We are proud to announce that nine Seyfarth lawyers have been recognized as 2025 World Intellectual Property Review (WIPR) Leaders, an honor that celebrates the “very best of the global IP legal profession.” Each honoree was selected for their proven track record, strong peer endorsements, and outstanding contributions to the intellectual property field.

The following Seyfarth attorneys were named WIPR Leaders in their respective areas of focus:

  • Jesse Coleman, Co-Chair of Seyfarth’s Health Care Industry Practice – Contentious Trade Secrets
  • Edward Maluf, Intellectual Property Partner – Non-Contentious & Contentious Trademarks
  • Dawn Mertineit, Trade Secrets, Computer Fraud and Non-Competes Partner – Contentious Trade Secrets
  • Lisa Meyerhoff, Intellectual Property Partner – Contentious Patents
    • Additionally cited as Highly Recommended for USA Patents 2024
  • Brian Michaelis, Intellectual Property Partner – Non-Contentious Patents
  • Jay Myers, Director of Innovation for Seyfarth’s IP practice group – Non-Contentious Trademarks
  • Kate Perrelli, Trade Secrets, Computer Fraud and Non-Competes Partner – Non-Contentious & Contentious Trade Secrets
  • Michael Wexler, Trade Secrets, Computer Fraud and Non-Competes Partner – Contentious Trade Secrets
  • Ken Wilton, Intellectual Property Partner – Contentious Trademarks

This recognition underscores the strength and depth of Seyfarth’s Intellectual Property team, which partners with clients—from Fortune 500 companies to fast-growing startups—to identify, protect, and maximize the value of their intellectual property rights across the globe.

Our Intellectual Property Counseling & Prosecution practice delivers strategic advice across the full IP lifecycle, while our Trademark & Copyright Prosecution group helps clients create and protect distinctive brands, navigate complex global regulations, and defend their valuable IP assets.

Congratulations to our 2025 WIPR Leaders!

Beginning May 13, 2025, the window between paying the issue fee and your patent officially issuing will become much shorter.

Until now, after paying the issue fee, applicants typically had a comfortable three weeks (sometimes longer) to file a continuation or divisional application. It was not an enormous amount of time, but it was usually enough to grab a coffee, think it over, and get your paperwork filed.

Starting May 13, 2025, you will have about one week.

For anyone who files continuation or divisional applications, this is a major shift. In short, the clock will be ticking much faster, and you will need to be ready.

Quick Refresher: What Are Continuations and Divisionals?

Simply put, a continuation application lets an applicant pursue additional claims based on the embodiments disclosed in the original specification. You might be seeking broader protection, or you may want to focus on a different embodiment. Either way, it gives you another opportunity to build on the original filing, so long as the initial application is still pending (i.e., the patent has not issued).

A divisional application comes into play when the USPTO tells you that your application covers more than one invention and asks you to choose one. You file a divisional to protect another invention that was disclosed but not pursued in the parent application.

The key thing to remember is that you must file continuation and divisional applications before the parent patent issues. Once the patent is issued, the door largely slams shut. Technically, you can file a petition to re-open prosecution, but it involves paying a fee and re-opening your patent to further examination. That is not ideal unless you have no other choice.

The Best Move: File Before Paying the Issue Fee

The smartest approach is to file any continuation or divisional application before you even pay the issue fee. The good news is this is not a heavy lift. When you receive a Notice of Allowance, you have three months to pay the issue fee. That gives you plenty of time to review your strategy, make decisions, and get any necessary continuation or divisional applications on file before the patent cruises toward issuance.

Here are some best practices to follow:

  • Build continuation and divisional discussions into your standard Notice of Allowance review.
  • Set internal deadlines to finalize your strategy before paying the issue fee.
  • Treat the issue fee payment as a warning siren, not the starting gun.

Long story short, do not wait until the last minute. Patent law rewards the early birds, and starting May 13, early birds will be the only ones who get the worms.

On Thursday, April 24, Seyfarth IP associate and International Trademark Association (INTA) Digital Event Committee member, JC Zwisler, will be a featured panelist in the International Trademark Association (INTA)’s virtual program: “INTA FOMO – How to Get to, and Make the Most of, The Annual Meeting”

Hosted by INTA’s Digital Events Committee, this practical and engaging session is designed for young practitioners with five or fewer years of experience in the brand legal profession. The panel will provide advice on gaining internal support to attend the Annual Meeting, tips for scheduling meetings with foreign associates and prospective clients, and how to make the most of the networking and educational opportunities available.

JC will join a dynamic panel of professionals from around the globe to share lessons learned, personal experiences, and actionable guidance for making the INTA Annual Meeting a springboard for professional development and meaningful connection.

Whether you’re new to INTA or attending the Annual Meeting for the first time, this webinar offers valuable insights to help you maximize your time—and make your presence count.

Register here to reserve your spot and start building your INTA game plan.

After weeks of hypothetical buzzer-beaters, patent face-offs, and a few well-placed Braveheart reference, Innovation Madness has crowned a champion.

And just like in the real NCAA tournament, the championship run was full of upsets, old-school dominance, and the thrill of seeing true innovation take center court. While Florida took home its third national title after a comeback win over Houston, here in the world of basketball inventions, the final moments came down to two titans of the game: The Basketball and Basketball Shoes.

But before we get to the winner, let’s rewind.

The Final Four

The matchups were as fierce as expected.

(1) The Basketball (1929, US1,718,305) vs. (11) Orange Basketball

The Basketball faced off against the crowd-favorite Orange Basketball, the mid-century breakthrough that made the game easier to follow for players, fans, and television audiences. As much as the high-visibility hero has earned its iconic status, it simply could not overcome the fundamental truth that the game begins and ends with the ball.

(2) Basketball Shoes (1934, US1,962,526) vs. (4) Basket Suspension System (1930, US1,757,350)

On the other side of the bracket, Basketball Shoes took on the Basket Suspension System, the mechanical setup that gave us retractable hoops and transformed school gyms into multipurpose arenas. While the suspension system has aged remarkably well, basketball-specific footwear has defined player performance for generations. In the end, the shoes advanced to the final.

That left us with the ultimate showdown.

The Championship Matchup

(1) The Basketball (US1,718,305) vs. (2) Basketball Shoes (US1,962,526)

It was an all-time matchup. One gave rise to the entire sport. The other allowed players to take it to new heights.

John T. Riddell’s 1934 basketball shoe patent introduced rubber soles designed specifically for basketball courts. It provided grip, support, and the basis for decades of athletic footwear innovation. From Converse to Jordans, every major leap in basketball culture has had a shoe to boot. Footwear has defined eras, turned players into icons, and even become the subject of movies and documentaries. But while the shoes may carry the player, it’s the ball that carries the game.

George L. Pierce’s 1929 basketball patent introduced balanced panels with rounded polar regions, stronger materials in key stress zones, and a more symmetrical shape that dramatically improved how the ball felt in the hands. His innovation eliminated the weaknesses of earlier designs and gave rise to the basketball as we know it today.

The panel shape and construction method are still used in modern basketballs, even with the evolution of synthetic materials. His work brought balance, improved grip, and predictable bounce. Most importantly, it brought consistency to a sport that was growing rapidly in popularity.

Why the Basketball Won

Yes, shoes help players move better, jump higher (it’s gotta be the shoes!), and reduce injury. They are essential to the player’s experience on the court. Over the decades, basketball footwear has evolved from simple rubber soles into a multi-billion-dollar industry driven by performance, style, and cultural influence.

Today, shoes are part of the game’s identity. The Jordan brand alone has become a global powerhouse, transcending basketball and embedding itself in fashion, music, and pop culture. Players are not just known for their stats; they’re known for their signature sneakers.

But the fact remains: no matter what’s on your feet, the game doesn’t start without the ball.

Pierce’s invention standardized the tool that every player touches, every fan watches, and every play depends on. Without it, there is no shot, no rebound, no buzzer-beater.

Final Thoughts

The Basketball has earned its spot at the top of the bracket because it did what every great invention should do. It solved a problem, redefined a standard, and withstood the test of time.

Thank you for following along with this year’s Innovation Madness. Whether you’re a patent practitioner, a basketball fan, or just someone with bracket trauma (sorry, Duke!), we hope you had as much fun as we did.

Until next year, keep inventing, keep creating, and never underestimate the power of a good idea.  And if you’re ever in the need for a good patent attorney, I know someone that can help.

The NCAA tournament crowned a new champion Monday night—and what a finish it was.

The Florida Gators stormed back from a double-digit deficit to snatch victory from the Houston Cougars, who couldn’t even get off a final shot. The drama was only heightened by Houston’s buzzer-beating win over Duke in the previous round. There’s only one way to describe it: Madness.

Congratulations to Florida on capturing their third national title, their third since 2006—when they upset none other than the UCLA Bruins (the most storied program in college basketball history, and no, I’m not bitter at all… it’s not like I skipped my Con Law class to watch that game or anything, or traveled all the way to Atlanta in 2007 only to watch Florida take down UCLA again in the Elite Eight.  Nope.  Totally fine. Not bitter. At all).

Welcome back to Innovation Madness, where game-changing basketball inventions go head-to-head to determine which patent truly changed the game. We’ve narrowed the field to eight elite contenders. The matchups are fierce. The stakes are patently high. Let’s tip it off.

Our elite eight matchups are over. Here’s how the games went down:

(1) The Basketball (1929, US1,718,305) vs. (9) Jump Training Apparatus (1961, US3,012,781)

The Breakdown:
The Jump Training Apparatus had a strong Round 1 showing, elevating (literally) the art of vertical improvement. But let’s be real: the ball is the game. George L. Pierce’s 1929 patent gave us the first purpose-built basketball, with improved grip and bounce that set the standard for every dribble, pass, and shot to come. Without this? There’s no need for training tools—or a game at all.

Winner: (1) The Basketball

(2) Basketball Shoes (1934, US1,962,526) vs. (10) Basketball Return Device (1966, US3,233,896)

The Breakdown:
The Return Device won hearts (and saved legs) in Round 1, giving shooters a way to train without chasing balls. But basketball-specific shoes—particularly Riddell’s 1934 patent with grippy rubber soles—revolutionized how the game is played. From traction to ankle support, this was the crossover (pun intended) from casual to elite performance.

Winner: (2) Basketball Shoes.

(3) Basketball Basin Holder (1891, US451,715) vs. (11) Orange Basketball

The Breakdown:
This matchup reads like a chapter in basketball’s origin story. On one side, the Basketball Basin Holder, an early innovation and a crucial step toward the modern net. On the other, the Orange Basketball, Tony Hinkle’s 1950s breakthrough that didn’t just change how the game was played, but how it was seen.

Now, credit where it’s due: the basin holder helped take us from peach baskets to more functional hoops. But it still kept the game, quite literally, stuck in a basket.  Meanwhile, the Orange Ball brought clarity, visibility, and unmistakable identity to the sport. Call it controversial if you must, but like Houston’s buzzer-beater over Duke, the Orange Basketball sneaks in at the last second, and steals the win.

Winner: (11) Orange Basketball

(4) Basket Suspension System (1930, US1,757,350) vs. (12) Training Basketball (2015, US9,149,701)

The Breakdown:
The Training Basketball, complete with finger guides and form-correcting indentations, was the darling underdog of Round 1. But now it runs into William Wallace’s ceiling-mounted Basket Suspension System, which turned crowded gyms into multi-use spaces and enabled retractable hoop setups decades before motorized lifts. Let’s be honest: this wasn’t even a fair fight. The Suspension System didn’t need to wear blue face paint or battle from atop a horse, this one was over before the tip-off.

Winner: (4) Basket Suspension System

Your Final Four:

  • (1) The Basketball
  • (2) Basketball Shoes
  • (11) Orange Basketball
  • (4) Basket Suspension System

A powerhouse lineup of fundamental innovations. Sure, some might call the Orange Basketball an underdog, but maybe, just maybe, we seeded it wrong. (We’ve made one or two mistakes in our lives—it’s not like this bracket was seeded by AI. Skynet’s still a few years away from becoming a basketball fan… hopefully basketball survives Judgment Day.) Still, visibility matters, and this high-contrast hero has proven it can hang with the heavyweights.

Next Up: The Final Four

Can the basketball defend its #1 seed? Will net nostalgia win out over suspension systems and footwear dominance? The stage is set, the stakes are high, and every innovation left on the board helped define how we play the game today.

Stay tuned for the Final Four breakdown—and the road to the championship.
Because in Innovation Madness, one idea cuts down the nets.

When we kicked off Innovation Madness: The Ultimate Basketball Patent Bracket, we asked one simple question: Which basketball invention truly changed the game?

Now, as the actual NCAA tournament has narrowed down to the last four teams, featuring all four No. 1 seeds for the first time since 2008 (and only the second time ever), it’s clear: this is not the year for Cinderella stories.

And in our bracket? Round 1 played out with a similar lack of upsets. Classics held strong. Foundational tech rose above. A few training tools gave it a good run, but when the dust settled, it was the heavyweights that mostly moved on.

We’ve recapped all six matchups from the opening round, here’s how each battle played out:

(8) Spiral Metal Hoop Connector (1936, US2,053,635) vs. (9) Jump Training Apparatus (1961, US3,012,781)

The Matchup:
Prior to the ‘635 patent, nets were attached using cords, ties, or loops that were time-consuming to install and easily worn down with use. The spiral hoop connector introduced a tieless net-attaching system featuring integrated spiral wire connectors that allowed nets to be manually attached or removed without separate cords or laces. That alone is a massive convenience upgrade, but there’s more. This patent also incorporated a reinforcing bar beneath the rear of the rim, designed to absorb and redistribute the stress from constant vibration caused by the ball hitting the rim. The spiral metal hoop connector addressed one of the most frequent failure points in basketball goal systems. In fact, this is still a common engineering approach in modern hoop design.

The Breakdown:
While the Jump Trainer helps individual players, the Spiral Metal Hoop Connector helps every player by keeping the rim strong, the net secure, and the game flowing.

Winner: (8) Spiral Metal Hoop Connector

(5) Early Basketball Goal (1909, US922,630) vs. (12) Training Basketball (2015, US9,149,701)

The Matchup:
This one pits infrastructure against instruction. On one side, we have Milton Reach’s 1909 basketball goal system, a major leap forward in bringing order to what had been a very improvised game. Before patents like this, hoops were often literal fruit baskets nailed to the wall, with no standard dimensions, mounting hardware, or stability. Reach’s invention introduced a wall-mounted goal with slots, pins, and spring-loaded mechanisms, making hoops easier to install, remove, and replicate—paving the way for standardized play.

On the other side, we have the Training Basketball, designed to help players develop proper shooting form. This smart ball features built-in indentations to guide hand placement, allowing shooters, especially beginners, to build muscle memory and consistency with every rep.

The Breakdown:
Reach’s goal was a building block for every modern backboard and hoop system.  It professionalized how the game was played.  The Training Basketball is innovative and useful, but its scope is limited to one aspect of the game, shooting, and mostly helps beginners.

Winner: (5) Early Basketball Goal

(4) Basket Suspension System (1930, US1,757,350) vs. (13) Shooting Form Guide (2018, US10,080,944)

The Matchup:
In this battle, we’ve got heavy-duty gym architecture facing off against modern shooting science.

William Wallace’s 1930 Basket Suspension System is directed to a ceiling-mounted backboard and hoop that could be raised out of the way when not in use. At a time when gymnasiums were shared with other sports, assemblies, and even dances, this invention introduced much-needed flexibility. It’s the ancestor of today’s motorized retractable basketball systems. Like the legend he shares a name with, this Wallace delivered freedom—in the form of ceiling-mounted backboards.

The Shooting Form Guide, patented in 2018 by Patrick Bowling, is designed to correct bad habits and build muscle memory with precision—basically, a pop-up shooting clinic built right onto the hoop.

The Breakdown:
While the form guide is clever, Wallace’s invention reshaped how gyms are physically built. Plus, it allows us to keep using Braveheart references.

Winner: (4) Basket Suspension System.

(3) First Basketball Net (1891, US451,715) vs. (14) Tipping Trainer (1955, US2,710,189)

The Matchup:
This one’s a battle between a fundamental shift in how the game is played and a tool for mastering a very specific, but valuable, skill.

In the red corner: Hiram B. Rockhill’s 1891 Basketball Net. This patent marked the end of the peach basket era and the beginning of modern basketball. By creating an open-ended net, Rockhill eliminated the need to manually retrieve the ball after every made shot. This literal game-changer increased the pace and fluidity of play. It also introduced the visual feedback we take for granted today: the satisfying swish of the net. No net, no “nothing but net.”

In the blue corner: the Tipping Trainer helps players practice the underrated art of tipping missed shots back into the hoop. It’s a smart solution to a real training challenge, helping athletes work on timing, positioning, and touch, especially valuable for bigs and rebounders.

The Breakdown:
We love an underdog. But the First Net changed everything. This one wasn’t close.

Winner: (3) First Basketball Net

(6) Removable Backboard (1919, US1,309,806) vs. (11) Orange Basketball

The Matchup:
Philo Medart’s Removable Backboard allowed facilities to take down or reposition hoops, making courts more versatile for other sports, assemblies, or school events. It’s the unsung hero of shared-use spaces, practical, efficient, and ahead of its time.

On the other hand, the Orange Basketball, introduced in the 1950s by Tony Hinkle, didn’t come with a patent, but it didn’t need one. Its high-visibility color improved tracking for players, fans, and cameras alike, and quickly became the global standard. If basketball had a mascot, it would be this ball.

The Breakdown:
Tough call. But the unpatented orange ball didn’t reinvent structure, it redefined identity. And it’s everywhere.

Winner: (11) Orange Basketball

(7) Rim with Net Attachments (1919, US1,308,831) vs. (10) Basketball Return Device (1966, US3,233,896)

The Matchup:
This one came down to early hardware vs. training innovation. Frank Albach’s 1919 patent introduced one of the first integrated systems for attaching nets to rims, an important upgrade at the time that added structure and durability to the basket itself. But the problem? It didn’t last. Just a couple of decades later, Alvie Sandeberg’s Spiral Metal Hoop Connector (US2,053,635) rendered Albach’s design obsolete. The new tieless system was easier to use, longer-lasting, and quickly became the go-to design for net attachment. Effectively replacing Albach’s legacy.

Meanwhile, the Basketball Return Device, patented in 1966, revolutionized individual practice. This device returned the ball to the shooter after each made basket, helping players log more reps with less hassle.

The Breakdown:
It’s the classic gear vs. training battle. But practice wins championships…. yes, we’re talking about practice!

Winner: (10) Basketball Return Device

As we head into the Elite Eight, the stakes get higher, the matchups get tougher, and the choices get even more difficult. Will legacy continue to dominate? Or is this the year a modern underdog breaks through? Come back next week when we jump into the next round!

🏀 Elite Eight Matchups

(1) The Basketball vs. (8) Spiral Metal Hoop Connector

(4) Basket Suspension System vs. (12) Training Basketball

(3) First Basketball Net vs. (11) Orange Basketball

(2) Basketball Shoes vs. (10) Basketball Return Device

We’re knee-deep in Hoops Havoc (because, yes, March Madness is trademarked), and according to ESPN, there are no perfect brackets entering into the round of sixteen. With my beloved UCLA Bruins making a heart-breaking second-round exit (we’ll get them next year, says the fan who’s been saying that since 1996), I suddenly found myself with a little extra time and a lot of bracket-related energy. I’ve channeled this energy into our inaugural Innovation Madness.

In this tournament, we pit 13 pivotal basketball-related patents and one iconic, unpatented element—the orange basketball—against each other in a single-elimination showdown to determine which invention has had the greatest impact on the game.

From the ball itself to hoops, backboards, footwear, and training tools, each of these innovations has shaped basketball into what it is today. But only one will be crowned the Greatest Basketball Patent of All Time.

The journey from Dr. James Naismith’s invention of basketball in 1891 to today’s fast-paced, high-flying game is a story of constant innovation—one that perfectly showcases the importance of intellectual property.

When Naismith first introduced basketball at a YMCA in Springfield, Massachusetts, players used a soccer ball and attempted to score into actual peach baskets nailed to the wall. After every made shot, someone had to climb a ladder and retrieve the ball. Not exactly a fast break.

Recognizing the need for equipment tailored specifically to the game, Naismith worked with the A.G. Spalding & Bros. company in 1894 to develop the first dedicated basketball. It was smaller and lighter than a soccer ball and set the standard for future versions.

Then, in 1958, Ralph Wheeler—also of Springfield—patented a basketball with improved grip and balance. His design featured smart leather panel construction and deeper grooves, making the ball easier to handle and shoot. It paved the way for the basketballs used at all levels of play today.

These changes weren’t just cosmetic—they transformed how the game was played, leading to innovations in ball-handling, shooting mechanics, and overall tempo.

And none of it would have happened without patents. By granting inventors exclusive rights to their creations, the patent system encourages experimentation, design, and reinvention. The very evolution of basketball, from its rudimentary roots to its current polished form, is a case study in how patents help drive innovation.

The Tournament Format

We’ve ranked 14 contenders based on their innovation, influence, and impact on the game. The top two seeds receive a bye in the first round, while the remaining twelve face off in six opening matchups. Winners advance, narrowing the field until only one champion remains.

The Seedings

1. The Basketball (1929, US1,718,305) – George L. Pierce’s modern basketball design improved grip, bounce, and consistency—foundational to every aspect of the game. (Bye to Round 2)

2. Basketball Shoes (1934, US1,962,526) – John T. Riddell’s innovation introduced basketball-specific footwear with rubber soles, enhancing player traction and performance. (Bye to Round 2)

3. First Basketball Net (1891, US451,715) – Hiram B. Rockhill’s invention replaced peach baskets with an open-ended net, allowing the ball to fall freely and streamlining gameplay.

4. Basket Suspension System (1930, US1,757,350) – William Wallace’s (not that William Wallace) ceiling-mounted basket and backboard system freed up space beneath the hoop, laying the groundwork for today’s retractable gym setups. They may take our wall space, but they’ll never take our freeeeedom!

5. Early Basketball Goal (1909, US922,630) – A goal and mounting system developed by Milton Reach, allowing for easy attachment to and detachment from a wall-mounted backboard.

6. Removable Backboard (1919, US1,309,806) – Philo Medart’s design allowed for flexibility in removing or repositioning a basketball goal and backboard—a critical development for multi-use gym spaces.

7. Rim with Net Attachments (1919, US1,308,831) – This invention by Frank Albach improved the way nets were attached to rims, introducing stability and durability.

8. Spiral Metal Hoop Connector (1936, US2,053,635) – A tieless net attachment system that allowed quick and secure fastening of nets to rims without cords or ties.

9. Jump Training Apparatus (1961, US3,012,781) – A suspended basketball on a flexible cord to help players improve vertical leap, timing, and hand coordination.

10. Basketball Return Device (1966, US3,233,896) – Designed to return basketballs to the shooter after each made shot, improving the efficiency of solo practice.

11. Orange Basketball (Not Patented) – First introduced by Tony Hinkle in the 1950s, the orange basketball enhanced visibility and quickly became the standard color used at all levels of play.

12. Training Basketball (2015, US9,149,701) – A modern training tool with built-in indentations to teach correct hand placement for shooters.

13. Shooting Form Guide (2018, US10,080,944) – Patented by Patrick Bowling, this apparatus features adjustable rim attachments and alignment tools to help players improve shooting technique and muscle memory.

14. Tipping Trainer (1955, US2,710,189) – A training device designed to help players practice the difficult art of tipping missed shots into the hoop from close range.

Round 1 Matchups

  • (8) Spiral Metal Hoop Connector vs. (9) Jump Training Apparatus
  • (5) Early Basketball Goal vs. (12) Training Basketball
  • (4) Basket Suspension System vs. (13) Shooting Form Guide
  • (3) First Basketball Net vs. (14) Tipping Trainer
  • (6) Removable Backboard vs. (11) Orange Basketball
  • (7) Rim with Net Attachments vs. (10) Basketball Return Device

The bracket is set. The contenders are ready. Over the next week, we’ll analyze the results of Round 1 and reveal which patents advance to the Elite Eight.

Will the classic basketball dominate, or will an underdog innovation make a Cinderella run? Stay tuned—winners of round one will be announced next week!

Two years ago, we wrote about a cautionary tale in which a New York federal court allowed a complaint alleging that a popular set of NFT basketball cards were “securities” to survive dismissal, rejecting the argument that, even as alleged, these NFTs were merely “collectibles” (with defendants likening them to “Pokémon cards,” “rare coins,” and “fine art”), rather than securities. Just a few months later, two more federal cases addressed the same question and reached different outcomes.

While the question of whether NFTs are “collectibles” or “securities” remains a black box, a different crypto asset—meme coins—recently received some much needed guidance. On February 27, 2025, the SEC’s Division of Corporation Finance staff issued a Staff Statement on Meme Coins (the “Staff Statement”) explaining for the first time that “meme coins,” that is, “a type of crypto asset inspired by internet memes, characters, current events, or trends for which the promoter seeks to attract an enthusiastic online community to purchase the meme coin and engage in its trading,” are “akin to collectibles” and typically not securities. In particular, the Staff Statement applied the U.S. Supreme Court’s 1946 “Howey” test to analyze whether meme coins can be considered an “investment contract,” and explained that they do not. The Howey test requires, among other things, the investment of money in a common enterprise with a reasonable expectation of profits from the work of others. As the Staff Statement explained, meme coins are not making an investment in an enterprise to begin with, let alone one based on the “managerial and entrpreneurial efforts” of others. Rather, “the value of meme coins is derived from speculative trading and the collective sentiment of the market, like a collectible.”

While this guidance is helpful, it should not be read as creating a meme coin free-for-all. Numerous pitfalls still remain to those who would issue meme coins, including:

  • Understanding What a “Meme Coin” Is—and Isn’t—Is Key. The Staff Statement takes care to admonish against “meme coins” in name only. Issuers should not attempt to “disguis[e] a product that otherwise would constitute a security” by labeling it a “meme coin.” The SEC staff will look at the “economic realities” of the offering, not what it happens to be titled.
  • Fraud is Still Fraud. The Staff Statement also contains a word of caution about general fraud. That an otherwise fraudulent activity is not “securities fraud” does not make it acceptable, and can still become the subject of civil litigation, enforcement activity, or criminal prosecution.
  • The SEC is Not the Only Regulator in Town. Even if a meme coin is not regulated as a security, issuers must be cognizant of other applicable laws and regulations. On the federal level, there remains risk of enforcement activity, for example, by the Commodity Futures Trading Commission or the Federal Trade Commission. And if more federal regulators signal an increased friendliness to the crypto industry, state agencies may step in to play a more prominent anti-fraud role. For example, New York’s Department of Financial Services (“DFS”) recently released both a Consumer Alert warning against “exceptional risk of fraud and loss of funds” and a letter to businesses warning that DFS “is closely monitoring the rapid proliferation” of meme coins.

Finally, if Commissioner Caroline Crenshaw’s blistering dissent to the Staff Statement is any indication, the Staff Statement may be the SEC staff’s position now, but that chapter can and will be rewritten in any future change of administration absent more definitive legislation or Supreme Court precedent. In the interim, issuers, purchasers, and other players in the meme coin arena should proceed with caution and be wary both of falling victim to fraud and of landing in the crosshairs of a fraud claim.

Originally posted on Seyfarth’s The Blunt Truth blog.

Last year, the case of BBK Tobacco & Foods LLP v. Central Agriculture Inc. made headlines in the trademark world when the Ninth Circuit held that district courts have jurisdiction to alter or cancel trademark applications.  97 F.4th 668 (9th Cir. 2024). 

Once again, the case is shaking up the trademark space.  In what appears to be a matter of first impression, the United States District Court for the District of Arizona held that, in a trademark infringement case, an infringer could be subject to profit disgorgement despite the fact that its profits arose from federally illegal sales of cannabis.  BBK Tobacco & Foods LLP v. Cent. Coast Agric. Inc., No. CV-19-05216-PHX-MTL (D. Ariz. Feb 28, 2025). 

The case could have a significant impact for trademark owners and those operating in the cannabis space. 

BBK Tobacco & Foods LLP (“BBK”) offers smoking-related products, including rolling papers, under its RAW trademark.  BBK alleged that Central Coast Agriculture Incorporated (“CCA”) was infringing on its trademark by offering cannabis products under the RAW GARDEN mark.  CCA markets and sells cannabis products under the RAW GARDEN brand exclusively through California-licensed dispensaries and mobile delivery services.  CCA’s sales are legal within the state of California.  But the Controlled Substances Act makes it unlawful to distribute cannabis at the federal level. 

Both parties filed motions for summary judgment on several grounds.  In particular, CCA moved for summary judgment on BBK’s profit disgorgement claim.  Profit disgorgement requires a party that profits from its own illegal acts against an opposing party to give up profits made as a result of such acts. 

The court acknowledged CCA’s concession that no court has addressed the issue of profit disgorgement specifically in the context of trademark infringement. 

BBK argued that allowing CCA to be immune from a profit disgorgement claim would incentivize the violation of federal criminal law.  On the other hand, CCA argued that awarding damages from profits earned from the sale of cannabis would violate federal law. 

CCA relied on several cases where courts have found against awarding damages from profits earned on businesses that process and sell cannabis.  See e.g., J. Lily, LLC. Clearspan Fabric Structures Int’l, Inc. No. 3:18-cv-01104-HZ, 2020 WL 1855190, at *12 (D. Or. Apr. 13, 2020) and Wildflower Brands Inc. v. Camacho, No. 2:22-CV-09044-MCS-PLA, 2023 WL 3150091, at *2 (C.D. Cal. Mar. 20, 2023) (an award of profit disgorgement concerning cannabis business would “run afoul of federal law.”) 

The court distinguished the cases cited by CCA because both parties were engaged in the federally illegal cannabis industry.  So, an award of profit disgorgement would benefit a party violating federal law. 

Here, only CCA operates in the cannabis industry.  The court stated that allowing CCA to be immune from a profit disgorgement claim would incentive, not discourage, the violation of federal law.

Therefore, the court denied CCA’s motion for summary judgment and held that, if a jury finds that CCA infringed BBK’s trademark, BBK may seek profit disgorgement. 

Cannabis companies attempting to use the federal illegality of cannabis sales to their benefit in litigation is not new.  Previous attempts to dismiss cases based on the illegality doctrine (i.e., courts should not be used to engage in unlawful conduct) were rejected.  This is something we’ve previously discussed.  See e.g., California Ruling May Sow Seeds of Cannabis Patent Precedent.

This case takes things one step further.  Not only may cannabis companies be subject to claims in federal court, but they may also be required to disgorge their profits or pay damages in trademark infringement cases based on activity that is illegal under federal law.  It’s unclear whether the same may be true regarding other forms of intellectual property infringement claims.  But based on this court’s reasoning, if profit disgorgement does not benefit a cannabis company, the same outcome may apply. 

Moreover, brand owners outside of the cannabis space should be cognizant of the potential to recover damages from a cannabis company infringing its trademark rights.

As the legal proceedings continue, the outcome of this case could have significant implications for trademark law and the cannabis industry.  But at this point, CCA may consider that the court provided it a RAW deal. 

Commercial Lit Outlook

Now in its fifth year, Seyfarth’s Commercial Litigation Outlook continues to provide critical insights into the forces shaping business disputes. As we enter 2025, businesses are facing unprecedented legal and regulatory uncertainty. The second Trump administration is expected to reshape agency priorities, while AI-driven innovation continues to outpace the legal frameworks meant to regulate it. From False Claims Act challenges to data privacy and ESG litigation shifts, companies must stay vigilant in navigating a rapidly evolving commercial litigation landscape.

One of the most pressing concerns for businesses this year is AI-related legal uncertainty, particularly surrounding intellectual property rights and compliance risks. As courts and lawmakers grapple with AI’s role in copyright, contracts, and corporate transactions, companies must prepare for significant shifts that could redefine how AI is developed and used. Read on for a sneak peek on what Seyfarth IP attorneys covered in this year’s publication.

*           *           *           *

Artificial intelligence is rapidly evolving, but the legal landscape is struggling to keep up. As AI becomes more integrated into business and everyday life, companies must navigate critical legal uncertainties, especially around copyright, regulatory compliance, and contractual risk.

A key issue for 2025 is whether AI models can legally train on copyrighted material without permission—a question at the heart of The New York Times v. OpenAI lawsuit. If courts rule against AI developers, companies may face significant operational shifts, requiring licensing agreements, retraining of models, or limitations on available datasets. Meanwhile, federal and state AI legislation is accelerating, with over 100 bills introduced in Congress in 2024, and the incoming administration signaling a focus on free speech and global competitiveness in AI policy.

These uncertainties are reshaping corporate contracts, M&A transactions, and media policies. Companies are already adopting stricter AI-related contractual terms, including representations and warranties in deals involving software, and media organizations are developing policies to track human vs. AI-generated content to safeguard copyright protections.

What’s next? The 2025 Commercial Litigation Outlook explores these evolving AI-related risks and how companies can prepare for the shifting regulatory and litigation landscape.

Read the full 2025 Commercial Litigation Outlook here