Monthly Archives: October 2014

The nominative/descriptive line

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

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FTC challenges Gerber allergy-protection claims in court

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 … Continue reading


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

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 … Continue reading

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

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. … Continue reading

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Case against allegedly contaminated jerky treats proceeds

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 … Continue reading

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Whole Foods’ not wholly natural foods are ok

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 … Continue reading

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TM, advertising claims excluded from LivingSocial’s arbitration agreement

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.  LivingSocial is … Continue reading

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Which false advertising claims are barred by Dastar?

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 … Continue reading

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Empirical IP Research Conference: copyright

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 the effects of piracy on both industry output and … Continue reading

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Empirical IP Research Conference: TM counterfeiting

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: 10s of billions, 100s of billions in the … Continue reading

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