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Blog Profile / 43(B)log


URL :http://tushnet.blogspot.com/
Filed Under:Industries / Law
Posts on Regator:3013
Posts / Week:8.6
Archived Since:March 17, 2008

Blog Post Archive

Might of publicity?

2 weeks agoIndustries / Law : 43(B)log

Using Michelle Obama's arms to sell training services: Want Michelle Obama's Arms? Or Better?! training flyer H/T and photo by Zach Schrag. http://tushnet.blogspot.com/feeds/posts/default?alt=rss

"we can do anything" ToS might be unconscionable, providing remedy for loss of music

2 weeks agoIndustries / Law : 43(B)log

MacKinnon v. IMVU, Inc., No. H039236 (Cal. Ct. App. Oct. 30, 2014) MacKinnon sued IMVU, which runs an entertainment service, the “instant messaging virtual universe,” alleging that IMVU deceived users about music purchases and wrongfully restricted users’ ability to play music after they bought it. Show More Summary

Insufficient deviation from FDA label and lack of materiality doom false ad claims

2 weeks agoIndustries / Law : 43(B)log

Apotex Inc. v. Acorda Therapeutics, Inc., 2014 WL 5462547, No. 11 Civ. 8803 (S.D.N.Y. Oct. 23, 2014) Zanaflex tablets and capsules (active ingredient tizanidine) are approved by the FDA to treat spasticity. Somnolence is one of the most common side effects. Show More Summary

The nominative/descriptive line

3 weeks agoIndustries / Law : 43(B)log

I love ads like this, which play with trademark meaning and non-trademark meaning: how should the law analyze them? "Rekindle your love of beautiful books" ad for print books http://tushnet.blogspot.com/feeds/posts/default?alt=rss

FTC challenges Gerber allergy-protection claims in court

3 weeks agoIndustries / Law : 43(B)log

Read the FTC's explanation. The FDA approved an extremely limited claim about very sketchy scientific evidence, and Gerber converted that into "the first and only infant formula that meets the criteria for a FDA Qualified Health Claim," with accompanying gold badge, while advertising that its formula could guard against children developing allergies. Show More Summary

Can't replead TM as false advertising when functionality precludes TM

3 weeks agoIndustries / Law : 43(B)log

Honeywell International Inc. v. ICM Controls Corp., 2014 WL 5438395, No. 11–569 (D. Minn. Oct. 24, 2014) This litigation involves claims for patent infringement, copyright infringement, violations of the Lanham Act, and violations of the Uniform Deceptive Trade Practices Act based on ICM’s alleged copying of combustion control devices. Show More Summary

Just in time for Halloween: this should make TM owners shiver

3 weeks agoIndustries / Law : 43(B)log

The Ninth Circuit is not kidding about not presuming irreparable harm in trademark cases. Titaness Light Shop, LLC v. Sunlight Supply, Inc., No. 13-16959 (9th Cir. Oct. 9, 2014) Sunlight uses “Titan Controls” for devices that control indoor gardening equipment. Show More Summary

Case against allegedly contaminated jerky treats proceeds

3 weeks agoIndustries / Law : 43(B)log

In re Milo’s Dog Treats Consolidated Cases, 9 F.Supp.3d 523 (W.D. Pa. 2014) The court adopted the magistrate judge’s recommendation to grant defendants’ motion to dismiss unjust enrichment claims, but to deny the motion as to the consumer protection and warranty claims in this dog jerky contamination case. Show More Summary

Whole Foods' not wholly natural foods are ok

3 weeks agoIndustries / Law : 43(B)log

Gedalia v. Whole Foods Market Services, Inc., 2014 WL 5315030, No. 4:13–CV–3517 (S.D. Tex. Sept. 30, 2014) Gedalia sued on behalf of a putative class of people who bought Whole Foods’s private-label 365 Organic and 365 Everyday Value products allegedly falsely labelled as being organic, natural, and/or GMO-free. Show More Summary

TM, advertising claims excluded from LivingSocial's arbitration agreement

3 weeks agoIndustries / Law : 43(B)log

Faegin, v. LivingSocial, Inc., No. 14cv00418, 2014 WL 5307186 (S.D. Cal. Oct. 15, 2014) Plaintiffs (A.T. Your Service Cleaning and Janitorial) sued defendants for trademark infringement and related business torts. ATYS is a cleaning service in San Diego. Show More Summary

Which false advertising claims are barred by Dastar?

3 weeks agoIndustries / Law : 43(B)log

A.H. Lundberg Associates, Inc. v. TSI, Inc., No. C14–1160, 2014 WL 5365514 (W.D. Wash. Oct. 21, 2014) The parties compete to make and supply equipment to various processing industries. Defendant TSI specializes in wood and biomass, and began purchasing plaintiff Lundberg’s products in 2007. Show More Summary

Empirical IP Research Conference: copyright

3 weeks agoIndustries / Law : 43(B)log

Effect of Copyright Infringement on Creative Incentives Facilitator: Chris Sprigman (NYU) Panelists: Joel Waldfogel (Minnesota Carlson School of Management) Topic: The strengths and limits of the natural experiment methodology to explore...Show More Summary

Empirical IP Research Conference: TM counterfeiting

3 weeks agoIndustries / Law : 43(B)log

Trademark breakout session #2: Counterfeiting and Its Effect on the Market for the Genuine Article Facilitator: Scott Hemphill (Columbia; Visiting Professor, NYU) Why we care: innovation policy; enforcement policy. Debate over magnitude:...Show More Summary

Empirical IP Research Conference: trademarks

3 weeks agoIndustries / Law : 43(B)log

Plenary Session: Measuring Consumer Confusion in Trademark Infringement Facilitator: Barton Beebe (NYU) Lanham Act: confusion is vaguely defined. Used to include “purchasers” but Congress deleted that phrase. 43(a)’s language is even broader. Show More Summary

Empirical IP Research Conference, NYU

3 weeks agoIndustries / Law : 43(B)log

Plenary Session: How Do Patents Affect Innovation? Facilitator: Katherine Strandburg (NYU) Longer history of empirical work in patent, but still difficulty answering basic question of effect on innovation. In 1958, economist Fritz Machlup...Show More Summary

Organization for Transformative Works fundraising drive

3 weeks agoIndustries / Law : 43(B)log

Fandom makes wonderful things! Help support our commitment to preserving and protecting noncommercial transformative works, including our forthcoming work on renewing the DMCA exemption for vidders! http://tushnet.blogspot.com/feeds/posts/default?alt=rss

likely confusion is irreparable after eBay

3 weeks agoIndustries / Law : 43(B)log

CFE Racing Products, Inc. v. BMF Wheels, Inc., 2 F. Supp. 3d 1029 (E.D. Mich. 2014) The jury found trademark infringement but no damages and no intentional infringement. What should happen with requested injunctive relief? Here, the court finds irreparable harm due to likely confusion, while citing eBay. Show More Summary

The highs are too high: overdraft claims against HSBC continue in part

3 weeks agoIndustries / Law : 43(B)log

In re HSBC Bank, USA, N.A., Debit Card Overdraft Fee Litig., 1 F.Supp.3d 34 (E.D.N.Y. 2014) This case involves more of the charming practice of low-to-high charge posting, causing consumers to rack up numerous $35 overdraft charges in a single day for using their debit cards, often to make small purchases. Show More Summary

Pleading standards for false advertising

3 weeks agoIndustries / Law : 43(B)log

Cocona, Inc. v. Singtex Industrial Co., 2014 WL 5072730, Civil Action 14-cv-01593 (D. Colo. Oct. 9, 2014) Cocona created a process to use coconut particles in fabric, which is used for outdoor gear, to enhance odor control, moisture absorption, and UV protection. Show More Summary

NFL Films protected by First Amendment against players' right of publicity claims

3 weeks agoIndustries / Law : 43(B)log

Dryer v. National Football League, No. 09-2182 (D. Minn. Oct. 10, 2014) There are two alternatives when it comes to the right of publicity, it seems to me. Either we will limp along with a special rule for video games despite the Supreme...Show More Summary

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