Author Archives: rtushnet

Public comments on proposed DMCA classes

Posted on February 10, 2015 by rtushnet

Public comments on the proposed DMCA classes are up. I had the great privilege of working with EFF’s Corynne McSherry on the noncommercial remix exemption.  The comment of EFF and the Organization for Transformative works is here.  I believe we … Continue reading →

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false claim of gov’t affiliation not actionable by non-gov’t plaintiff

Posted on February 10, 2015 by rtushnet

Two Jinn, Inc. v. Government Payment Serv., Inc., A136984, 2015 WL 456063 (Cal. Ct. App. Feb. 3, 2015)   Two Jinn (dba Aladdin Bail Bonds), a licensed bail agent, tried to enjoin GPS, a financial services entity, from allegedly engaging … Continue reading →

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No TM or false advertising claims without use of mark in US commerce

Posted on February 9, 2015 by rtushnet

Belmora LLC v. Bayer Consumer Care AG, No.  1:14-cv-00847 (E.D. Va. Feb. 6, 2015)   Territoriality lives!  Belmora sells an OTC pain relief product, Flanax, in the US with a similar trade dress to, and capitalizing on the good will … Continue reading →

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WIPIP, part 2, Session 3 Trademark

Posted on February 9, 2015 by rtushnet

Session 3, Trademark   Leah Chan Grinvald, Constructive Consent   Courts adopt as evidence of fame the number of users = strength = fame.  Example: the number of Flipboard users accepted by a court in October.  But that also is … Continue reading →

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WIPIP, Part 2, Session 2, Trademark

Posted on February 9, 2015 by rtushnet

Glynn Lunney, Inefficient Trademark Law   Older TM lawyer would be surprised at breadth: inherently distinctive marks were the only marks, and double identity was essentially the rule.  Today: looks very different. What will it look like in 100 years—will … Continue reading →

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WIPIP, part 2: Copyright

Posted on February 9, 2015 by rtushnet

Session 1, Copyright   Jim Gibson [with Chris Cotropia]: Random sample of copyright cases filed 20080-2011, coded 957 cases for parties, claims, remedies requested, final adjudication. The filesharing cases and PRO cases (music) tell the expected IP story. Ps from … Continue reading →

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WIPIP Session 4, Cross-IP

Posted on February 6, 2015 by rtushnet

Mark Lemley (& Mark McKenna), Scope   Midnight in the Garden of Good & Evil copyright infringement case.  Court rejects invalidity claim: the photo has some creative elements.  So it has to go to a jury on infringement. But we … Continue reading →

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WIPIP Session 3: Copyright

Posted on February 6, 2015 by rtushnet

Session 3, Copyright Abraham Bell (& Gideon Parchomovsky), Copyright Trust   Incentives to create: if we recognize too few owners, then we haven’t incentivized them enough.  If we have too many owners, we disturb the efficiency of use.  Many owners … Continue reading →

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WIPIP Session 2: Trademark

Posted on February 6, 2015 by rtushnet

Jeremy Sheff, The Ragged Edge of the Lanham Act   Similar to Tushnet project; will focus on question about Lanham Act’s structuring of interface between PTO and federal courts.  Registrability v. enforceability: incontestability; §2(a) bars versus the common law—some of … Continue reading →

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WIPIP session 1: Trademark

Posted on February 6, 2015 by rtushnet

WIPIP Session 1: TM Deborah Gerhardt (& Jon McClanahan), Colors   20 years of Qualitex: who is registering color? How do marketing folks view color? People remember color images more accurately/longer than B&W; color cues amplify legibility and familiarity; send … Continue reading →

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