Author Archives: rtushnet

TM/False advertising issue of the day

Posted on July 12, 2018 by rtushnet

Seen on the street in NYC; the candies have no marijuana content–they’re sold as “adult” candies, furthering the impression. My daughter also asked “Could the owners of Scooby Doo sue?” and then, because I have taught her well, corrected that … Continue reading →

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False designation damages require proximate cause, dooming $250 million jury award

Posted on July 2, 2018 by rtushnet

ZeniMax Media Inc. v. Oculus VR LLC, No. 14-cv-01849 (N.D. Tex. Jun. 27, 2018) After trial of this case, the jury returned a verdict, finding in relevant part that defendants were liable for false designation of origin, basically about the … Continue reading →

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the perils of default judgments against speech: showing up late can prove onerous

Posted on July 2, 2018 by rtushnet

Lokosky v. Gass, No. 1 CA-SA 18-0101, 2018 WL 3150499 (Az. Ct. App. Jun. 28, 2018) Respondents (not Gass, who’s the judge, named for procedural reasons) sued Lokosky for false advertising and related claims seeking to compel Lokosky to “remove … Continue reading →

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search results labeled as results aren’t confusing

Posted on July 2, 2018 by rtushnet

Carter v. Oath Holdings, Inc., No. 17-cv-07086-BLF (N.D. Cal. Jun. 21, 2018) Carter allegedly owns a trademark registration for “The House of Figurine Sculptures.com.” Defendant is Yahoo!, which runs a search engine.  The complaint alleged that Yahoo! uses “two active … Continue reading →

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Dr. Pepper gets an upset tummy: Court approves conjoint analysis/price premium model in ginger ale class action

Posted on June 29, 2018 by rtushnet

Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., 2018 WL 3126385, No. 17-cv-00564 (N.D. Cal. Jun. 26, 2018) (magistrate judge) Canada Dry Ginger Ale allegedly deceived consumers with the phrase “Made From Real Ginger” when, in fact, Canada Dry does not … Continue reading →

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Direct competition + literally false advertising don’t equal standing without more

Posted on June 29, 2018 by rtushnet

Brave Law Firm, LLC v. Truck Accident Lawyers Gp., Inc., No. 17-1156-EFM-GEB, 2018 WL 3122172 (D. Kan. Jun. 26, 2018) Brave sued its personal injury law firm rivals (TALG) under the Lanham Act and Kansas state law based on allegations … Continue reading →

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false patent marking doesn’t presumptively cause injury even in 2-player market

Posted on June 25, 2018 by rtushnet

John Bean Technologies Corp. v. Morris & Assoc., Inc., No. 15-CV-02211, 2018 WL 3039734 (W.D. Ark. Jun. 19, 2018) JBT’s predecessor asserted Patent Act false marking claims, Lanham Act false advertising claims, and various North Carolina and Arkansas State law … Continue reading →

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Three little words make a fair use

Posted on June 14, 2018 by rtushnet

Oyewole v. Ora, 291 F.Supp.3d 422 (S.D.N.Y. 2018) This case grants a motion to dismiss on fair use grounds, though it should have been on lack of substantial similarity in protected expression. Oyewole is a founding member of the spoken-word … Continue reading →

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Second Circuit rejects falsity by necessary implication claim for UL certification

Posted on June 13, 2018 by rtushnet

Board-Tech Electronic Co. v. Eaton Corporation, Cooper Wiring Devices, Inc., — Fed.Appx. —-, 2018 WL 2901336, No. 17-3829-cv (2d Cir. Jun. 11, 2018) Board-Tech and Eaton compete in the market for decorative light switches. Underwriters Laboratories (UL) is an independent … Continue reading →

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Right of Publicity, Litigating the Claims

Posted on June 4, 2018 by rtushnet

Litigating the Claims Rick Kurnit: told the story of litigating the White case, in which the author of the panel opinion didn’t know what a letter-turner was. Had to go to trial with a jury, all of which regularly watched … Continue reading →

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