Author Archives: rtushnet

False endorsement analyzed as explicit v. implicit falsity

Posted on January 6, 2015 by rtushnet

First Data Merchant Services Corp. v. SecurityMetrics, Inc., 2014 WL 7409537, No. RDB–12–2568 (D. Md. Dec. 30, 2014)   Earlier ruling excluding false endorsement survey.  Even earlier ruling allowing false endorsement theory to proceed.   This “contentious” case involved a … Continue reading →

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Reading list: copyrightability of plastination

Posted on January 6, 2015 by rtushnet

Via Larry Solum.  I haven’t read this but I’ve been fascinated by plastination for years, and finally my interests unite.  Kirill Ershov, A Macabre Fixation: Is Plastination Copyrightable?: Abstract: Dr. Gunther von Hagens invented plastination as a process to preserve … Continue reading →

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claims about patent might be misleading if on-sale bar clearly applied

Posted on January 6, 2015 by rtushnet

Bern Unlimited, Inc. v. Burton Corp., 25 F. Supp. 3d 170 (D. Mass. 2014)   Bern, which sells sports helmets, sued six competing helmet makers.  It initially sued for design patent infringement, but dropped that claim and switched to trade … Continue reading →

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Affiliates are advertiser’s agents

Posted on January 5, 2015 by rtushnet

American Bullion, Inc. v. Regal Assets, LLC, 2014 WL 7404597, No. CV 14–01873 (C.D. Cal. Dec. 30, 2014)   Regal sought reconsideration of the court’s grant of a preliminary injunction on false advertising claims, which was granted in part.  American … Continue reading →

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

statements by competitors are not matters of public interest

Posted on January 2, 2015 by rtushnet

Broadspring, Inc. v. Congoo, LLC, 2014 WL 7392905, No. 13–CV–1866 (S.D.N.Y. Dec. 29, 2014)   As part of resolving various evidentiary issues before trial between these online advertising service competitors, the court gave guidance on some more general false advertising … Continue reading →

Posted in damages, defamation, http://schemas.google.com/blogger/2008/kind#post | Leave a comment

Is "following" on Twitter endorsement?

Posted on January 2, 2015 by rtushnet

If William Shatner is right, does Twitter have a false endorsement/right of publicity problem when it puts sponsored accounts into celebrities’ “following” lists, even with a disclaimer?  Does Twitter’s ToS do enough to insulate it from such claims?  Via +truthinadvertising.org … Continue reading →

Posted in right of publicity, trademark | Leave a comment

I’m stuck on Choc-Aid

Posted on January 1, 2015 by rtushnet

because it melted in my hands: Choc-Aid (R) Milk Chocolate bandages Note the (R).  http://tushnet.blogspot.com/feeds/posts/default?alt=rss

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Accusation of "instability" actionable but use of generic term isn’t confusing

Posted on January 1, 2015 by rtushnet

EndoSurg Medical, Inc. v. EndoMaster Medical, Inc., No. GJH–14–2827, 2014 WL 7336691 (D. Md. Dec. 19, 2014)   Plaintiff EndoSurg makes endoscope replacement components, and plaintiff EndoCure makes custom rigid and small diameter flexible endoscopes.  (Endoscopic surgery requires inserting an … Continue reading →

Posted in http://schemas.google.com/blogger/2008/kind#post, tortious interference, trade secrets, trademark | Leave a comment

Pom Wonderful’s happy new year on likely confusion

Posted on December 31, 2014 by rtushnet

Pom Wonderful LLC v. Hubbard, No. 14-55253 (9th Cir. Dec. 30, 2014) The Ninth Circuit is the source of some of IP’s highest highs and its lowest lows.  The reader is invited to consider where this decision fits.  The district … Continue reading →

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Transformative work of the day

Posted on December 30, 2014 by rtushnet

Indiana Bones and the Raiders of the Lost Bark.  Via ST. http://tushnet.blogspot.com/feeds/posts/default?alt=rss

Posted in http://schemas.google.com/blogger/2008/kind#post, parody, trademark | Leave a comment