Category Archives: trademark

A little more than kin: prominent house mark overcomes weak evidence of confusion

Posted on June 16, 2014 by rtushnet

KIND LLC v. Clif Bar & Co., 2014 WL 2619817, No. 14 Civ. 770 (S.D.N.Y. June 12, 2014) KIND sought a preliminary injunction against Clif Bar’s new trade dress for its MOJO bars; the court denied the motion.  KIND defines … Continue reading →

Posted in surveys, trademark | Leave a comment

No nominative fair use or dilution dismissals if plaintiff pleads the elements?

Posted on June 11, 2014 by rtushnet

Valley Forge Military Academy Found. v. Valley Forge Old Guard, Inc., No. 09–2373, 2014 WL 2476115 (E.D. Pa. Jun. 2, 2014) Nominative fair use doesn’t have to work this badly, guys! Valley Forge Military Academy Foundation operates the Valley Forge … Continue reading →

Posted in dilution, procedure, trademark | Leave a comment

(pot)head of liability: Hershey’s sues marijuana candy producer

Posted on June 5, 2014 by rtushnet

Here’s the story.  I’ve been waiting for this for years, ever since a NYT story that included similar illustrations.  As with e-cigarettes, an unregulated field full of small players tends to have a lot of playing fast and loose with … Continue reading →

Posted in dilution, trademark | Leave a comment

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

all confusion is actionable but some doesn’t count

Posted on May 27, 2014 by rtushnet

Yes, I know that’s contradictory, but it’s a result of expansive doctrine which courts then seek to cabin by finding reasons to disregard certain evidence–such as evidence here that people in a sophisticated business still made errors about which entitty … Continue reading →

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Reading list: TM/false advertising surveys

Posted on May 23, 2014 by rtushnet

Trademark and Deceptive Advertising Surveys: Law, Science, and Design (ed. Shari Seidman Diamond & Jerre B. Swann, 2012): A collection of essays surveying various aspects of the law and offering the authors’ opinions on those aspects.  Of particular note: Itmar … Continue reading →

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

Water wars: lack of secondary meaning precludes injunction

Posted on May 21, 2014 by rtushnet

Buzz Bee Toys, Inc. v. Swimways Corp., — F.Supp.2d —- (2014), 2014 WL 2006799, No. 14–1948 (D.N.J. May 15, 2014) Here, the court found likely confusion predicated on the near identity between the parties’ product configurations, but denied a preliminary … Continue reading →

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When is help with a free process worth $80?

Posted on May 20, 2014 by rtushnet

Charging $80 to fill out a free application for student aid?  Vox has a story about two websites that do so, using official sounding domain names.  Shades of DMV.org.  The story claims that the federal government’s recent registration of a … Continue reading →

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

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 →

Posted in commercial speech, defamation, dilution, disclosures, first amendment, my writings, trademark | Leave a comment

No similarity means no infringement

Posted on May 9, 2014 by rtushnet

Falcon Stainless, Inc. v. Rino Companies, Inc., — Fed.Appx. —-, 2014 WL 1779246 (9th Cir. May 6, 2014) After the district court mostly denied a preliminary injunction, the parties proceeded to trial on an implausible trademark claim; the jury found … Continue reading →

Posted in tortious interference, trademark | Leave a comment