Author Archives: rtushnet

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

Posted on July 19, 2019 by rtushnet

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)

Posted on July 19, 2019 by rtushnet

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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TrueCar’s false claims not subject to car dealers’ challenge without evidence of injury

Posted on July 19, 2019 by rtushnet

Dependable Sales & Service, Inc. v. Truecar, Inc., 2019 WL 3067115, No. 15-cv-1742 (PKC) (S.D.N.Y. Jul. 12, 2019) Lots of prior rulings about various aspects of this false advertising claim in the general field of auto sales. TrueCar successfully moved … Continue reading →

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Reading list: the dark side of meme culture

Posted on July 19, 2019 by rtushnet

 Whitney Phillips, It Wasn’t Just the Trolls: Early Internet Culture, “Fun,” and the Fires of Exclusionary Laughter, Social Media + Society: I realized that many of the young reporters who initially helped amplify the white nationalist “alt right” by pointing … Continue reading →

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Imaginative makeup color names as descriptive fair use

Posted on July 11, 2019 by rtushnet

Hard Candy, LLC v. Anastasia Beverly Hills, Inc., 921 F.3d 1343 (11th Cir. 2019) Hard Candy sued Anastasia, a competitor in the cosmetics industry, for infringement based on one of Anastasia’s “Glow Kits,” flip-open makeup palettes containing four different shades … Continue reading →

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When © trips courts up: Lack of access to standards makes false ad claim impossible to resolve

Posted on July 11, 2019 by rtushnet

Wing Enterprises, Inc. v. Tricam Industries, Inc., 2019 WL 2994465, No. 17-cv-1769 (ECT/ECW) (D. Minn. Jul. 9, 2019) This false advertising case about multi-position ladders turns out to involve an important copyright issue that the Supreme Court has taken up: … Continue reading →

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