Blog Profile / 43(B)log


URL :http://tushnet.blogspot.com/
Filed Under:Industries / Law
Posts on Regator:2779
Posts / Week:6.3
Archived Since:March 17, 2008

Blog Post Archive

Strict liability means competitor can create literal falsity by bringing out better product

2 weeks agoIndustries / Law : 43(B)log

SharkNinja Operating LLC v. Dyson Inc., No. 14-cv-13720 (D. Mass. Aug. 3, 2016) In 2013, Dyson launched an ad campaign claiming that some of its vacuums had “twice the suction of any other vacuum” on the market. In July 2014, however,...Show More Summary

Annemarie Bridy takes on the Copyright Office's overreach

2 weeks agoIndustries / Law : 43(B)log

Here, on the set-top box FCC rulemaking. The Copyright Office wants people to believe that copyright is a general right to control commercial exploitation, and that if cable companies want to cut deals with content providers trading away customers' fair use rights, the FCC has no business saying otherwise. http://tushnet.blogspot.com/feeds/posts/default?alt=rss

Can functionality become nonfunctionality with new data?

2 weeks agoIndustries / Law : 43(B)log

C5 Medical Werks, LLC v. CeramTec GMBH, 2016 WL 4092955, No 14-cv-00643 (D. Colo. Jun. 10, 2016) C5 competes with CeramTec in the ceramic hip implant market. In 1998 CeramTec patented a ceramic composite used in hip implants, advertising that the chromium oxide in its composite increased the hardness of its hip implant and made it pink. Show More Summary

Dirty Dancing remake: court grants reconsideration on dilution

2 weeks agoIndustries / Law : 43(B)log

Lions Gate Ent. Inc. v. TD Ameritrade Servs. Co., No. cv 15-05024 (C.D. Cal. Aug. 1, 2016) Previous discussion and images from the campaign here. Lions Gate claims common-law marks in DIRTY DANCING and NOBODY PUTS BABY IN A CORNER, while...Show More Summary

Transformative use of the day?

2 weeks agoIndustries / Law : 43(B)log

Is a caption contest for a photo a transformative use? It does seem to rely heavily on the content of the photo!See https://twitter.com/TheSteveBurnio/status/760579894900293633/photo/1: The winner of the caption contest: Caption: "Donald Trump, center." http://tushnet.blogspot.com/feeds/posts/default?alt=rss

Seen at the amusement park: TM question of the day

3 weeks agoIndustries / Law : 43(B)log

"Straight Outta Here! Seniors" T-shirt in Straight Outta Compton style http://tushnet.blogspot.com/feeds/posts/default?alt=rss

ADR website was commercial speech for purposes of client's false advertising lawsuit

3 weeks agoIndustries / Law : 43(B)log

JAMS, Inc. v. Superior Court of San Diego County, No. D069862, --- Cal. Rptr. 3d ----, 2016 WL 4014068 (Cal. Ct. App. Jul. 27, 2016) Kevin Kinsella sued JAMS, an ADR provider, and the Honorable Sheila Prell Sonenshine (Retired), alleging...Show More Summary

Design Patent Damages event in DC, Aug. 2

3 weeks agoIndustries / Law : 43(B)log

Details/RSVP here. http://tushnet.blogspot.com/feeds/posts/default?alt=rss

Court of appeals says FU to state university's TM claim

3 weeks agoIndustries / Law : 43(B)log

Florida International University Board of Trustees v. Florida National University, Inc., 2016 WL 4010164, --- F.3d ----, No. 15-11509 (11 th Cir. Jul. 26, 2016) FIU sued FNU for changing its name from Florida National College to Florida National University; the district court rejected FIU’s claims and the court of appeals affirmed. Show More Summary

Incentivizing creativity through suffering?

4 weeks agoIndustries / Law : 43(B)log

Ana Swanson at the Washington Post reports on a study that appears to connect unhappiness with greater creativity. If we care about incentivizing creative output, should we therefore deliberately torment artists? Borowiecki’s analysis...Show More Summary

Reading list: the First Amendment and the FDA

4 weeks agoIndustries / Law : 43(B)log

Christopher Robertson, A Trojan Horse? How Expansion of the First Amendment Threatens Much More than the Regulation of Off-Label Drugs, forthcoming, __ Ohio State Law Journal __ (2017) Abstract: Scholars, advocates, and courts have begun...Show More Summary

Failure to do anything to show damages leads to fee award in false advertising case

4 weeks agoIndustries / Law : 43(B)log

Gravelle v. Kaba Ilco Corp., No.13-CV-642, 2016 WL 3920208 (E.D.N.C. Jul. 15, 2016) Bringing false advertising claims isn’t risk free for the plaintiff. Not only may the defendant scrutinize the plaintiff’s own advertising for counterclaims, attorney’s fee awards against a losing plaintiff are not unknown, and here’s one. Show More Summary

Settlement class can't stand where settlement notice gave mistaken info

last monthIndustries / Law : 43(B)log

Duran v. Obesity Research Institute, LLC, No. D067917, 2016 WL 3913205 (Cal. Ct. App. Jun. 23, 2016) Duran sued ORI and Wal-Mart for allegedly falsely advertising the weight loss benefits of Lipozene and MetaboUp. The court approvedShow More Summary

IP Professors' Amicus in Star Athletica v. Varsity Brands

last monthIndustries / Law : 43(B)log

Filed today: Mark McKenna, Chris Sprigman, Mark Lemley, Tyler Ochoa, Betsy Rosenblatt, Pam Samuelson, Kathy Strandburg, and I submitted a brief in this copyright separability case, arguing that conceptual separability is simply a coda...Show More Summary

Don't send a TM to do a (c)'s job: 7th Circuit rules in Slep-Tone case

last monthIndustries / Law : 43(B)log

Mark McKenna organized an amicus brief in this case, which was not cited by the court but advocated a position similar to that adopted by the panel. Phoenix Entertainment Partners, LLC v. Rumsey, No. 15-2844 (7th Cir. July 21, 2016)Show More Summary

court grants motion to dismiss on nominative fair use grounds

last monthIndustries / Law : 43(B)log

Beachbody, LLC v. Universal Nutrients, No. 16-02015, 2016 WL 3912014 (C.D. Cal. July 18, 2016) Beachbody sued Universal and Wal-Mart for using its “shakeology” mark on product packaging and purchase receipts. The court granted defendants’ motion to dismiss—apparently the standard is higher when you sue Wal-Mart. Show More Summary

Standard competitive bluster can be used as evidence of bad faith

last monthIndustries / Law : 43(B)log

Hillman Group, Inc. v. Minute Key Inc., 2016 WL 3654437, No.13-cv-00707 (S.D. Ohio Jul. 8, 2016) Hillman makes duplicate keys, sold in at mass merchants, home centers, automotive parts retailers, franchise and independent hardware stores, grocery/drug chains, parcel shipping outlets, etc. Show More Summary

Primary jurisdiction doesn't defeat supplement false advertising claim

last monthIndustries / Law : 43(B)log

Nutrition Distribution LLC v. Custom Nutraceuticals LLC, No. CV-16-00173, 2016 WL 3654277 (D. Ariz. Jul. 8, 2016) The parties compete in the nutritional supplement market; defendant Custom sells Ostarine, a selective androgen receptor modulator (“SARM”) with effects similar to those of anabolic steroids. Show More Summary

Volunteer moderator plausibly alleged to be agent of ISP for 230 purposes

last monthIndustries / Law : 43(B)log

Enigma Software Gp. USA LLC v. Bleeping Computer LLC, 16 CV 57 (S.D.N.Y. Jul. 8, 2016) Eric Goldman probably won’t like this decision holding that a volunteer moderator may be treated as the ISP’s agent when the ISP gives enough status...Show More Summary

Discoverable falsity is immaterial to sophisticated consumers

last monthIndustries / Law : 43(B)log

Reed Const. Data Inc. v. McGraw-Hill Companies, Inc., 638 Fed.Appx. 43 (10th Cir. 2016) Allegedly false claims about the quality of construction project data offered by these competitors were, even if false, not material to consumers, because the consumers were sophisticated. Show More Summary

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