Getting ready for the symposium tomorrow. Hope to see you there (or on the live stream)!
These are very interesting questions. I can't wait!
The 2013-2014 JETLaw Symposium, “Patents 101: Eligibility from Computer Code to Genetic Codes” will be held at Vanderbilt Law School on Friday, January 24th, 2014. The Symposium examines the interaction of Section 101 and patent eligibility of software and DNA, as well as the implication of current jurisprudence on patent eligible subject matter. With the recent Supreme Court decision in Myriad and the number of cases in recent years addressing the patent eligibility of software, Section 101 has once again moved to the forefront of patent litigation. Chief Judge Randall Rader of the US Court of Appeals for the Federal Circuit will deliver the keynote address and will be joined at the Symposium by Judge Kent Jordan of the US Court of Appeals for the Third Circuit, former USPTO Solicitor John Whealan, and leading scholars from across the country.
I don't think ExxonMobil will be able to prove famousness for the "XX"-only mark, but if it can, then the FX Networks' use of "FXX" would probably be enough to establish dilution, which would allow ExxonMobil to prevent FX from using "FXX."
If we think of trademark law as giving up a general right to use language (though only in commerce), this would seem to mean that only ExxonMobile can use the interlocking XX's, no matter how they are integrated into someone else's mark. Though this would be a societal policy question, in my personal opinion, that seems like a lot to give up (especially absent compelling evidence that consumers are actually confused).
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