The Upper Brand

What's the difference between actually using a trademark and just holding your place in line? On this episode of The Upper Brand®, Mayer Brown's Rich Assmus and Kristine Young break down In re Everwise Credit Union, a precedential TTAB decision that cancelled a credit union's registration after finding that its use of the new mark before its rebrand was mere "token use." They review the Board's first-ever review of a Trademark Modernization Act reexamination and provide practical tips for challengers, registrants, and any brand owner planning a rebrand.

In this episode of The Upper Brand®, hosts Rich Assmus and Kristine Young tackle one of the most significant developments reshaping online brand enforcement: the rise, judicial backlash, and uncertain future of Schedule A litigation. From its origins as a streamlined tool for combating mass online counterfeiting to the landmark 2025 opinion in Eicher Motors where Judge Kness of the Northern District of Illinois systematically dismantled the model's procedural foundations, Rich and Kristine unpack how courts are recalibrating the balance between efficient IP enforcement and due process. They examine the Seventh Circuit's pivotal 2026 ruling in Kangol v. Hangzhou Chuanyue Silk Import & Export, which held that the Hague Service Convention bars email service on Chinese defendants, and discuss how an unprecedented bilateral class action is now seeking to void thousands of default judgments. Along the way, they explore what these shifts mean for rights holders, defense counsel, and the future of online brand protection. Whether you're a brand owner fighting counterfeits or a practitioner navigating this rapidly evolving landscape, this episode offers a practical roadmap for enforcing IP rights in the post-Kness era. Tune in for a candid conversation about where Schedule A litigation has been, where it's going, and what you need to know right now.

In this episode of The Upper Brand, Mayer Brown IP partners Rich Assmus and Kristine Young examine the trademark dispute between Patagonia Inc., the $1.47 billion outdoor apparel company, and Wyn Wiley's drag persona, "Pattie Gonia," an environmental activist and content creator. They discuss how Patagonia's infringement suit triggered a public backlash and "Streisand effect," amplifying awareness of Pattie Gonia's name far beyond what organic use ever could have. The hosts unpack the legal merits, including Patagonia's duty to police its mark, the weakened parody defense after the Supreme Court's Jack Daniels v. VIP Products decision, and the complicating role of Patagonia's geographic origin. They also cover practical takeaways for practitioners, highlight that enforcement decisions are as much brand strategy decisions as legal ones, and underscore that coexistence agreements remain an underused alternative to litigation.

In this episode of The Upper Brand®, hosts Rich Assmus and Kristine Young are joined by Mayer Brown Senior Associate, Madelaine Thomas. Together they examine the copyright dispute between British artist Anouska Samms and the Metropolitan Museum of Art, exploring the origins of a collaborative garment called the "Hair Dress," the contrast between U.S. and European moral rights frameworks, and the broader questions of credit and authorship in collaborative art. The conversation also explores the role of studio assistants and fabricators behind famous artists like Jeff Koons and Damien Hirst, and the emerging frontier of AI-generated art and copyright, including how courts are drawing new lines around human authorship in the age of generative AI.

In this episode of The Upper Brand, hosts Rich Assmus and Kristine Young are joined by James Ferguson and Ana Leticia Allevato to discuss how IP licenses, distribution deals, and collaboration agreements can be recharacterized as franchise relationships under U.S. and Brazilian law. The conversation covers the FTC Franchise Rule's three-prong test, state-law variations, and common contractual provisions — such as mandated store layouts, operational oversight, and payment structures — that may inadvertently trigger franchise obligations. The panel also examines Brazil's Franchise Law and court decisions reclassifying trademark licenses as franchises. The episode concludes with practical drafting strategies for separating brand protection from operational control and recognizing when the most defensible path is to embrace a compliant franchise program.

In this episode of The Upper Brand, hosts Rich Assmus and Kristine Young examine the Illinois Tamale Company v. LC Trademark Incorporated case, exploring whether the "pizza puff" mark is generic and whether Little Caesars' "crazy puffs" creates a likelihood of confusion. The conversation covers the Seventh Circuit's reversal of the district court, finding that survey evidence and marketplace usage supported genericness, and its affirmance of no likelihood of confusion given Little Caesars' distinctive "crazy" brand family.

In this episode of The Upper Brand, hosts Rich Assmus and Kristine Young examine the Crocs, Inc. v. ITC case, exploring how Crocs pivoted from expired patent protection to trademark and trade dress claims to protect its iconic clog against lookalikes. The conversation covers the ITC's finding of no trademark infringement, the Federal Circuit's dismissal of Crocs' appeal as untimely, and the challenges of proving registered design elements function as source identifiers. The hosts highlight key lessons for brand owners on aligning evidence with trademark scope and the risks of extending design protection through trade dress.

Gray-market goods—also called parallel imports—are genuine products first sold abroad that are imported into the U.S. without the U.S. trademark owner's authorization. They're not counterfeit; they're real products, but they often bypass authorized channels, ignore territory restrictions, and undercut the brand's U.S. market strategy. The impact is not theoretical. Think lost sales for authorized distributors, stressed warranty and service programs, erosion of MAP compliance, reputational harm if the foreign product doesn't meet U.S. standards, and heightened liability risk if labeling, safety, or regulatory requirements differ. This podcast breaks down why brand owners care about these gray goods.

It's a classic clash of collegiate titans—Baylor University versus Boston University—but this time it's over those deceptively simple letters "B-U." This isn't just alphabet soup; it's a multi-count federal lawsuit that dives deep into coexistence agreements, trademark enforcement, collegiate athletics, and what happens when two century-old brands think the other has crossed the line. This podcast will dive into BU v. BU and why it matters for trademark law.

In this crossover episode of The Upper Brand and Tech Talks, hosts Rich Assmus, Kristine Young, and Julian Dibbell explore how brand licensing functions as a capital-efficient growth strategy—accelerating entry into new markets, categories, and geographies by pairing a company's brand equity or technology with a partner's manufacturing and distribution strengths. They walk through the practical lifecycle of a successful deal—from readiness and IP protection to partner diligence and crisp term sheets—and then dive into contract mechanics such as scope clarity, tailored royalty structures, calibrated exclusivity with performance milestones, and rigorous quality control. The discussion also addresses modern considerations including audits, ownership of improvements, AI-generated outputs and data compliance, sublicensing controls, exit planning, and dispute frameworks. Their closing advice: operationalize quality and align incentives so both parties win when the partnership wins.