Monthly Archives: July 2019

C&D to competitor’s clients can be “commercial advertising & promotion”

Matonis v. Care Holdings Gp., L.L.C., No. 19-cv-20247-UU, 2019 WL 3386378 (S.D. Fla. Jul. 25, 2019) The defendant Care Companies engage in healthcare management consulting, “advising healthcare providers on, inter alia, patient intake strategies and revenue management.”  Plaintiff Matonis is … Continue reading

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California SCt rejects record-keeping ascertainability requirement

Noel v. Thrifty Payless, Inc., — P.3d —-, 2019 WL 3403895, S246490 (Cal. Jul. 29, 2019) Noel brought a putative class action on behalf of retail purchasers of an inflatable outdoor pool sold in packaging that allegedly misled buyers about … Continue reading

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Amicus brief in Smith v. Drake fair use case

With the able assistance of UCI’s IP clinic, led by Jack Lerner, I worked on an amicus brief in this case arguing that fair use should continue to be a flexible standard that accommodates various types of transformativeness. The brief … Continue reading

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Ornamental use of pun is aesthetically functional (defendant-side functionality in the wild!)

LTTB LLC v. Redbubble, Inc., No.  18-cv-00509-RS (N.D. Cal. Jul. 12, 2019) Defendant-side functionality! This is a concept I’ve been arguing exists for years (see, e.g., the result in Louboutin v. YSL), and now it is no longer immanent in … Continue reading

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Duck, duck, noninfringement: TM and (c) claims over distinct duck designs fail

Great American Duck Races Inc. v. Kangaroo Mf’g Inc., No. CV-17-00212-PHX-ROS (D. Ariz. Jul. 19, 2019) Despite some bad reasoning equating intent to compete with (relevant) intent to confuse, the court rejects bad copyright and trademark claims based on the … Continue reading

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Lysol can’t quickly clean up this mess of anti-Clorox ads

Clorox Co. v. Reckitt Benckiser Gp. PLC, 2019 WL 3068322, No. 19-cv-01452-EMC (N.D. Cal. Jul. 12, 2019) Clorox sued Reckitt for false advertising of its Lysol cleaning products under the Lanham Act and California’s UCL/FAL. The court found tiny parts … Continue reading

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Monster Energy can’t show falsity, can show tortious interference (but not irreparable injury)

Monster Energy Co. v. Vital Pharmaceuticals, Inc., 2019 WL 3099711, No. EDCV 18-1882 JGB (SHKx) (C.D. Cal. Jun. 17, 2019) The court denied a preliminary injunction on Monster’s claim that Vital falsely advertised its “Super Creatine” as “creatine,” because there … Continue reading

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