Author Archives: rtushnet

11th Circuit protects (at least some) truthful references to product creation

Posted on April 20, 2020 by rtushnet

Webster v. Dean Guitars, — F.3d —-, 2020 WL 1887783, No. 19-10013 (11th Cir. Apr. 16, 2020) Buddy Webster (pka Buddy Blaze), a successful guitar maker and technician, in the mid-1980s modified a Dean guitar and commissioned someone to paint … Continue reading →

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reasonable consumers wouldn’t think Dunkin Donuts Angus Steak was intact piece of meat

Posted on April 17, 2020 by rtushnet

Chen v. Dunkin’ Brands, Inc., No. 18-3087-cv, — F.3d —-, 2020 WL 1522826 (2d Cir. Mar. 31, 2020) Plaintiffs sued Dunkin for deceptively marketing the Angus Steak & Egg Breakfast Sandwich and the Angus Steak & Egg Wake-Up Wrap, alleging … Continue reading →

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1201 claim to control device features survives

Posted on April 17, 2020 by rtushnet

Philips North America, LLC v. v. Summit Imaging Inc., 2020 WL 1515624, No. C19-1745JLR (W.D. Wash. Mar. 30, 2020) But I was told that after Lexmark and Chamberlain, manufacturers weren’t using §1201 claims to control devices! The parties compete to … Continue reading →

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Humvees in Call of Duty are constitutionally protected realism, not confusing/diluting

Posted on April 17, 2020 by rtushnet

AM General LLC v. Activision Blizzard, Inc., No. 17 Civ. 8644 (GBD) (S.D.N.Y. Mar. 31, 2020) The district court allows Humvees to appear in realistic videogames by performing a full confusion analysis, despite purporting to follow Rogers v. Grimaldi. The … Continue reading →

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Rogers continues to collapse into transformativeness in the Ninth Circuit: dog toy edition

Posted on April 17, 2020 by rtushnet

VIP Products LLC v. Jack Daniel’s Properties, Inc., No. 18-16012 (9th Cir. Mar. 21, 2020) VIP Products sells the “Bad Spaniels Silly Squeaker” dog toy, which resembles a bottle of Jack Daniel’s Old No. 7 Black Label Tennessee Whiskey, but … Continue reading →

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lawsuit against supplement for implying arthritis claims not preempted

Posted on April 16, 2020 by rtushnet

Yamagata v. Reckitt Benckiser LLC, 2020 WL 1505724, No. 17-cv-03529-VC (N.D. Cal. Mar. 30, 2020) A very clear opinion. Yamagata challenged RB’s advertising for joint supplements under California and NY law. As the court explained: “If the boxes are best understood … Continue reading →

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T-Mobile is plausibly liable for acts of explicitly authorized dealers

Posted on April 16, 2020 by rtushnet

City of New York v. T-Mobile USA, Inc., 2020 WL 1498522, No. 451540/2019 (Sup. Ct. N.Y. Mar. 23, 2020) The City of New York and the New York City Department of Consumer Affairs (DCA) sued T-Mobile, its subsidiary MetroPCS New … Continue reading →

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A blueberry bagel that is mostly imitation blueberry is plausibly misleading

Posted on April 16, 2020 by rtushnet

Izquierdo v. Panera Bread Co., No. 18-CV-12127 (VSB), 2020 WL 1503557 (S.D.N.Y. Mar. 30, 2020) Panera sold a “blueberry bagel” that allegedly wasn’t.  [My father thinks that bagels with fruit etc. in them already aren’t bagels, but the allegation here … Continue reading →

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TheRealReal is ok except where it is FakeFake

Posted on April 16, 2020 by rtushnet

Chanel, Inc. v. The RealReal, Inc., 2020 WL 1503422, No. 18-CV-10626 (VSB) (S.D.N.Y. Mar. 30, 2020) Very interesting case: Chanel sued TRR for trademark infringement etc. for allegedly overclaiming its association with Chanel by prominently advertising how much Chanel there … Continue reading →

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grey goods: materiality is key

Posted on April 16, 2020 by rtushnet

Dentsply Sirona, Inc. v. Dental Brands For Less LLC, No. 15 Civ. 8775 (LGS), 2020 WL 1643891 (S.D.N.Y. Apr. 2, 2020) Trademark confusion is sometimes a normative conclusion, not an empirical one, even though the language surrounding it is empirical. … Continue reading →

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