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.

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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

As we near the end of February, it’s a great time to talk about something that might seem straightforward—USPTO response deadlines—but can actually be a little sneaky. Why? Because February insists on being the shortest month of the year, and that can make things interesting when calculating due dates.

So, let’s say you received an Office Action dated November 30 with a three-month response deadline. Does that mean your response is due on February 28 (since February is playing its usual short-month game), or does it roll over into March?

According to MPEP 710.01(a) and TMEP 310, the response deadline falls on the same numerical day in the third month following issuance. But wait—February 30 does not exist (unless the USPTO knows something we don’t). So what happens?

The answer: The response is due February 28, NOT March 2 (or any imaginary February 30).

This rule was established in Ex parte Messick (Comm’r Pat. 1930), where the USPTO rejected an argument that a three-month deadline should extend to the end of the month. Instead, the Commissioner held that if an Office Action is issued on November 30, the three-month response deadline falls on February 28 (or 29 in a leap year), not March 2. This case solidified the “corresponding day of the month” rule, which is now codified in MPEP 710.01(a).

Important Reminder

  • A 30-day period for reply in the USPTO means 30 calendar days, including weekends and federal holidays.
  • However, if the period ends on a Saturday, Sunday, or federal holiday, the reply is timely if filed on the next business day.
  • If the period for reply is extended, the extra time is added to the original due date, not to the adjusted deadline when a weekend or holiday pushes it forward.

If your USPTO deadline falls in February, double-check your calendar. The last day of February is your deadline—not March 2, not an imaginary February 30. And if you need an extension, file it before February disappears on you!

Patent and Trademark law can be tricky, but at least we don’t have to deal with February’s nonsense every month.

Seyfarth Intellectual Property Partner Lauren Leipold will present as part of a panel of experts discussing the role of GenAI in marketing. The panel is part of the 2025 Marketing Innovation Conference (MIC@S) at Georgia Tech’s Scheller College of Business on Friday, February 21, 2025.

This year’s theme, “Technology Meets Creativity: Shaping Marketing’s Next Chapter,” dives into the evolving intersection of technology and creativity—exploring how AI, data-driven personalization, and influencer strategies are reshaping the marketing landscape while keeping customer engagement authentic and impactful.

Lauren will be a panelist in the session “Is it Real or Is it AI? And Does It Even Matter?” alongside other industry experts, discussing the role of AI in marketing, potential legal risks and benefits, impact on the future of brand strategy, and evolution of intellectual property protection in the digital world.

Those in the Atlanta area who wish to register to attend the event in person can click here:

Register today—space is limited!

Seyfarth’s Trademark practice earned widespread recognition in the 2025 edition of the World Trademark Review 1000 spotlighting “world-class legal trademark expertise.” The firm earned high rankings nationally as well as in the states of California, Georgia, Illinois, and New York. WTR wrote of Seyfarth: “Championing client relationships above all, Seyfarth Shaw’s team of intellectual property attorneys are a smart choice for companies looking to create strong trademark strategies that align with their business needs.”

Ten Seyfarth lawyers were also singled out individually:

Brian Michaelis, national chair of the firm’s IP practice and a partner in the Boston office: “Brings more than 30 years of experience deploying a wide range of IP protection mechanisms, including trademarks, patents, copyright, trade secrets and contracts to meet clients’ diverse objectives and imperatives.”

Edward Maluf, national co-chair of the firm’s IP practice and a partner in the New York office: “Offers expertise across the full range of trademark needs, and stays up to date with changing technologies to provide the best possible representation and advice to his clients.”

Kenneth Wilton, national lead of the firm’s trademark practice and a partner in the firm’s Los Angeles – Century City office: “Renowned for his extensive knowledge across the IP spectrum, excels in both non-contentious and contentious proceedings.”

Bart Lazar, partner in the firm’s Chicago office: “Brings his widespread experience to developing innovative ideas for his clients, commercially contextualizing cases and successfully navigating litigation across complex landscapes.”

Lauren Gregory Leipold, partner in the firm’s Atlanta office: “Positioned herself as a leader for understanding recent developments in copyright law relating to AI, in addition to her immaculate disputes and portfolio consulting skills in the landscape of e-commerce.”

Stephen Lott, partner in the firm’s Charlotte office: “Helps clients protect their trademarks via registration at the state and federal level, as well as internationally.”

Lisa Meyerhoff, partner in the firm’s Houston office: “Helps companies identify and clear marks for international registration, and negotiates domestic and international licenses on behalf of licensors and licensees.”

Matthew Moersfelder, partner in the firm’s Seattle office: “Helps clients in the full spectrum of branding-related issues and understands that protecting a client’s brand goes beyond trademarks.”

Joseph V Myers III, partner in the firm’s New York office: “Directs teams across every aspect of portfolio management, offering reduced costs without compromising his faultless service for his clients.”

Julia Sutherland, partner in the firm’s London and Chicago offices: “Utilizes SeyfarthLean technologies to deliver practical legal counsel to her clients across technological and financial industries, tailoring her advice to meet each unique need.”

Seyfarth’s Intellectual Property team represents a diverse roster of clients, from Fortune 500 and multinational corporations to fast-growing start-ups, helping them identify and secure their IP rights. The Trademark group is dedicated to protecting clients’ distinct, recognizable identities for their products and services, allowing them to create and profit from their unique positions in the marketplace.

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The author with WNBA legend Sue Bird, one of the founders of the company behind the viral “Everyone Watches Women’s Sports” shirts.

As my colleague Puya Partow-Navid recently wrote, popular or viral phrases in the sports world are often the subjects of trademark registrations. Women’s sports are no exception.  2024 was a banner year for women’s sports, including the rise of stars like Caitlin Clark and Ilona Maher, the continued dominance of Simone Biles, another gold medal win by the U.S. Women’s soccer team, and the growth of the Professional Women’s Hockey League (PWHL).

Throughout 2024, shirts began popping up at sporting events with a simple, but powerful phrase: “Everyone Watches Women’s Sports.” (Full disclosure: I own one of these shirts). These shirts were created by Togethxr, a company founded by soccer legend Alex Morgan; snowboarder Chloe Kim; swimmer Simone Manuel; and WNBA legend Sue Bird. The shirts were worn by, among others, Stephen Curry of the Golden State Warriors and Ted Lasso actor Jason Sudekis. Sue Bird gave Jimmy Fallon one of the shirts when she appeared on his show. In summer 2024, then-President Joe Biden uttered the phrase “everyone watches women’s sports” when he welcomed the team that won the 2023 National Women’s Soccer League (NWSL) championship, NY/NJ Gotham FC, to the White House. (Another disclosure: I am a Gotham FC season ticket holder). During the Paris Olympics, versions of the shirts in French—“Tout Le Monde Regarde Le, Sport Feminin”—could be seen at many Olympic events.

Unsurprisingly, Togethxr (under its actual entity name, AXM LLC) moved quickly to apply for trademark registration for “Everyone Watches Women’s Sports” in International Classes 18 and 25, for shirts, sweatshirts, and tote bags (Serial No. 98,494,687). The company applied for the trademark registration on April 11, 2024, asserting a first use on shirts and sweatshirts in December 2023 and a first use on tote bags in March 2024. The USPTO published the application for opposition on November 30, 2024. No one came forward to oppose, and the mark was registered on January 14, 2025 (Registration No. 7,652,404).  Togethxr has some other pending applications, which hints at its ambitions and potential growth: TOGETHXR for use in connection with “entertainment services” (Serial No. 90,657,685); UNSOLICITED ADVICE for use in connection with “advertising and marketing services” (Serial No. 98379787); and TGXR for use in connection with a number of goods and services ranging from apparel to “entertainment services” (Serial No. 90,657,704).

In just over a year from the first asserted use, Togethxr had a registered trademark for a phrase that became a viral phenomenon over the course of 2024. As women’s sports continue to grow in popularity, the trademarks associated with those sports will be critically important and valuable, not only for sports leagues, teams, players, but also—as Togethxr shows—for viral phrases and other aspects of women’s sports. We’ll be watching for sure!

We are proud to announce that Seyfarth has earned high marks in the 2024 National Patents and Trademarks Rankings by World Intellectual Property Review (WIPR). These prestigious rankings spotlight the leading law firms and attorneys that global brands trust for comprehensive IP protection and representation.

Seyfarth was recognized in both the Trademarks and Patents national categories, reflecting the depth and breadth of our intellectual property practice. The firm received:

  • Highly Recommended status for Contentious Patents
  • Recommended status for Contentious Trademarks

In addition to the firm’s recognition, several of our standout IP attorneys received individual accolades for their expertise:

  • Edward Maluf — Highly Recommended for Contentious Trademarks
  • Ken Wilton — Recommended for Contentious Trademarks
  • Lisa Meyerhoff — Highly Recommended for Contentious Patents

We are honored to be recognized by WIPR and remain committed to advancing our clients’ intellectual property interests with innovative, strategic counsel. Congratulations to our entire IP team on this well-deserved recognition!

As the Kansas City Chiefs prepare to face the Philadelphia Eagles in Super Bowl LIX, they aren’t just battling for another championship—they’re chasing history. A win would cement their place in the record books as the first team in the Super Bowl-era to complete a three-peat by winning three Super Bowls in a row (although I should note that, before the advent of the Super Bowl, the Packers were three-peat NFL champions in 1929-1931 and 1965-1967). But while Patrick Mahomes, Travis Kelce, and thousands of Swifties are focused on the game, there’s one unlikely potential winner watching from the sidelines: Pat Riley, the legendary former Lakers coach and current Miami Heat president. Why? Because Riley owns the registered trademarks THREEPEAT, THREE PEAT, and 3 PEAT. If the Chiefs pull it off, he stands to cash in big.

The three-peat saga started in the late 1980s when Pat Riley was coaching the Los Angeles Lakers, the greatest basketball franchise of all time (yeah, I said it). Fresh off back-to-back championships in 1987 and 1988, the Lakers had their eyes on a third consecutive title. During that run, Lakers guard Byron Scott jokingly tossed out the term “twee-peat.” A few days later, while having dinner with his wife and a friend, Riley refined it into the now-iconic three-peat.

Unfortunately, the Lakers’ championship streak ended in 1989 when the Detroit Pistons took the crown (boo!). But while the team fell short, Riley saw a golden business opportunity. A company called P.D.P. Paperon de Paperoni, S.P.A. had already applied to register THREE-PEAT in November 1988, but Riley was able to purchase the mark, which P.D.P. assigned to his company, Riles & Company, Inc.

Today, Riley owns a number of trademarks for variations of the phrase, including THREEPEAT (U.S. Reg. No. 6,131,459), THREE PEAT (U.S. Reg. No. 1,886,018), and 3 PEAT (U.S. Reg. No. 4,139,135). These marks cover everything from apparel and backpacks to mugs, trading cards, and jewelry. Interestingly, the original THREE-PEAT trademark (U.S. Reg. No. 1,552,980), registered in 1989, was cancelled in 2012 after Riles & Company dropped the ball by failing to file the necessary renewal documents—right as Riley’s Miami Heat were celebrating the first of their back-to-back championships. Unfortunately for Riley, while the Heat dominated the league for two straight years, they fell short of the coveted three-peat in 2014—because, well, they’re not the Lakers.

Riley’s trademarks have been nothing but net when it comes to cashing in. Riley reportedly made $300,000 in royalties when Michael Jordan’s Bulls won their first three-peat in 1993. He cashed in again when the Bulls did it in 1998, when the Yankees three-peated in 2000, and when his own Lakers (led by Shaq and Kobe) pulled off their own three-peat in 2002. And now, with the Chiefs on the verge of making NFL history, Riley is once again in line for another payday.

At this point, you might be wondering: How is it even possible to claim trademark rights in a common term like three-peat? Under U.S. law, words, phrases, symbols, and designs can function as trademarks if they uniquely identify a particular company’s goods or services in the minds of consumers.  

However, you cannot just assert trademark rights in any phrase or design you come up with. The mark has to be used in commerce—meaning it must be used in conjunction with products or services that are offered for sale or sold to U.S. consumers. That’s why Riley was able to lock down federal registrations for THREE PEAT as a trademark—because he actually used it for merchandising.

This is also how Michael Buffer owns registrations for LET’S GET READY TO RUMBLE for sports entertainment and merchandise, and Paris Hilton owns registrations for THAT’S HOT in connection with her fashion and perfume business. Even Donald Trump attempted (and failed) to register YOU’RE FIRED as a trademark, but his application was rejected due to existing similar marks.

Trademarks extend beyond just words and slogans. Businesses also protect logos (Nike’s Swoosh and McDonald’s Golden Arches), colors (Tiffany Blue, UPS Brown, and Home Depot Orange), sounds (Netflix’s “ta-dum,” the NBC chime, and MGM’s lion roar), and even product design (the Coca-Cola bottle, the Pringles can, and the Toblerone triangle). These trademarks are valuable to their owners because they send strong signals to consumers that ultimately help drive sales. Obtaining federal registrations for those marks helps to maintain exclusivity, protect the goodwill associated with their brands or branding elements, and prevent consumer confusion.

For Pat Riley, THREE PEAT is more than just a widely used term—it’s his intellectual property, meaning he can control its commercial use on certain products and profit from licensing deals. If someone wants to profit from the mark, they’ll have to license the use. In Riley’s own words, owning rights in the THREE PEAT trademark is “like picking up a penny on the ground.” Don’t worry, you can still use “three-peat” in casual conversations, such as when you remind everyone that the Lakers were the last team of the four major American professional sports to win a three-peat. 

No matter who you’re cheering for in the Super Bowl, one thing is certain—Pat Riley will be pulling for the Chiefs. If they win, Kansas City fans will be celebrating in the streets, while Riley will be celebrating all the way to the bank.

If you’re “wirkin” to save up the money for a BIRKIN bag, you may be waiting a long time. And it may be just as hard to get an imitation version, based on the recent shutdown of a couple of foreign manufacturers’ attempts at selling what has been dubbed the “Wirkin” by consumers on Walmart’s website.

After Guangzhou Kuai Trading Co., Ltd (“GKT”) and Shenzhen Xinchuanglihe Technology Co., Ltd (“SXT”) developed and began selling bags with a similar look and feel to Hermès International’s (“Hermès”) legitimate BIRKIN-branded design, consumers took to social media to point out similarities between the bags.

A BIRKIN bag can start at about $20,000 and is only available for purchase at Hermès stores, unless purchased second-hand. Authentic BIRKIN bags are not only expensive – they are exclusive. BIRKIN bags are typically available for purchase only by those with an existing relationship with Hermès, and such individuals are invited to purchase them at Hermès stores. In comparison, a so-called “Wirkin” is priced around $100 and was made available on several websites.  

Although GKT’s bags were marketed under the trademark AIDRANI, and SXT’s bags were marketed under the trademark KAMUGO, the combination of visual design elements in the bags were quite similar to those protected under Hermès’ incontestable federal trade dress registration (U.S. Trademark Reg. No. 3936105), appearing as follows:

The “Wirkin” listings appear to have been removed from Walmart’s online platform, but those bags, and similar bags, have been listed on other sites. It is unclear whether removal from Walmart’s site was the result of legal action. But we do know that Hermès has shown it’s not afraid to enforce its intellectual property rights in other cases.  

Hermès recently won a jury verdict against an artist selling NFTs called “MetaBirkins.” Hermes International v. Rothschild, U.S. District Court for the Southern District of New York, No. 1:22-cv-00384. The MetaBirkin NFTs were digital images of faux fur-covered handbags inspired by Hermès’ iconic BIRKIN-branded bag. The artist who created those images, Mason Rothschild, has been permanently enjoined from copying Hermès’s design.

It’s commonplace for fast fashion brands to imitate designers, and it can be difficult for designers to prevent copycats under copyright law. But perhaps Hermès has found a way around that by using trademark law to protect its design as a source-identifying mark.  Hermès wisely sought protection for its bag beyond its BIRKIN word mark. Had it not, it could be workin’ even harder to shut down the Wirkin.