Author Archives: rtushnet

IPSC session 2 copyright/trademark

Posted on August 8, 2024 by rtushnet

Copyrightable Subject Matter Kevin Collins, Copyright in Suburbia (Collins is a registered architect as well as a law prof) The stakes: whether © is “working” in suburbia matters in ways that might not be self-evident. Snack box approach: scattered observations … Continue reading →

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IPSC: IP in the Aftermath of the Supreme Court and some TM

Posted on August 8, 2024 by rtushnet

Mark Bartholomew, Publicity Rights After Warhol Risk that courts will apply Warhol to ROP cases, but transformativeness is the only element in the ROP defense as defined by the California SCt rather than a multifactor fair use test. This could … Continue reading →

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IPSC Opening Plenary Session

Posted on August 8, 2024 by rtushnet

IP Outside the (Doctrinal) Box Andrew Gilden: Love & Hate in IP IP’s struggles with joy, pleasure, and fun—happens with sex, but also with enjoyment. Courts are pretty openly hostile to statements by Ds that they enjoyed engaging in the … Continue reading →

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“fair and skill-based” may falsely imply absence of bots in online gaming

Posted on July 29, 2024 by rtushnet

Skillz Platform Inc. v. Papaya Gaming, Ltd., 2024 WL 3526853, No. 24cvl646(DLC) (S.D.N.Y. Jul. 23, 2024) Skillz sued its competitor in mobile gaming, Papaya, for violating federal and NY law against false advertising by falsely advertising that its games pit … Continue reading →

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“Pure Irish Butter” plausibly misleads as to absence of dangerous chemicals

Posted on July 25, 2024 by rtushnet

Winans v. Ornua Foods North America Inc., — F.Supp.3d —-, 2024 WL 1741079, No. 2:23-cv-01198-FB-RML (E.D.N.Y. Apr. 23, 2024) Plaintiffs alleged that the presence of per- and polyfluoralkyl substances (“PFAS”) in Kerrygold butter made the use of “pure Irish butter” … Continue reading →

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No copyright over simple colors and shapes used to annotate X-rays

Posted on July 25, 2024 by rtushnet

Overjet, Inc. v. VideaHealth, Inc., 2024 WL 3480212, No. 24-cv-10446-ADB (D. Mass. Jul. 19, 2024) The court denied Overjet’s request for a preliminary injunction on copyright and false advertising claims, concluding that Overjet’s selection of colors and shapes for annotating … Continue reading →

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Trademark law and LinkedIn resumes: watch out?

Posted on July 25, 2024 by rtushnet

Portkey Tech. PTE Ltd v. Venkateswaran, 2024 WL 3487735, No. 23-CV-5074 (JPO) (S.D.N.Y. Jul. 19, 2024) Another case that starkly shows the effects of trademark’s abandonment of any harm requirement, not to its benefit, where false advertising claims fail because … Continue reading →

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Announcing the Seventh Edition of Advertising & Marketing Law Casebook by Goldman & Tushnet

Posted on July 23, 2024 by rtushnet

Eric Goldman and I are pleased to announce the seventh edition of our casebook, Advertising & Marketing Law: Cases & Materials. It is available for purchase in the following formats: * DRM-free PDF file. Price: $12* Kindle. Price: $9.99* Print-on-demand paperback from Amazon. … Continue reading →

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“plant-based” is plausibly misleading without qualification; can asterisks save the day?

Posted on July 18, 2024 by rtushnet

Whiteside v. Kimberly Clark Corp., No. 23-55581, 2024 WL 3435308, — F.4th — (9th Cir. Jul. 17, 2024) Whiteside alleged that KC’s “plant-based” baby wipes were misleadingly advertised; the court of appeals revived some claims that the district court had … Continue reading →

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Plaintiffs win partial summary judgment on falsity/materiality in “made in US” tea case

Posted on July 17, 2024 by rtushnet

Banks v. R.C. Bigelow, Inc., No. 2:20-cv-06208-DDP-RAOx, 2024 WL 3330554 (C.D. Cal. Jul. 8, 2024) The court here grants the consumer plaintiffs’ motion for partial summary judgment on their theory of falsity of Bigelow’s “manufactured in the USA” claim for … Continue reading →

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