of cartoon apes with various traits and accessories, residing on the Ethereum blockchain. BAYC is known for its exclusivity, limited access, and influence within the NFT space. NFT trading has surged recently, reaching Billion Dollar valuations. Read more here: [LINK]

Nintendo Demonstrates Aggressive IP Tactics

Digital content creators should pay attention to Nintendo’s ongoing lawsuit against Palworld alleging the Pokemon-inspired survival game had infringed on several of Nintendo’s patents revolving around various game mechanics. Nintendo just recently filed corrections on three of the patents involved in a lawsuit with the Japan Patent Office revising the wording of game mechanics Nintendo. Nintendo’s last-minute patent changes have provoked outrage. Read more here: [LINK]

AV Voice Text Clones & Copyright Law

On a related note, AV voice text clones do not violate copyright laws. The Southern District of New York issued ruled in Lehrman et al v. Lovo, Inc., 1-24-cv-03770 (SDNY Jul. 10, 2025) that actors’ voice recordings used to create AI-generated voice clones “identical to” the Plaintiffs’ voices as part of a text-to-speech service was not copyright infringement.

Corporate Law, Entertainment, Law, Legislation, llinois

Boost Your Legal Knowledge with Ping® by Adlerlaw

Hi! Welcome to Ping®! I hope you stay with us.

Ping® started over 25 years ago. It grew from my experiences running the Entrepreneurial & Start-up Ventures Committee and the Media, Arts & Entertainment Committee of the Chicago Bar Association. I also gained insights from public speaking in the areas of intellectual property, information technology, privacy, security, and social media.

Every forum meeting or presentation ended with in-depth questions from the audience. Since I rarely had time to answer these questions or provide any depth to my response, I decided to publish Ping®. These articles share my knowledge and educate creative professionals to be better consumers of legal services.

This month Ping® by Adlerlaw looks at new laws in Illinois, as well as upcoming Interior Design CEUs. See more here.

Branding, Law, Marketing, Trademarks

Eagle Rare Unable to Claw Away Eagle Trace in Battle Over Eagle Park. 

Eagle statue

Applicant, Eagle Trace Brewing Company LLC, applied to register the following standard-character marks on the Principal Register: EAGLE PARK DISTILLING for “distilled spirits; alcoholic beverages, except beer” in International Class 33;1 and EAGLE PARK BREWING COMPANY for “alcoholic beverages, namely beer” in International Class 32.

Sazerac Brands, opposed both applications on the ground of likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), asserting prior rights in and ownership of marks registered on the Principal Register: EAGLE RARE (standard characters) for “bourbon whiskey” in International Class 33;3 and for “whiskey” in International Class 33.

Despite some similarities, including the presence of the word Eagle in the marks, the Board dismissed the opposition.

Read the USPTO TTAB decision here: 

Click to access ttabvue-91272260-OPP-46.pdf

Get In Touch

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Toll free Phone & Fax: (866) 734-2568

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Business, Copyright, Creative Content, Entertainment, Law, Media, Music

Ping® by Adlerlaw – The Copyright Implications Of AI-Generated Music

Do you feel like the subject of AI has entered almost every conversation?

This month’s issue of the Ping® Newsletter looks at the Copyright Implications of AI-Generated Music.

For creative professionals and especially musicians, trying to evaluate the impact of AI on both creative and commercial rights and music, raises more questions than it answers. For our quick and by no means exhaustive summary of some of these questions, read more below.

The Copyright implications of AI-generated music is fast becoming a major issue as AI tools capable of creating music that mimics human artists have proliferated. Some key questions include whether AI-generated music can be copyrighted, who owns the rights to AI-generated music, and whether using copyrighted works to train AI models constitutes infringement.

For a discussion of four questions on this topic, visit the Ping® post on adler-law.com. Those questions are:

1. What Is The Current Legal Stance?

2. How Much Human Involvement is Necessary?

3. What Is The The Originality Requirement.

4. What Is Shaping The Ongoing Debate?

Read the full article here.

Please do not hesitate to contact us with any questions, comments or concerns you may have around this issue.

Advertising, Branding, Business, Design, Infringement, Law, Trademarks

Ping® By Adlerlaw – The Importance of Trademarks for Lighting Designers.

A recent Trademark Trial and Appeal Board (TTAB) decision is noteworthy for the lighting-design industry. This trademark application rejection sheds light on strategies for lighting designers seeking to protect their trademarks. This begins with the approach to the application process itself. 

In In re B-K Lighting, Inc., Serial No. 88769422 (January 27, 2023) [not precedential], the USPTO refused to register “AGI2” for “lighting fixtures,” finding confusion likely with the registered mark “AGI & Design” for lights, lighting assemblies, and light fixtures for architectural signage. As is often the case, applicant B-K Lighting was left scrambling to distinguish its trademark from the cited “AGI & Design” registration. The TTAB’s analysis of nature and relatedness of the goods, the trade channels, and the classes of purchasers, may be helpful to other brands in the lighting industry when trying to protect their trademarks.

Read the full article here.

Business, Contracts, Design, Entrepreneurs, Law, Legislation, llinois, New York

Ping® by AdlerLaw July 2022 – Recent State Laws in Illinois & New York Affect Contractors, Interior Designers

This month’s issue of Ping® highlights recent changes in State laws in Illinois and New York. Effective January 1, 2023, Illinois joins at least 18 other states to have a Title Act authorizing Registered Interior Designers to seal any bound set or loose sheets of technical submissions. This change can only benefit everyone in the industry including, designers, tradespersons, and most importantly, consumers. Also noteworthy is New York’s legislative approval of NY State Senate Bill S8369B relating to protections for freelance workers. The Freelance Isn’t Free Act (the “Act”) if signed, would amend the New York Labor Law to establish rights for covered freelance workers such as the rights to receive a written contract, receive timely and full payment, and freedom from retaliation. 

Illinois: Legislation relating to Registration & the Scope of Practice of Interior Designers

Effective January 1, 2023, Illinois joins at least 18 other states to have a Title Act authorizing Registered Interior Designers to seal any bound set or loose sheets of technical submissions. This change can only benefit everyone in the industry, designers, tradespersons and most importantly, consumers as it will expedite some customary but often needlessly duplicated tasks.

The Title Act puts no stumbling blocks before those who wish be interior designers. These statutory provisions and rules do not regulate the practice of interior design – anyone can offer to provide and provide interior design services in Illinois. The Illinois act only regulates the use of a specific title – “Illinois Registered Interior Designer.”

Illinois is one of 19 states, including neighboring Minnesota, Wisconsin and Iowa, that have voluntary title registration for interior designers with no permitting authority. In addition, 21 other states, including Michigan, have no title laws or permitting authority for interior designers at all. Proponents of regulating interior design submit that interior designer registration requires industry recognized credentialing and rigorous testing.

If you have questions about the Act’s application to your business, or about the pros/cons of becoming a Registered Interior Designer, or if you need assistance navigating the credentialing process, please feel to contact me for more information. (866)734-2568 and David [at] adler-law.com.

New York: State Legislature Approves Statutory Protections For Independent Contractors

New York’s legislative approval of NY State Senate Bill S8369B relating to protections for freelance workers. The Freelance Isn’t Free Act, if signed, would amend the New York Labor Law to establish rights for covered freelance workers such as the rights to receive a written contract, receive timely and full payment, and freedom from retaliation. 

The Act establishes protections for certain freelance workers providing services for entities located in the City. The New York State Legislature had earlier this month approved a bill providing similar protections to freelance workers throughout the state. If signed by the Governor, the Act will take effect 180 days after signing and apply to contracts entered into with certain independent contractors on or after that effective date. The Act mirrors the City-specific text in almost all respects and amends the New York Labor Law to establish protections for covered freelance workers, including establishing rights for covered freelance workers such as the rights to receive a written contract, receive timely and full payment, and freedom from retaliation.

Independent Contractors

If you or your business is contracted to perform specific work for an “employer,” according to your own process, using your own resources, and outside the daily control of the employer, you are an independent contractor. Independent contractors are not considered employees. This creates risk and benefits for both parties. Considered self-employed, independent contractors do not receive most of the rights and benefits that employees receive from employers or by virtue of federal and state employment laws, particularly the Fair Labor Standards Act. In addition, independent contractors are responsible for paying all applicable federal, state and local taxes from the income you receive. However, civil rights law does apply to independent contractors in their relationship to employers. Independent contractors go by many names, including, freelancer, contractor, or consultant.

However, unlike an employee, the terms of the relationship between an independent contractor and the employer are subject to negotiation and may not always be presumed or mutually understood. For example, the terms of your work assignment, and who owns the finished (or in process) work product. For example, if you are a photographer working as an independent contractor, you retain the copyright to your photos even after delivering it to the employer, unless you have a written agreement explicitly stating the services are “work-made-for-hire,” specially commissioned, or otherwise assigned away. As an independent contractor, you will be paid according to the terms of your agreement, not according to the employer’s customary payroll. One of the biggest challenges for independent contractors is getting paid, but these risks can be addressed by properly considering  this issue prior to commencing work.

Focus | Vision | Perspective | Passion

Executives and creative professionals face an often confusing and dynamic set of challenges trying to ensure that their business remains legally compliant. Yet few can afford the highly-qualified and versatile legal staff needed to deal with today’s complex and inconstant legal and regulatory environment.

Adler Law Group is a boutique Entertainment, Intellectual Property & Media law firm created with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business. Although we are a highly-specialized law firm, we counsel on a broad range of interconnected issues by leveraging synergies created where Intellectual Property Law, Contract Law and Corporate Law overlap.We approach our relationship with each client as a true partnership and we view our firm as an extension of their capabilities. Our primary value is our specialization on relevant and complex issues that maintain the leading edge for our clients. We invite you to learn more about the services we offer and how we differ.

Advertising, Affiliate Marketing, Business, Compliance, Content Development, Facebook, Influencer Marketing, Law, Marketing, Technology

Ping® May 2022 – Improving Affiliate Engagement

Affiliate Marketers: Want to learn best practices, strategies, and tactics from a seasoned legal professional who works with businesses and regulators at the federal and state levels? 

David Adler takes clients through the ins-and-outs of providing advertisers, merchants, agencies and affiliates the tools they need for running a trustworthy and successful business.

On May 25, 2022 David Adler is presenting Trafficking in Trust: How to Enhance Affiliate Engagement an AMDays Workshop at Affiliate Summit East 22. In case you can’t make the presentation, here’s an excerpt of one of the topics covered:

The 3 C’s of Affiliate Marketing Disclosures: Clear Conspicuous Content. 

Clients often seek my counsel on issues related to Affiliate Marketing legal disclaimers and disclosures. For example, this might require guidance on the substance and placement of legal disclaimers for a consumer-oriented, product review and ratings website. This type of website needs to include at least two different, but related, disclosures. First, it must disclose that it is compensated when a user clicks on a link. Second, it must disclose certain material connections. 

Affiliate Disclosure Content

There are several factors to the affiliate commission disclosure. Appropriate disclosures have both the necessary content and the correct placement within a specified context.

What needs to be in your affiliate commission disclosure? 

The disclosure must make clear that you earn a commission if a user buys something after clicking on a link on your site.

Affiliate Disclosure Context

Where is the optimal location for the disclosure?

Although there is a general practice of putting disclosures on the bottom of the website pages, it can be somewhat obscured and less effective. A location at the bottom of the page, in the same font style, font color, size, and placement as the rest of the text on the bottom of the page, does not help it “stand out.”   

The key to proper affiliate link disclosures is making sure the disclosure is “clear and conspicuous.” This depends on both context (placement and proximity to the relevant content) as well as the content of the disclosure itself.  The general rule is that the closer the disclosure is placed next to the relevant message, the better.

Although not required, it is recommended to add the affiliate link disclosure on the home page, above the fold. While there is no explicit requirement, FTC disclosure cases and guidelines suggest that, in their view, this is required for adequate disclosures. 

What should I do now? Always seek experienced counsel. A seasoned lawyer will help you address other considerations including prominence, distractions, industry vertical (i.e. healthcare, financial services) requirements, and language. 

Business, Chicago, Cloud, cloud computing, Compliance, Contracts, Copyright, Corporate Law, Corporations, Law, LLCs, Mergers & Acquisitions, Small Business, Start-ups, Trademarks

Ping® January 2022 – Reminder To Review Your Contracts

Review Your Contracts Every Year.

One of the most important tools to protect your business – your ideas (copyrights, trademarks, trade secrets, confidential and proprietary information), customer relationships and talent pool – is your written contract. Your contract is the foundation for a reliable relationship for you, your customers and your employees. More importantly, it helps to prevent misunderstandings and false expectations that can lead to a breakdown in your customer relationship, jeopardize projects, or even worse, result in litigation.    

Starting with a form is just OK.

Many companies start with a model or “form” contract adapted from forms available online or drafted when the business first started.  Oftentimes, I am presented with form contracts “downloaded from the Internet” or provided by a form-filling service that will do cheap and quick corporations or LLCs, without actually providing any legal services. Although these forms may be a good starting point, your business needs, it deserves, contracts tailored to the specific needs of the enterprise or relationships.

Franken-contracts can ruin your business.

As businesses develop over time, you may have revised your contracts, adding a little here, removing a little there. Maybe you read an article about an important case in your industry and decided to add some text from the contract discussed in the court’s legal opinion. In many cases, over time, the agreements become “Franken-contracts” an odd amalgamation of trade lingo, inconsistent terms and even contradictory conditions. At best these are ambiguous and confusing to read. At worst, they become unenforceable.

Review contract annually to avoid weak spots.

At some point, you should review, revise and generally “tighten” existing contracts. You should have your lawyer review them to make sure that there are no mistakes, ambiguities or omissions that could cost you or your customers. I urge clients to have their contract forms reviewed on an annual basis. Depending on changes in the law, changes in the industry or changes in your own business, this process should only take a few hours.

Contact us for a free, no-obligation consultation.

To learn more about how we can help your with your business and contracts, contact the Lawyers at the Adler Law Group at David @ adler – law . com (without spaces) or (866) 734-2568. Learn more abut us here:

http://www.adler-law.com

Business, Contracts, Corporate Law, Corporations, Entrepreneurs, Law, Legislation, Noncompete

Ping® October 2021 Changes Coming to Non-Compete Agreements in Illinois

EMPLOYMENT (820 ILCS 90/) Illinois Freedom to Work Act.

Illinois passed a law that amends the Illinois Freedom to Work Act. Expands the scope of the Act to apply to all employees (rather than only low-wage employees). Prohibits all covenants not to compete.

Scope

The law goes into effect January 1, 2022 and amends the Freedom to Work Act (the Act), which restricts the use of non-compete agreements for low wage workers. For the first time, Illinois will have statutory requirements for mandatory review periods, definitions of adequate consideration and legitimate business interests, as well as specific salary minimums for employees subject to restrictive covenants. 

Application

The law will apply to non-compete and non-solicit covenants. The law does not apply to contracts covering confidential and proprietary information, protection of trade secrets, or inventions assignment agreements. The law also does not address covenants for independent contractors, and expressly carves out restrictions on a person purchasing or selling the goodwill  or an ownership interest in a business.

Mandatory Review

The law requires that an employer advise the employee in writing to consult with an attorney prior to entering into the covenant and provide the employee with at least 14 calendar days to review the agreement. 

Consideration

Contract lawyers know that to be enforceable a promise must be supported by consideration. Due to the unique nature of restrictive covenants, there is heightened scrutiny of what will constitute sufficient consideration for a restrictive covenant under the Illinois law. The leading Illinois case, 

Fifield v. Premier Dealer Services, Inc., 993 NE 2d 938 (Ill.App.1st 2013), an Illinois court decided that mere employment or continued employment for at-will employees, is not adequate consideration to support a restrictive covenant unless the employee remains employed with the employer for at least two years after signing the agreement. 

Illinois law will now expressly defines “adequate consideration” as either (1) the employee working for the employer for at least two years after signing the non-compete or non-solicitation covenant or (2) other sufficient consideration, such as “a period of employment plus additional professional or financial benefits or merely professional or financial benefits adequate by themselves.”

The law leaves open the definition of “additional professional or financial benefits.” Courts have found signing bonuses, equity grants, and other types of consideration sufficient under current case law. 

Going Forward

While there is time to plan for the effect of the new law, it’s not too soon to begin reviewing current existing “form” contracts and consider changes. One-size-fits-all contracts always need fine-tuning. Change sin the business operating environment require a closer look at non-compete and non-solicitation covenants. 

Advertising, Affiliate Marketing, Branding, Business, Content Development, Creative Content, Design, Entertainment, Evidence, furniture, Law, Marketing, Patent, Strategy, Trademarks

Ping® – Arts, Entertainment, Media and Advertising Law News – Protecting Furniture Design Keeps Getting Harder

Herman Miller, Inc. – a leading furniture brand and purveyor of the iconic Eames Chair Design – suffered a loss at US Trademark Trial and Appeal Board (TTAB) in its bid to protect as “trade dress” the design of the chair. The case involves a well-known chair design dating from the 1940’s, by designers Ray and Charles Eames. The chair ultimately was recognized by Time Magazine as the Best Design of the 20th Century, and now is in the design collections of numerous museums. Herman Miller sought registration of most of the chair’s configuration as a mark, depicted in more than one view, for “furniture, namely, chairs.”

The court weighed each of the Morton-Norwich factors, concluding that the proposed three-dimensional product configuration as a whole indicates that it is functional. The court found that patent evidence, the advertisements touting utilitarian advantages of the design, and the limited availability of alternative designs that would work equally well, proved functionality.

Key Take Aways:

  1. Beware of patent evidence in trade dress protection due to risk that distinctive design elements be treated as de jure functional. In general, examining attorneys no longer make this distinction in Office actions that refuse registration based on functionality. De facto functionality is not a ground for refusal. In re Ennco Display Sys. Inc., 56 USPQ2d 1279, 1282 (TTAB 2000); In re Parkway Mach. Corp., 52 USPQ2d 1628, 1631 n.4 (TTAB 1999).
  2. Ensure that advertising promotes the nonfunctional design elements, such “look for” advertising. Examples include evidence, including SEO data, that connected the applicant’s efforts to promote the applied-for mark as a trademark and consumers’ ability to conceive of the applied-for mark as such, and examples of unsolicited media coverage