Category Archives: http://schemas.google.com/blogger/2008/kind#post

Twiqbal doesn’t apply to unclean hands defense

Posted on April 9, 2014 by rtushnet

Newborn Bros. Co. v. Albion Engineering Co., No. 12–2999, 2014 WL 1272109 (D.N.J. Mar. 27, 2014) Newborn sued its competitor Albion for allegedly falsely advertising its dispensing guns (used to apply sealants and adhesives) as made in the US when … Continue reading →

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Statements about quality care were puffing despite standard of care

Posted on April 8, 2014 by rtushnet

Intermountain Stroke Center, Inc. v. Intermountain Health Care, Inc., No. 2:13–cv–00909, 2014 WL 1320281 (D. Utah Mar. 31, 2014) ISC sued IHC for violations of the Lanham Act and Utah’s Truth in Advertising Act and intentional interference with actual/prospective economic … Continue reading →

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Statements to sellers of must-have component actionable under Lanham Act

Posted on April 8, 2014 by rtushnet

TriStar Investors, Inc. v. American Tower Corp., No. 3:12–cv–0499, 2014 WL 1327663 (N.D. Tex. Apr. 3, 2014) Cell towers are mostly owned and operated by tower companies, which rent wireless carriers the right to locate equipment on their towers.  Most … Continue reading →

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Is flexibility the same as unpredictability?

Posted on April 8, 2014 by rtushnet

Thought on the anti-fair use meme being used, mostly, to oppose the introduction of fair use in other countries: the criticism is that fair use’s flexibility means that it’s inherently and undesirably unpredictable. (See, e.g., the Kernochan Center’s submission to … Continue reading →

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dispute over reliability of state of the art goes to trial

Posted on April 8, 2014 by rtushnet

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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Juxtaposed claims can produce literal falsity

Posted on April 8, 2014 by rtushnet

Groupe SEB USA, Inc. v. Euro–Pro Operating LLC, No. 14–137, 2014 WL 1316039 (W.D. Pa. Apr. 1, 2014) (magistrate judge) The parties compete to sell household steam irons.  Plaintiff’s are sold under the name Rowenta, allegedly the top sellers by … Continue reading →

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failure to conform to dog breed standard isn’t literally false

Posted on April 7, 2014 by rtushnet

It’s really more of a guideline. Wagner v. Circle W Mastiffs, No. 2:08–CV–00431, 2014 WL 1308713 (S.D. Ohio Mar. 31, 2014) I’m skipping the many and complex defamation claims.  The Lanham Act bit: the Lanham Act plaintiffs alleged that the … Continue reading →

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What does Lexmark mean for the "commercial advertising or promotion" test?

Posted on April 7, 2014 by rtushnet

Goodman v. Does 1–10, No. 4:13–CV–139, 2014 WL 1310310 (E.D.N.C. Mar. 28, 2014) The first post-Lexmarkopinion I’ve seen, and a thoughtful one at that. The complaint alleged various defamation and unfair competition claims based on postings on a website, localdirtbags.com, … Continue reading →

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

Transformative work of the day?

Posted on April 7, 2014 by rtushnet

Browser plug-in that swaps Daily Mail headlines with reader comments.  Nearly complete identity but for the arrangement, but also commentary, and this reaction shows how the two are intertwined: “This plugin is definitely funny, but there’s something illuminating about it … Continue reading →

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Reading list: judging similarity in copyright

Posted on April 7, 2014 by rtushnet

Shyamkrishna Balganesh, Irina D. Manta, & Tess Wilkinson-Ryan, Judging Similarity, 100 Iowa L. Rev. (forthcoming 2014) Our first study reveals that basic knowledge about the act of copying, meaning that one work was copied from the other, greatly influences individuals’ … Continue reading →

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