Author Archives: rtushnet

Statement that advertiser is “2.0” version of competitor is puffery

Posted on August 8, 2019 by rtushnet

GeoMetWatch Corp. v. Hall, 2019 WL 3537297, No. 1:14-cv-60 (D. Utah Aug. 2, 2019) GeoMet and Advanced Weather Systems Foundation (AWSF) negotiated to create a joint venture for the purpose of constructing and deploying a satellite-hosted weather sensor system and … Continue reading →

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pharma databases as commercial speech? court says maybe

Posted on August 8, 2019 by rtushnet

Alfasigma USA, Inc. v. First Databank, Inc., 2019 WL 3532844, No. 18-cv-06924-HSG (N.D. Cal. Aug. 2, 2019) Alfasigma sued First Databank for state and federal false advertising after it re-classified Alfasigma medical food products from Class F (prescription) to Class … Continue reading →

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7th Cir: descriptive component of distinctive slogan can be descriptive fair use

Posted on August 8, 2019 by rtushnet

SportFuel, Inc. v. PepsiCo., Inc., No. 18‐3010 (7th Cir. Aug. 2, 2019) SportFuel, which among other things sells dietary supplements, sued Gatorade after Gatorade rebranded itself with the slogan, “Gatorade The Sports Fuel Company.” The court of appeals affirmed a … Continue reading →

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London sights for TM aficionados

Posted on August 6, 2019 by rtushnet

Pictures taken while traveling. The geographic attractiveness of the “American” carwash is enhanced by the slogan “The Cadillac of London car washes.” Adidas/marijuana leaf in center. from Blogger https://ift.tt/2YEtYQH

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false advertising trolling, consumer protection, or both

Posted on August 3, 2019 by rtushnet

I wrote about a couple of cases filed by a supplement maker, Outlaw, against retailers that sold allegedly unlawful “male enhancement” supplements that the FDA has issued warnings on—sometimes the “supplements” illegally contain pharmaceuticals like sildenafil (active ingredient in Viagra).  … Continue reading →

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

Posted on July 30, 2019 by rtushnet

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

Posted on July 30, 2019 by rtushnet

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

Posted on July 23, 2019 by rtushnet

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!)

Posted on July 23, 2019 by rtushnet

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

Posted on July 23, 2019 by rtushnet

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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