Monthly Archives: October 2021

No organizational standing from mere conflict with consumer protection mission

In Defense of Animals v. Sanderson Farms, Inc., 2021 WL 4243391, No. 20-cv-05293-RS (N.D. Cal. Sept. 17, 2021) Let’s play the fun game “which of these statements about standing should make IP people nervous?” Previously, Friends of the Earth and … Continue reading

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consumer’s bid to enjoin Redbubble’s sale of “counterfeits” fails

Vinluan-Jularbal v. Redbubble, Inc., No. 2:21-cv-00573-JAM-JDP, 2021 WL 4286539 (E.D. Cal. Sept. 21, 2021) Plaintiff thinks Redbubble sells a lot of “counterfeits” and wants that enjoined under the UCL and CLRA. Despite ruling in her favor on a lot of … Continue reading

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Another pharma substitution case fails

Sebela Pharmaceuticals Inc. v. TruPharma, LLC, 2021 WL 4316750, No. 1:20-cv-1677-SB (D. Del. Sept. 8, 2021) When a false advertising case starts this way, you can guess how it will end: “Market competition is good. Competitors are free to copy … Continue reading

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Laches bars TM claims but what counts as “Made in the USA” merits trial

Illinois Tool Works Inc. v. J-B Weld Co., 2021 WL 4310576, No. 3:19-cv-1434 (JAM) (D. Conn. Sept. 22, 2021) The parties compete in the market for “chemical bonding products—like epoxies, adhesives, threadlockers, gasket makers, and silicone sealants—that someone might buy … Continue reading

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Dastar prevents misrepresentation of source of IP from being material

Restellini v. Wildenstein Plattner Inst., Inc., 2021 WL 4340824, No. 20 Civ. 4388 (AT) (S.D.N.Y. Sept. 22, 2021) This is an interesting application of Dastar to preclude certain theories of falsity–I’m not sure materiality is really the right characterization, but … Continue reading

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Dastar doesn’t bar allegedly false advertising about source of planned development services

LStar Development Gp., Inc. v. Vining, 2021 WL 4344891, No. 5:20-CV-184-FL (E.D.N.C. Sept. 23, 2021) LStar, which manages and sells development communities, sued defendants for trademark infringement, false designation of origin, and false advertising under the Lanham Act, as well … Continue reading

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USC IP year in review, TM/ROP

 My presentation, galloping across a bunch of developments. Slides here. Begin with legislative action: Trademark Modernization Act, Which introduces three of the big themes of the year: (1) trademark use, (2) the harm of infringement, and (3) the role of … Continue reading

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emails to 12 customers weren’t commercial advertising or promotion

Elias Indus., Inc. v. Kissler & Co., 2021 WL 409835, No. 20-CV-01011-CCW (W.D. Pa. Feb. 5, 2021) Elias is a wholesale distributor of plumbing parts that primarily sells OEM plumbing parts. Kissler is a plumbing repair part manufacturer and distributor … Continue reading

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maintaining outdated article on website about former supplier wasn’t false association

Archi’s Acres, Inc. v. Whole Foods Market Service, Inc., 2021 WL 424286, No. 19-CV-2478 JLS (MSB) (S.D. Cal. Feb. 8, 2021) Plaintiffs are farmers and growers of high-quality living organic basil. Whole Foods began purchasing small quantities of basil from … Continue reading

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“Krab mix” plausibly misleads as to crab content

Kang v. P.F. Chang’s China Bistro, Inc., 844 Fed.Appx. 969, 2021 WL 463443, No. 20-55138 (9th Cir. Feb. 9, 2021) Plaintiff plausibly alleged that reasonable consumers “are likely to be deceived” by defendant’s use of the term “krab mix” on … Continue reading

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