Congress tucked major trademark and copyright legislation into the almost 6,000 page COVID-relief stimulus package it passed in the waning days of 2020. Overall, these changes will make it easier for rightsholders to pursue infringement claims going forward.

On the trademark front, the stimulus bill contained the “Trademark Modernization Act of 2020.” The TMA formalizes the ability of third parties to submit relevant evidence regarding the registrability of a proposed trademark to the PTO via a Letter of Protest, and establishes an ex parte process for expunging trademark registrations when the mark is not actually used with the recited goods or services any time following the third-year anniversary of registration. The TMA now allows the Patent and Trademark Office to shorten the time for responding to an office action to as little as 60 days. The TMA also reaffirms that a “rebuttable presumption of irreparable harm” arises once trademark infringement is otherwise shown, which will make it easier for marks holders to obtain preliminary and permanent injunctions. This changes the prevailing law in the Ninth Circuit, and resolves a growing circuit split on whether that presumption remained good law after the Supreme Court’s Ebay decision (discussed previously here). Continue Reading