Category Archives: first amendment

Not the NAD: court won’t stop plaintiff from publicizing preliminary injunction

Posted on September 12, 2014 by rtushnet

Homeland Housewares, LLC v. Euro-Pro Operating LLC, No. 14-cv-03954 (C.D. Cal. Sept. 10, 2014) Euro-Pro sought to keep Homeland from publicizing the court’s preliminary injunction against it (granted on Lanham Act false advertising grounds). Shortly after the preliminary injunction issued, … Continue reading →

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COOL story, part 3: dissents

Posted on July 31, 2014 by rtushnet

Judge Henderson dissented, believing the question of Zauderer’s appropriate scope to have been resolved in R.J. Reynolds and unfairly revisited. Judge Brown also dissented, quite vigorously. Under the majority’s reasoning, “a business owner no longer has a constitutionally protected right … Continue reading →

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COOL story, part 2: concurrences

Posted on July 31, 2014 by rtushnet

AMI continued: concurrences Judge Rogers concurred in part.  She wrote to disassociate herself from the suggested collapse of Central Hudsonand Zauderer.  “Viewing Zaudereras simply an application of Central Hudson to special circumstances … finds support in neither Supreme Court precedent … Continue reading →

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COOL story, part 1: DC Circuit upholds country of origin labeling rule

Posted on July 31, 2014 by rtushnet

American Meat Institute v. U.S. Dep’t of Agriculture, No. 13-5281 (D.C. Cir. July 29, 2014) The D.C. Circuit here, en banc, upholds country of origin labeling (COOL) requirements for meat, and in the process holds that Zauderer’s standard for compelled … Continue reading →

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Trademark exceptionalism wins another round in Maryland

Posted on July 24, 2014 by rtushnet

Hershey Co. v. Friends of Steve Hershey, 2014 WL 3571691, No. WDQ–14–1825 (D. Md. July 17, 2014) Thanks to prodding from Eric Goldman for me to blog about it, here’s a case where we learn that the only constraint on … Continue reading →

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regulating TM owner’s confusing use of TM doesn’t violate First Amendment

Posted on July 23, 2014 by rtushnet

AEP Texas Comm. & Indus. Retail Ltd. P’ship v. Public Util. Comm’n, 2014 WL 3558763, No. 03–13–00358–CV, — S.W.3d – (Tex. Ct. App. July 17, 2014) A complicated regulatory background is the setting for this case about the evidence required … Continue reading →

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unregistrable means unprotectable by sec. 43 as well

Posted on June 4, 2014 by rtushnet

Renna v. County of Union, N.J., 2014 WL 2435775, No. 2:11–3328 (D.N.J. May 29, 2014) This is a well-written opinion whose legal conclusions are in part obvious but nice to have down in print and in part quite striking: I … Continue reading →

Posted in first amendment, trademark | 2 Comments

New article: More than a Feeling: Emotion and the First Amendment

Posted on May 16, 2014 by rtushnet

127 Harv. L. Rev. (forthcoming 2014). Abstract: First Amendment law has generally been leery of government attempts to change the marketplace of emotions—except when it has not been. Scientific evidence indicates that emotion and rationality are not opposed, as the … Continue reading →

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is noncompliance with FDA definitions inherently misleading?

Posted on April 30, 2014 by rtushnet

The FDA just issued a rule for nutritional claims about DHA and EPA. Explanation here. Some of the comments objected to the proposed rule on First Amendment grounds, and the FDA’s response is of interest. Basically, there’s a special statutory … Continue reading →

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conflict mineral disclosure unconstitutional, DC Circuit rules

Posted on April 15, 2014 by rtushnet

National Association of Manufacturers v. Securities and Exchange Commission, No. 13-5252 (D.C. Cir. Apr. 14, 2014) If we needed an example of how the First Amendment can reinstate Lochner, this would be a good one.  Here we have a regulation, … Continue reading →

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