Category Archives: damages

claims about conduct’s legality don’t violate Lanham Act

Ameritox, Ltd. v. Millennium Laboratories, Inc., No. 11–cv–775, 2014 WL 1456347 (M.D. Fla. Apr. 14, 2014) Previously, there have been several opinions in this false advertising case between competitors in the urine testing market.  Here, Millennium won summary judgment on … Continue reading


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dispute over reliability of state of the art goes to trial

Nellcor Puritan Bennett LLC v. CAS Medical Systems, Inc., No. 2:11–cv–15697, 2014 WL 1304428 (E.D. Mich. Mar. 28, 2014) The parties compete to sell cerebral oximeters, used by surgeons and anesthesiologists to monitor the oxygen saturation level of blood in … Continue reading

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Next Great Copyright Act Conference, remedies

Remedies and Enforcement Moderator: Mitchell Zimmerman, Fenwick & West LLP To copyright maximalists, the entire population of the world seems to be Holmes’ bad man. Corynne McSherry, Electronic Frontier Foundation Broad agreement on need to fix, even if we don’t … Continue reading

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infringement can occur even if consumers don’t remember it

Beastie Boys v. Monster Energy Co., No. 12 Civ. 6065 (SDNY Mar. 18, 2014) The Beastie Boys sued for copyright infringement and trademark infringement based on Monster’s allegedly unauthorized use of Beastie Boys music to accompany a video promoting a … Continue reading

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Copyright infringement doesn’t violate the Lanham Act

Masck v. Sports Illustrated, No. 13-10226 (E.D. Mich. Mar. 10, 2014) Previous discussion, in which I got exercised about the court’s misapplication of Dastar, herein corrected.  Masck took an “iconic” photo of defendant Desmond Howard, running for a touchdown during … Continue reading

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Deference to the PTO’s acceptance of a specimen and tacking

Reynolds Consumer Products, Inc. v. Handi-Foil Corp., 2014 WL 794277, No. 13-cv-214 (E.D. Va. Feb. 27, 2014) Reynolds sued Handi-Foil, its competitor in the market for aluminum foil, for trade dress infringement and false advertising.  Here, the court rejects Handi-Foil’s … Continue reading

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Glass houses: incidental use of sculpture in photo is fair

Neri v. Monroe, No. 11-cv-429 (W.D. Wis. Feb. 26, 2014) (magistrate judge), on remand from 726 F. 3d 989 (7th Cir. 2013) From the outside, this doubtless expensive dispute looks like it resulted from an artist whose outrage over a … Continue reading

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FTC successfully imposes individual liability on high-level employee

Federal Trade Commission v. Ross, 2014 WL 703739, No. 12-2340 (4th Cir. Feb. 25, 2014) The hits (by which I mean FTC victories) just keep on coming. Here, the FTC sued Innovative Marketing and several of its high-level executives and … Continue reading

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false comparative ads lead to profit disgorgement

General Steel Domestic Sales, LLC v. Chumley, No. 10–cv–01398, 2014 WL 788015 (D. Colo. Feb. 27, 2014) The Rule 59(e) motion to amend judgment in this false advertising case was denied for want of clear error. The parties, General Steel … Continue reading

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PTO/NTIA Green Paper Hearing, statutory damages

Department of Commerce Public Meeting: Copyright Policy, Creativity, and Innovation in the Digital Economy United States Patent and Trademark Office – Madison Auditorium Live webcast available at: The Appropriate Calibration of Statutory Damages: Individual File Sharers and Secondary Liability … Continue reading

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