Monthly Archives: July 2019

Imaginative makeup color names as descriptive fair use

Hard Candy, LLC v. Anastasia Beverly Hills, Inc., 921 F.3d 1343 (11th Cir. 2019) Hard Candy sued Anastasia, a competitor in the cosmetics industry, for infringement based on one of Anastasia’s “Glow Kits,” flip-open makeup palettes containing four different shades … Continue reading

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When © trips courts up: Lack of access to standards makes false ad claim impossible to resolve

Wing Enterprises, Inc. v. Tricam Industries, Inc., 2019 WL 2994465, No. 17-cv-1769 (ECT/ECW) (D. Minn. Jul. 9, 2019) This false advertising case about multi-position ladders turns out to involve an important copyright issue that the Supreme Court has taken up: … Continue reading

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Competitor’s false advertising case against MLM income claims can proceed

Youngevity Int’l v. Smith, No. 16-CV-704-BTM-JLB, 2019 WL 2918161 (S.D. Cal. Jul. 5, 2019) This Lanham Act case involves, among other things, alleged misrepresentations relating to the MLM aspects of defendants’ business pitched to potential “affiliates.”  First, defendants argued that … Continue reading

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Rogers still mostly works in 9th Circuit, despite Honey Badger’s best efforts

Caiz v. Roberts, — F.Supp.3d —-, 2019 WL 1755421 (C.D. Cal. Apr. 17, 2019) In Gordon v. Drape Creative, 909 F.3d 257 (9th Cir. 2018), the Honey Badger case, the Ninth Circuit began a process that could make Rogers v. … Continue reading

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Amazon strictly liable for product defect but 230 preempts failure to warn claim

Oberdorf v. Amazon.com Inc., No. 18-1041 (3d Cir. Jul. 3, 2019) Oberdorf was injured by a retractable dog leash “sold” by Amazon on behalf of a third-party vendor, who shipped the leash directly to Oberdorf. The district court found that, … Continue reading

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Warhol wins on fair use of photo (but should’ve won on substantial similarity)

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 17-cv-2532 (JGK) (S.D.N.Y. Jul. 1, 2019) In some sense, this fair use case is a foregone conclusion; even the terrible Saderup decision made an exception for Andy Warhol, because … Continue reading

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Flange wars: material misrepresentations aren’t enough without causation

Boltex Manufacturing Co. v. Ulma Piping USA Corp., No. 17-CV-1400, 2019 WL 2723253 (S.D. Tex. Jun. 28, 2019) More flanges! Boltex alleged that defendants misrepresented that they “normalized” their flanges. Normalization is a heat treatment process that makes steel more … Continue reading

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