Author Archives: rtushnet

National Review reports on false advertising suit against Trump University

Posted on February 25, 2016 by rtushnet

Hey, the National Review found a consumer protection lawsuit it likes: the one against Trump University.  If he’s elected, do we get to call him the Conman-in-Chief? from Blogger http://ift.tt/1WLfYtg

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Another court finds keyword buys don’t cause likely confusion

Posted on February 24, 2016 by rtushnet

USA Nutraceuticals Group, Inc. v. BPI Sports, LLC, 2016 WL 695596, No. 15-CIV-80352 (S.D. Fla. Feb. 22, 2016)   Plaintiff, here “Beast,” sells sports nutrition supplements using trademarks such as “Beast,” “Beast Sports,” “Beast Mode,” and “Train Like a Beast.” … Continue reading →

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Second Circuit upholds law against “credit surcharges” that allows “cash discounts”

Posted on February 22, 2016 by rtushnet

Expressions Hair Design v. Schneiderman, 803 F. 3d 94 (2d Cir. 2015)   Somehow I missed this when it came out last September! New York General Business Law § 518 provides that “[n]o seller in any sales transaction may impose … Continue reading →

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WIPIP Session 7: International issues

Posted on February 20, 2016 by rtushnet

Session 7 Room 145: International IP   Sean Flynn, Mike Palmedo, & Walter Park, Creating a Database of Changes to Copyright User Rights in 40 Nations   Fair dealing is flexible (uses a balancing test) but not open (limited classes … Continue reading →

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WIPIP session 6: IP Theory

Posted on February 20, 2016 by rtushnet

Session 6 IP Theory 3   BJ Ard, More Property-Like than Property: The Asymmetry of Remedies in Tangible and Intellectual Property   Real property remedies are less “property-like” than IP remedies.  Property v. liability rules. Real property often much more … Continue reading →

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WIPIP Session 5: Copyright 2

Posted on February 20, 2016 by rtushnet

Session 5 Copyright 2   Zahr Said, A Transactional Approach to the Lay Observer in Copyright Law   Internal contradictions in uses of the observer.  Humanities perspective: copyright doesn’t have a theory of reading/interpretation/engaging with works.  Reader response theory as … Continue reading →

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WIPIP Session 4: Design

Posted on February 20, 2016 by rtushnet

Session 4: IP, Design, User Experience   Sarah Burstein, Reviving Ornamentality: Fed. Cir. killed ornamentality in design; right now it means nothing other than Morton-Norwich nonfunctionality. She thinks we should bring it back.  Two aspects: (1) “matter of concern” in … Continue reading →

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WIPIP Session 3: Trademark again

Posted on February 20, 2016 by rtushnet

Session 3 Trademark 2   Irene Calboli & Dan Hunter, Trademark Proliferation: Lots of marks—Louboutin soles; motion of Lamborghini doors; etc.  Why so many?  Very broad definition of what can be protected as a mark + ill-interpreted concept of distinctiveness.  … Continue reading →

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IPSC Session 2: Trademark 1

Posted on February 19, 2016 by rtushnet

Trademark 1   Paul Heald, Testing Theories of Tarnishment in Trademark and Copyright Law   Tarnishment should be treated like false advertising: you should have to prove some (likely) damage to your TM to win, rather than presumptions.  Tarnishment is … Continue reading →

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New article forthcoming on trademark registration

Posted on February 19, 2016 by rtushnet

New article:  Registering Disagreement: Registration in Modern American Trademark Law, 130 Harvard L. Rev. (forthcoming 2016) Abstract: Trademark scholars widely agree that our current system for evaluating what rights a trademark owner should have over others’ uses of their (or … Continue reading →

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