Category Archives: preemption

Wannabe competitor lacks standing to challenge false advertising

Posted on March 25, 2015 by rtushnet

Maine Springs, LLC v. Nestlé Waters North America, Inc., 2015 WL 1241571, No. 2:14–cv–00321 (D. Me. Mar. 18, 2015)   Maine Springs was founded seven years ago to start a bottled water operation in Poland Spring, Maine. Maine Springs owned … Continue reading →

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post-POM claim based on false implication of FDA approval survives

Posted on March 25, 2015 by rtushnet

Par Sterile Products, LLC v. Fresenius Kabi USA LLC, 2015 WL 1263041, No. 14 C 3349 (N.D. Ill. Mar. 17, 2015)   Par’s vasopressin injection product, Vasostrict, is a FDA-approved pharmaceutical. Fresenius’s vasopressin injection product is not.  Vasopressin is a … Continue reading →

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Amicus brief in Dryer v. NFL

Posted on March 19, 2015 by rtushnet

Mark McKenna and I drafted a law professors’ amicus in Dryer v. NFL, a right of publicity case now on appeal in the 8th Circuit. We argued for a strong First Amendment standard for non-advertising speech as well as for … Continue reading →

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9th Circuit reverses preemption finding in consumer protection case

Posted on March 16, 2015 by rtushnet

Reid v. Johnson & Johnson, 2015 WL 1089583, No. 12–56726, — F.3d – (9th Cir. Mar. 13, 2015)   Reid sued defendants (here J&J) based on claims about Benecol, a vegetable oil-based spread sold as a healthy substitute for butter … Continue reading →

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Copyright preemption bars athletes’ right of publicity claims against photo sales

Posted on March 10, 2015 by rtushnet

Maloney v. T3Media, Inc., No. 14-cv-05048 (C.D. Cal. Mar. 6, 2015)   Plaintiffs, members of the Catholic University basketball team from 1997 until 2001, sued T3, which provides cloud-based storage, hosting and licensing services for digital content uploaded by third-parties. … Continue reading →

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Third Circuit affirms competitor’s victory in college course copying case

Posted on February 11, 2015 by rtushnet

CollegeSource, Inc. v. AcademyOne, Inc., — Fed.Appx. —-, 2015 WL 469041, No. 12–4167 (3d Cir. Feb. 5, 2015)   CS and A1 compete in the market for college credit-transfer information. CS alleged that A1 misappropriated the contents of CS’s main … Continue reading →

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False advertising claims over music licensing survive

Posted on February 11, 2015 by rtushnet

Tresóna Multimedia LLC v. Legg, 2015 WL 470228, No. CV–14–02141 (D. Az. Feb. 4, 2015) Tresóna is a music copyright licensing company that sells custom arrangement licenses for particular pieces of music, allowing the purchaser to arrange a piece of … Continue reading →

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New article: images and the right of publicity

Posted on February 3, 2015 by rtushnet

Rebecca Tushnet, A Mask that Eats into the Face: Images and the Right of Publicity (38 Columbia J.L. & Arts, forthcoming 2015)   Abstract: In their eagerness to reward celebrities for the power of their “images,” and to prevent other … Continue reading →

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Soul survivor: publicity and TM claims against recorded performance fail

Posted on December 17, 2014 by rtushnet

Cummings v. Soul Train Holdings LLC, 2014 WL 7008952, No. 14 Civ. 36 (S.D.N.Y. Dec. 12, 2014) This right of publicity/trademark case based on use of recorded performances to which the plaintiff didn’t own the copyright could’ve gone a lot … Continue reading →

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Consumer suit against juice name preempted

Posted on December 15, 2014 by rtushnet

Bell v. Campbell Soup Co.,  No. 4:14cv291, 2014 WL 6997611 (N.D. Fla. Dec. 11, 2014) The facts are essentially the same as in Pom Wonderful v. Coca-Cola, but the result is that only competitors, not consumers, can sue for false … Continue reading →

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