Author Archives: rtushnet

candy buyers fail to allege difference between pumpkin & Jack-o’-lantern shape

Posted on September 22, 2026 by rtushnet

Vidal v. Hershey Co., No. 24-60831-CIV-DAMIAN, 2026 WL 2730302 (S.D. Fla. Sept. 16, 2026) Reese’s Peanut Butter Pumpkins with carved face on package actual candy There’s a Reese’s Peanut Butter pumpkin. It was advertised with a Jack-o’-lantern package, but the … Continue reading →

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Amicus in section 230 false light case

Posted on September 17, 2026 by rtushnet

 The EFF, Eric Goldman, Jess Miers, Mark Lemley, and I filed a brief in Does 1-10 v. Freesites in the Fourth Circuit, arguing that context–the other third-party content surrounding a post–cannot be the basis for a false light claim against a … Continue reading →

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Amicus in Rise & Shine

Posted on September 16, 2026 by rtushnet

 I’ve submitted a brief on behalf of trademark scholars in support of neither party. Summary of argument: The issue before the Court is whether trademark strength in a likely confusion analysis is a question of fact or a question of … Continue reading →

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it’s hard to get rid of a foreign TM owner’s complaint at the motion to dismiss stage despite territoriality

Posted on September 4, 2026 by rtushnet

Honest Greens Barcelona, S.A.U. v. Poky’s LLC, 2026 WL 2593358, No. 4:24-cv-07023-JD (D.S.C. Sept. 2, 2026) Honest Greens operates restaurants in Spain and Portugal under the HONEST GREENS name and related marks; it owns registrations for HONEST GREENS in several … Continue reading →

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dct strikes down California’s new recyclability law on vagueness/1A grounds

Posted on September 2, 2026 by rtushnet

California League of Food Producers v. Bonta, 2026 WL 2055589, No. 3:26-cv-01675-WQH-BLM (S.D. Cal. Jul. 14, 2026) Trade associations challenged a California law about recyclability claims; the court found it unconstitutionally vague and also unconstitutional under Central Hudson. Basically, the … Continue reading →

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look, there’s a lawsuit: bad claim against comedian leads to anti-SLAPP award

Posted on August 31, 2026 by rtushnet

Morake v. Mwanyenyeka, No. 2:26-cv-02795-JLS-AS, 2026 WL 2548629 (C.D. Cal. Aug. 28, 2026) Noted because, well, it’s an unusually bad claim. Morake is the creator and original performer of “Nants’ingonyama bagithi Baba,” the opening chant from Disney’s The Lion King. … Continue reading →

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5th Circuit puts its own spin on the server test

Posted on August 28, 2026 by rtushnet

Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550 (5th Cir. Aug. 27, 2026) This is being reported as creating a split with the 9th Circuit; I don’t think that’s right in practice. As far as I can tell, the … Continue reading →

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weak infringement case + bad litigation conduct = fee shift for anticompetitive suit over descriptive term

Posted on August 27, 2026 by rtushnet

BBK Tobacco & Foods LLP v. Central Coast Agriculture Inc., No. CV-19-05216-PHX-MTL, 2026 WL 2445019 (D. Ariz. Aug. 20, 2026) Previously. Although BBK forced Central Coast to an (expensive) trial on its very weak infringement claims over the use of … Continue reading →

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use of (R) on goods for which mark is not registered might be literally false

Posted on August 27, 2026 by rtushnet

Southern Marsh Collection, LLC v. Dixie Decoys, LLC, 2026 WL 2431220, No. 24-00905-BAJ-EWD (M.D. La. Aug. 19, 2026) This opinion deals only with defendant’s attempt to get claims against its allegedly false use of the ® symbol dismissed; it is … Continue reading →

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Midjourney can’t force Disney to disclose the prompts it used that didn’t generate material in complaint

Posted on August 27, 2026 by rtushnet

Disney Enterprises, Inc. v. Midjourney, Inc., No. 2:25-cv-05275-JAK-AJR, 2026 WL 2055488 (C.D. Cal. Jun. 15, 2026) This is what seems like a significant discovery dispute; I’m not an evidence scholar, but there’s interaction with the fair use analysis that copyright … Continue reading →

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