Author Archives: rtushnet

court requires survey evidence in consumer protection case, importing Lanham Act doctrine

Posted on September 7, 2018 by rtushnet

Hughes v. Ester C Company, — F.Supp.3d —-, 2018 WL 4210139, No. 12-CV-0041 (E.D.N.Y. Sept. 4, 2018) Ester-C dietary supplements contain a patented form of vitamin C in the form of calcium ascorbate. Plaintiffs alleged that the advertising for the … Continue reading →

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court requires survey evidence in consumer protection case, importing Lanham Act doctrine

Posted on September 6, 2018 by rtushnet

Hughes v. Ester C Company, — F.Supp.3d —-, 2018 WL 4210139, No. 12-CV-0041 (E.D.N.Y. Sept. 4, 2018) Ester-C dietary supplements contain a patented form of vitamin C in the form of calcium ascorbate. Plaintiffs alleged that the advertising for the … Continue reading →

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Using part of an “anticipated order” from a competitor’s supplier constitutes reverse passing off, despite Dastar

Posted on September 4, 2018 by rtushnet

OTR Wheel Eng’g, Inc. v. West Worldwide Servs., Nos. 16-35897 16-35936, 2018 U.S. App. LEXIS 20520 (9th Cir. Jul. 24, 2018) OTR Wheel and West compete to sell industrial tires. “West asked one of OTR’s suppliers to provide him with … Continue reading →

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Using part of an “anticipated order” from a competitor’s supplier constitutes reverse passing off, despite Dastar

Posted on September 4, 2018 by rtushnet

OTR Wheel Eng’g, Inc. v. West Worldwide Servs., Nos. 16-35897 16-35936, 2018 U.S. App. LEXIS 20520 (9th Cir. Jul. 24, 2018) OTR Wheel and West compete to sell industrial tires. “West asked one of OTR’s suppliers to provide him with … Continue reading →

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Trader Joe’s truffle flavored oil was too cheap for reasonable consumers to think it real

Posted on September 4, 2018 by rtushnet

Brumfield v. Trader Joe’s Co., 2018 WL 4168956, No. 17 Civ. 3239 (LGS) (S.D.N.Y. Aug. 30, 2018) Brumfield alleged that Trader Joe’s “Black Truffle Flavored Extra Virgin Olive Oil” contains no actual black truffle, but instead contains 2,4-dithiapentane, a petroleum … Continue reading →

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Sony’s claim that Michael Jackson performed songs on album was just its opinion

Posted on August 30, 2018 by rtushnet

Serova v. Sony Music Entertainment, — Cal.Rptr.3d —- , 2018 WL 4090622, No. B280526 (Ct. App. Aug. 28, 2018) [This case says a bunch of stuff that’s way too broad for the facts; people who are concerned about things like … Continue reading →

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Amicus seeking rehearing in Honey Badger case

Posted on August 28, 2018 by rtushnet

Mark Lemley, Mark McKenna, and I wrote a brief in support of rehearing.  Here’s hoping! from Blogger https://ift.tt/2BVQpGR

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Nominative fair use defense in 2d Cir goes about as well as you’d expect on motion to dismiss

Posted on August 28, 2018 by rtushnet

Excelsior College v. Wolff, 2018 WL 3964703, No. 17-CV-0011 (N.D.N.Y. Aug. 16, 2018) Excelsior alleged that Wolff infringed its rights by advertising and selling a test preparation service that uses Excelsior’s registered marks and copyrighted material for a Clinical Performance … Continue reading →

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No need to be chicken about copying in poultry feeder case

Posted on August 27, 2018 by rtushnet

CTB, Inc. v. Hog Slat, Inc., 2018 WL 4035945, No. 14-CV-157-FL (E.D.N.C. Aug. 22, 2018) CTB sued HS for making an allegedly exact replica of CTB’s poultry feeder, infringing its registered trademarks for product configuration and color (color on the … Continue reading →

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No, wood is good: possibility of detecting image manipulation keeps image from literal falsity

Posted on August 27, 2018 by rtushnet

Louisiana-Pacific Corp. v. James Hardie Building Prods., Inc., No. 3:18-cv-00447-JPM, 2018 WL 3978364 (M.D. Tenn. Aug. 20, 2018) LP challenged statements JH made regarding engineered wood siding products in its “No Wood Is Good” marketing campaign. The parties compete in … Continue reading →

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