Author Archives: rtushnet

Reading list: irrationally sticky defaults

Posted on November 4, 2014 by rtushnet

Robert Letzler, Ryan Sandler, Ania Jaroszewicz, Isaac Knowles, and Luke M. Olson, Knowing When to Quit: Default Choices, Demographics and Fraud, Oct. 8, 2014 Abstract: A long literature in psychology and economics has shown that default options influence consumer choices, … Continue reading →

Posted in consumer protection, disclosures, ftc, reading list | Leave a comment

Time to make the DMCA exemptions

Posted on November 4, 2014 by rtushnet

Requests will be collected here as the day continues.  The EFF and the OTW jointly requested a remix exemption for DVD,  Blu-Ray, and streaming video. http://tushnet.blogspot.com/feeds/posts/default?alt=rss

Posted in Uncategorized | Leave a comment

Why do competitors get to challenge claims that consumers don’t?

Posted on November 3, 2014 by rtushnet

I have a political economy explanation for this, but I don’t think that’s good enough.  Challenging a “tests prove” claim—explicit or implicit—in Lanham Act cases means showing that the tests don’t prove the proposition for which they are cited.  This … Continue reading →

Posted in california, consumer protection, http://schemas.google.com/blogger/2008/kind#post | Leave a comment

Might of publicity?

Posted on November 3, 2014 by rtushnet

Using Michelle Obama’s arms to sell training services: Want Michelle Obama’s Arms? Or Better?! training flyer H/T and photo by Zach Schrag. http://tushnet.blogspot.com/feeds/posts/default?alt=rss

Posted in right of publicity | Leave a comment

"we can do anything" ToS might be unconscionable, providing remedy for loss of music

Posted on November 3, 2014 by rtushnet

MacKinnon v. IMVU, Inc., No. H039236  (Cal. Ct. App. Oct. 30, 2014) MacKinnon sued IMVU, which runs an entertainment service, the “instant messaging virtual universe,” alleging that IMVU deceived users about music purchases and wrongfully restricted users’ ability to play … Continue reading →

Posted in california, consumer protection, contracts, http://schemas.google.com/blogger/2008/kind#post | Leave a comment

Insufficient deviation from FDA label and lack of materiality doom false ad claims

Posted on November 3, 2014 by rtushnet

Apotex Inc. v. Acorda Therapeutics, Inc., 2014 WL 5462547, No. 11 Civ. 8803 (S.D.N.Y. Oct. 23, 2014) Zanaflex tablets and capsules (active ingredient tizanidine) are approved by the FDA to treat spasticity.  Somnolence is one of the most common side … Continue reading →

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

The nominative/descriptive line

Posted on October 30, 2014 by rtushnet

I love ads like this, which play with trademark meaning and non-trademark meaning: how should the law analyze them? “Rekindle your love of beautiful books” ad for print books http://tushnet.blogspot.com/feeds/posts/default?alt=rss

Posted in trademark | Leave a comment

FTC challenges Gerber allergy-protection claims in court

Posted on October 30, 2014 by rtushnet

Read the FTC’s explanation.  The FDA approved an extremely limited claim about very sketchy scientific evidence, and Gerber converted that into “the first and only infant formula that meets the criteria for a FDA Qualified Health Claim,” with accompanying gold … Continue reading →

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

Can’t replead TM as false advertising when functionality precludes TM

Posted on October 30, 2014 by rtushnet

Honeywell International Inc. v. ICM Controls Corp., 2014 WL 5438395, No. 11–569 (D. Minn. Oct. 24, 2014) This litigation involves claims for patent infringement, copyright infringement, violations of the Lanham Act, and violations of the Uniform Deceptive Trade Practices Act … Continue reading →

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

Just in time for Halloween: this should make TM owners shiver

Posted on October 29, 2014 by rtushnet

The Ninth Circuit is not kidding about not presuming irreparable harm in trademark cases. Titaness Light Shop, LLC v. Sunlight Supply, Inc., No. 13-16959 (9th Cir. Oct. 9, 2014) Sunlight uses “Titan Controls” for devices that control indoor gardening equipment. … Continue reading →

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