Author Archives: rtushnet

lack of injury dooms false advertising claim based on patent invalidity

Posted on April 6, 2015 by rtushnet

Bern Unlimited, Inc. v. Burton Corp., No. 11–12278, 2015 WL 1442456 (D. Mass. Mar. 31, 2015) Bern, which makes sports helmets, sued six competitors for trade dress infringement of its allegedly unique design, with a small visor and rounded shape.  … Continue reading →

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ANA conference: litigating Lanham Act damages

Posted on April 3, 2015 by rtushnet

Litigating Damages Claims In Lanham Act False Advertising Cases   Alexander Kaplan, Partner, Proskauer Rose LLP: Case law on damages can be tricky/inconsistencies between circuits.  What’s recoverable?  1117(a): D’s profits; damages sustained by P; costs of action.  Statute doesn’t prevent … Continue reading →

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ANA conference: native advertising

Posted on April 3, 2015 by rtushnet

The Natives Are Restless: Legal Perspectives On Native Advertising   John P. Feldman, Partner, Reed Smith LLP: ads have been considered deceptive for not disclosing they are ads/source.  Native ads = sponsored content formatted to fit seamlessly into modern media. … Continue reading →

Posted in advertising, commercial speech, conferences, disclosures, first amendment, ftc, http://schemas.google.com/blogger/2008/kind#post | Leave a comment

Even post-Lexmark, Lanham Act isn’t for garden variety defamation claims

Posted on April 2, 2015 by rtushnet

Mitchell v. Sanchez, No. 14–0996–CV, 2015 WL 1393266 (W.D. Mo. Mar. 25, 2015)   Mitchell alleged that defendants incorrectly stated on various media broadcasts that she had AIDS/HIV. She sued for violation of the Lanham Act, invasion of privacy and … Continue reading →

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Three’s fair use too: play is transformative work

Posted on April 2, 2015 by rtushnet

Adjmi v. DLT Entertainment LTD., No. 14 Civ. 568 (S.D.N.Y. Mar. 31, 2015)   David Adjmi sued for a declaratory judgment that his play, 3C, based on Three’s Company, was a fair use, in order to be able to authorize … Continue reading →

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ANA conference: Miss. AG Jim Hood

Posted on April 1, 2015 by rtushnet

Keynote Address, Jim Hood, Attorney General, State of Mississippi, President, National Association of Attorneys General (NAAG)   Law enforcement has to be moving to the internet, where crime is going. Worked with ISPs on child porn/hash screening. We do hacking, … Continue reading →

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ANA conference: surveys

Posted on April 1, 2015 by rtushnet

What Do Consumers Think? Using Online Surveys To Demonstrate Implied Claims   David G. Mallen, Co-Chair, Advertising Disputes, Loeb & Loeb LLP: NAD now forum of choice for many ad challenges, especially since the standard of proof is different for … Continue reading →

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ANA conference: keynotes

Posted on April 1, 2015 by rtushnet

2015 ANA Conference Keynote Address: Michael O’Rielly, Commissioner, FCC Missed most of this due to transit, but he thanked advertisers for defending their interests before the FCC and said they should be involved before an issue reaches his desk.  Not … Continue reading →

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Reading list: descriptive and suggestive TMs

Posted on March 31, 2015 by rtushnet

Jake Linford, The False Dichotomy Between Suggestive and Descriptive Trademarks. Abstract: Classifying a trademark as descriptive rather than suggestive fundamentally alters the scope of trademark protection. A descriptive mark, derived from a feature of the product or service sold, only … Continue reading →

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A legitimate affiliation confusion claim?

Posted on March 27, 2015 by rtushnet

Grubbs v. Sheakley Group, Inc., 2015 WL 1321126, No. 1:13cv246 (S.D. Ohio Mar. 18, 2015)   The court adopted the magistrate judge’s recommendations in this case, dismissing Lanham Act claims (and RICO claims) and declining to retain jurisdiction over state … Continue reading →

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