Today’s IP artifact: Cuervo bottle with dripping red wax seal

 This decision remains one of my least favorite, but perhaps I will nonetheless get a bottle of Maker’s Mark to pose beside it.

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Tootsie Pups

 Acquired from a seller before the inevitable shutoff. The rare occasion where I see the harm story, since Tootsie Pops theoretically contain chocolate, which one would not want to give a dog.

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Does Gordon v. Drape really mean what it says about explicit misleadingness?

Testing Gordon v. Drape with the paintings of Tom Sachs, some of which
reproduce famous product labels in their entirety (or nearly so). The
introduction to the coffee table book I just bought says,

From
Reese’s Peanut Butter Cups and Snickers bars to images of American flags and
Air Force One, Sachs takes familiar brands, symbols, and commodities as his
subjects. He represents these iconic images in his deliberately imperfect and
conspicuously handmade aesthetic, wanting us to see the uneven brushstrokes and
roughly hewn surfaces that distinguish his “handmade paintings.” By drawing
attention to how his objects are made, he deconstructs the formidable and
complex systems that powerful logos and brands represent. In Tom’s words, “When
I look at these paintings, to me they all speak about power. There is power in
logos and there is power in good advertising.”

On Artsy, the description says:

Critiquing
the speed and regularity with which a materialistic society replaces
commodities, Sachs uses both a profusion of commercial icons in his work and
builds his own functioning versions of consumer goods using re-purposed items,
such as the glossy, black Prada Toilet (1997), a workable toilet constructed
out of Prada’s up-market packaging, with the company’s logo prominently
displayed on the sculpture. Sachs’s works are emphatically process-oriented, an
expression of the artist’s DIY spirit, divulging even the flaws of his complex
and labor-intensive projects.

So, are his works explicitly misleading? See below for some examples:

 

Note the detail on this painting:

If you think the “Tom Sachs” signature on the side helps, what about this one?

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Reading list: race and GIs

Reading list:

Mathilde Cohen, The Whiteness of French Food: Law, Race, and Eating Culture in France
(forthcoming in French Politics, Culture, and Society, 2021)

English Abstract:

Food
is fundamental to French identity. So too is the denial of structural racism
and racial identity. Both tenets are central to the nation’s self-definition,
making them difficult, yet all the more important to think about together. This
article purports to identify a form of French food Whiteness (blanchité
alimentaire), that is, the use of food and eating practices to reify and reinforce
Whiteness as the dominant racial identity. To do so, it develops four case
studies of how law elevates a fiction of homogeneous French/White food as
superior and normative at the expense of alternative ways of eating and their
eaters—the law of geographical indications, school lunches, citizenship, and
cultural heritage.

Really interesting perspective on GIs; if you believe that they
were born in sin (racism/colonialism), do you think that they can be redeemed?

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Amicus brief in rehearing petition for Warhol v. Goldsmith

 With Christine Farley and Pam Samuelson: our brief addresses the effect of Google v. Oracle, which the Second Circuit has explicitly asked for more briefing about. I would expect other amicus interest, including on Goldsmith’s side, given the stakes of whether Gv.O is a software case or a fair use case at heart.

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Nominative fair use (maybe) and Amazon

 I’ve recently seen two examples of the following phenomenon: off of Amazon, an advertiser uses images of its product with another well-known product, and they do go together, but on Amazon, the advertising is different. Anyone know if there’s an Amazon policy driving this? For those circuits that require the advertiser to have a good reason to refer to the trademark owner in order to justify nominative fair use, the Amazon ads would seem to show it’s possible to advertise without using the other mark. Special kudos to the Angelus paint for using an all-red shoe on Amazon, which isn’t a “use” of the Louboutin mark
according to the 2d Circuit. Clever!

Angelus shoe paint off Amazon (and from some third party sellers on Amazon): 

Amazon product image:


Ka’Chava off Amazon (note Ball jars used to display product): 

Ka’Chava on Amazon:

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DoorDash invites users to get their grub on

Screenshot of mobile search results for “Grubhub.” Note also “Great Grubs” in the DoorDash blurb. I don’t think it’s unlawful, but it’s kind of tacky:

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2020-2021 Georgetown Law Technology Review Student Writing Competition

 From the site:

2020-2021 TOPIC

Students are invited to submit papers addressing a legal or public policy question relating to emerging and sustained challenges to legal and political structures created by online platforms, digital services, and other emerging technologies. 

Example topics include: questions relating to the adequacy of federal and state agency regulatory and adjudication structures to address current and emerging technologies; the scope of current agency jurisdiction over digital technologies and practices; whether current legal structures effectively protect consumers and vulnerable populations. Students are invited to submit papers that examine proposed or newly-enacted laws related to these questions, or to propose novel legal structures to engage with current gaps. 

Preference will be given to papers that are relevant to current legal and public policy debates around technology or present an original perspective.

PRIZE

Up to three winners will be selected, with a First Prize of $4,000, a Second Prize of $2,000, and a Third Prize of $1,000.

Winning papers may be selected for publication in The Georgetown Law Technology Review.

COMPETITION RULES

Papers will be accepted from students enrolled at any ABA-accredited law school in the United States during the 2020-2021 academic year. The paper must be the author’s own work, although students may incorporate feedback received as part of an academic course or supervised writing project.

The paper must not have been published or committed for publication in another journal; The Georgetown Law Technology Review must have the first right of publication for any winning essay.

Papers will be evaluated based on thoroughness of research and analysis, relevance to the competition topic, relevance to current legal and/ or public policy debates, originality of thought, and clarity of expression.

Papers must be 4,000-7,500 words (not including footnotes) and be submitted in Times New Roman Size 12 font, double spaced. Footnotes must conform to the 20th edition of The Bluebook: A Uniform System of Citation. Papers must be in English.

COMPETITION DEADLINE

The deadline for submissions is 11:59 p.m. EST on May 31, 2021.

Papers must be submitted via email to TechInstitute@law.georgetown.edu with the email subject line “Writing Competition”.

The file must be submitted in Word format, with the file named in the format “LastName_FirstName_WritingCompetition”.

Papers must be preceded by a cover page (included in the same Word file) containing the following information:

  • Full Name of Author

  • Name of ABA-accredited Law School

  • Graduation Year

  • Email Address

  • Phone Number

  • Word Count

  • The following affirmation: “I affirm that this paper is an original work of scholarship authored by me. The paper (or any variation thereof authored by me) has not been published, or committed for publication, in any other publication. If this paper is selected as a winner, I grant The Georgetown Law Technology Review the right of first publication of the paper. I have read and agree to the Competition Rules set forth at https://ift.tt/32tTFDC.”

Entrant’s name and law school shall only appear on the cover page. Papers shall contain no identifying information.

NOTIFICATION OF WINNER

The winner will be notified by phone or email on or before August 31, 2021.

FINE PRINT

The judges’ decisions are final.

Winners will be required to submit a completed W-9, affidavit of eligibility, tax acknowledgment and liability release for tax purposes as a condition to receiving the cash prize. All forms must be completed and returned via email within 14 days of receipt, or prizes will be considered forfeited and another winner may be named.

The authors of papers that are selected for publication will be required to sign an agreement warranting the entry’s originality and granting the GLTR first publication rights.

If a potential winner does not respond within 14 days of the first attempt to contact him or her, or if the contact is returned as non-deliverable, the potential winner forfeits all rights to be named as a winner or receive a prize, and an alternate winner may be chosen.

Entrants may submit multiple entries per year. Jointly authored papers are eligible, provided all authors meet the eligibility requirements for the competition. If a winning paper has more than one author, the prize will be split equally among the co-authors.

Winners will be solely responsible for all federal, state, local or other taxes, if any such taxes apply. Cash prizes will only be paid in US Dollars by way of check or bank transfer. Any fees that may be charged from time to time by the relevant bank will be deducted from the prize money.

Georgetown Law’s Institute for Technology Law & Policy, the Georgetown Technology Law Review and BSA | The Software Alliance (together “the Organizers”) are not responsible for incorrect or inaccurate entry information, late, lost or misdirected entries, or for computer errors or technical failures, including by reason of any bug, computer virus or other failure.

In the unlikely event that no entries are of sufficient quality to merit an award, the Organizers reserve the right not to award any prizes.

The Writing Competition is governed by U.S. law and all relevant federal, state and local rules and regulations apply. By entering, all entrants agree that the competition shall be governed by the laws of the District of Columbia and that the courts of the District of Columbia shall have exclusive jurisdiction for any dispute or litigation relating to or arising from the competition. Void where prohibited by law.

By participating, each entrant agrees to the rules of the Writing Competition and the decisions of the Organizers and releases, discharges and holds harmless the Organizers and each of their respective officers, directors, members, employees, independent contractors, agents, representatives, successors and assigns from any and all liability whatsoever in connection with the Writing Competition, including without limitation legal claims, costs, injuries, loss or damages, demands or actions of any kind.

This Writing Competition may be cancelled, modified or terminated for any reason.


Questions?

Email TechInstitute@law.georgetown.edu

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The 4th Circuit makes trademark use more contextual

Combe Inc. v. Dr. August Wolff Gmbh & Co. Kg Arzneimittel, No.
19-1674 (4
th Cir. Apr. 13, 2021)

Not only is this case a good demonstration that courts are willing
to give broad rights to marks based on similarities in descriptive elements (here the VAGI- formative in VAGISIL for preparations for use in the vagina), it
also has relevance for the current discussion of “use as a mark.” As Grace
McLaughlin argues in her recent Fanciful Failures, there are situations
where putting something in the trademark “spot” for a product doesn’t
necessarily mean that consumers will understand it as a mark. Perhaps
surprisingly, the district court and the court of appeals endorse precisely
that view here:


Further,
the district court appropriately gave little weight to generic Vagicaine products
sold by big-box retailers because consumers do not associate them “as a source-identifying
brand,” but instead recognize them as the “generic product seek[ing] to imitate
VAGISIL’s anti-itch cream.”


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ICANN working group report on TM rights protection mechanisms in all gTLDs now open for comment

Link to report and comment mechanisms. The Working Group did not recommend expanding trademark claimants’ preemptive/pre-registration notice rights to include broad matching or algorithmically generated close variants (misses a match by one letter, for example), but I expect that’s still on the agenda for some proponents. One of the things that we found out in the process was that the most-searched-for “trademarks,” of the set entered into the database maintained for the purpose of simplifying rights claims, were, in descending order: smart, forex, hotel, one, love, cloud, nyc, london, abc, luxury. That doesn’t make the database all junk, but it does highlight that new rights protection mechanisms are always also new pathways to abusive claims, and those tradeoffs should be confronted head-on rather than assumed not to exist. The fact that the database is secret doesn’t help (though much of its content could be inferred from registration attempts that receive claims notices).

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