Monthly Archives: January 2015

Lost goodwill isn’t irreparable harm without comprehensive effect on overall business

Posted on January 7, 2015 by rtushnet

Via Sarah Burstein:   Worldwide Diamond Trademark S, Ltd., v. Blue Nile, Inc., No. 14-cv-03521 (S.D.N.Y. Nov. 6, 2014)   Worldwide sought a preliminary injunction in its patent and trade dress lawsuit against Blue Nile for allegedly copying its Hearts … Continue reading →

Posted in http://schemas.google.com/blogger/2008/kind#post, patent, trademark | Leave a comment

Book chapter on resisting gendered concepts of creativity

Posted on January 7, 2015 by rtushnet

Rebecca Tushnet, The Romantic Author and the Romance Writer: Resisting Gendered Concepts of Creativity, in DIVERSITY IN INTELLECTUAL PROPERTY, (Irene Calboli & Srividhya Ragavan eds., Cambridge Univ. Press, forthcoming 2015). Abstract: Dominant narratives of creativity regularly expect female-associated forms of … Continue reading →

Posted in fan fiction, fanworks, http://schemas.google.com/blogger/2008/kind#post, my writings | Leave a comment

False endorsement analyzed as explicit v. implicit falsity

Posted on January 6, 2015 by rtushnet

First Data Merchant Services Corp. v. SecurityMetrics, Inc., 2014 WL 7409537, No. RDB–12–2568 (D. Md. Dec. 30, 2014)   Earlier ruling excluding false endorsement survey.  Even earlier ruling allowing false endorsement theory to proceed.   This “contentious” case involved a … Continue reading →

Posted in http://schemas.google.com/blogger/2008/kind#post, trademark | Leave a comment

Reading list: copyrightability of plastination

Posted on January 6, 2015 by rtushnet

Via Larry Solum.  I haven’t read this but I’ve been fascinated by plastination for years, and finally my interests unite.  Kirill Ershov, A Macabre Fixation: Is Plastination Copyrightable?: Abstract: Dr. Gunther von Hagens invented plastination as a process to preserve … Continue reading →

Posted in http://schemas.google.com/blogger/2008/kind#post, reading list | Leave a comment

claims about patent might be misleading if on-sale bar clearly applied

Posted on January 6, 2015 by rtushnet

Bern Unlimited, Inc. v. Burton Corp., 25 F. Supp. 3d 170 (D. Mass. 2014)   Bern, which sells sports helmets, sued six competing helmet makers.  It initially sued for design patent infringement, but dropped that claim and switched to trade … Continue reading →

Posted in design patent, http://schemas.google.com/blogger/2008/kind#post, trademark | Leave a comment

Affiliates are advertiser’s agents

Posted on January 5, 2015 by rtushnet

American Bullion, Inc. v. Regal Assets, LLC, 2014 WL 7404597, No. CV 14–01873 (C.D. Cal. Dec. 30, 2014)   Regal sought reconsideration of the court’s grant of a preliminary injunction on false advertising claims, which was granted in part.  American … Continue reading →

Posted in commercial speech, first amendment, http://schemas.google.com/blogger/2008/kind#post | Leave a comment

statements by competitors are not matters of public interest

Posted on January 2, 2015 by rtushnet

Broadspring, Inc. v. Congoo, LLC, 2014 WL 7392905, No. 13–CV–1866 (S.D.N.Y. Dec. 29, 2014)   As part of resolving various evidentiary issues before trial between these online advertising service competitors, the court gave guidance on some more general false advertising … Continue reading →

Posted in damages, defamation, http://schemas.google.com/blogger/2008/kind#post | Leave a comment

Is "following" on Twitter endorsement?

Posted on January 2, 2015 by rtushnet

If William Shatner is right, does Twitter have a false endorsement/right of publicity problem when it puts sponsored accounts into celebrities’ “following” lists, even with a disclaimer?  Does Twitter’s ToS do enough to insulate it from such claims?  Via +truthinadvertising.org … Continue reading →

Posted in right of publicity, trademark | Leave a comment

I’m stuck on Choc-Aid

Posted on January 1, 2015 by rtushnet

because it melted in my hands: Choc-Aid (R) Milk Chocolate bandages Note the (R).  http://tushnet.blogspot.com/feeds/posts/default?alt=rss

Posted in dilution, trademark | Leave a comment

Accusation of "instability" actionable but use of generic term isn’t confusing

Posted on January 1, 2015 by rtushnet

EndoSurg Medical, Inc. v. EndoMaster Medical, Inc., No. GJH–14–2827, 2014 WL 7336691 (D. Md. Dec. 19, 2014)   Plaintiff EndoSurg makes endoscope replacement components, and plaintiff EndoCure makes custom rigid and small diameter flexible endoscopes.  (Endoscopic surgery requires inserting an … Continue reading →

Posted in http://schemas.google.com/blogger/2008/kind#post, tortious interference, trade secrets, trademark | Leave a comment