Category Archives: trademark

Is nominative fair use an affirmative defense in the 9th Circuit?

Posted on April 8, 2015 by rtushnet

Zest IP Holdings, LLC v. Implant Direct Mfg. LLC, No. 10cv541, 2015 WL 1510755 (S.D. Cal. Feb. 3, 2015)   As usual, I’m ignoring the patent parts of this patent/trademark/false advertising case.  Zest alleged that Implant Direct sold the “GoDirect” … Continue reading →

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former founder’s overclaiming not enough for likely success on false association

Posted on April 8, 2015 by rtushnet

Infogroup, Inc. v. DatabaseLLC, — F.Supp.3d —-, 2015 WL 1499066, No. 8:14–CV–49 (D. Neb. Mar. 30, 2015)   The parties compete in the market for databases about consumers and businesses.  Individual defendants are all former employees of Infogroup, including Vinod … Continue reading →

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lack of injury dooms false advertising claim based on patent invalidity

Posted on April 6, 2015 by rtushnet

Bern Unlimited, Inc. v. Burton Corp., No. 11–12278, 2015 WL 1442456 (D. Mass. Mar. 31, 2015) Bern, which makes sports helmets, sued six competitors for trade dress infringement of its allegedly unique design, with a small visor and rounded shape.  … Continue reading →

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Reading list: descriptive and suggestive TMs

Posted on March 31, 2015 by rtushnet

Jake Linford, The False Dichotomy Between Suggestive and Descriptive Trademarks. Abstract: Classifying a trademark as descriptive rather than suggestive fundamentally alters the scope of trademark protection. A descriptive mark, derived from a feature of the product or service sold, only … Continue reading →

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A legitimate affiliation confusion claim?

Posted on March 27, 2015 by rtushnet

Grubbs v. Sheakley Group, Inc., 2015 WL 1321126, No. 1:13cv246 (S.D. Ohio Mar. 18, 2015)   The court adopted the magistrate judge’s recommendations in this case, dismissing Lanham Act claims (and RICO claims) and declining to retain jurisdiction over state … Continue reading →

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Farley and Tsai on the Redskins trademark

Posted on March 23, 2015 by rtushnet

At Prawfsblawg, Professors Christine Haight Farley and Robert Tsai analyze the First Amendment case against the Redskins cancellation, and conclude that 2(a) should survive scrutiny. http://tushnet.blogspot.com/feeds/posts/default?alt=rss

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Bad 230 ruling for LivingSocial

Posted on March 23, 2015 by rtushnet

Faegin v. LivingSocial, Inc., 2015 WL 1198654, No. 14cv00418 (S.D. Cal. Mar. 16, 2015)   After losing its attempt to mandate arbitration, LivingSocial gets a terrible §230 ruling in this trademark infringement etc. case involving vouchers it sold.   The … Continue reading →

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court refuses to enjoin consumer protection law on First Amendment grounds

Posted on March 23, 2015 by rtushnet

Loan Payment Administration LLC v. Hubanks, 2015 WL 1245895, No. 14-CV-04420 (N.D. Cal. Mar. 17, 2015)   A misinterpretation of nominative fair use mars this otherwise quite sensible rejection of a First Amendment challenge to a consumer protection law.   … Continue reading →

Posted in california, consumer protection, disclosures, first amendment, http://schemas.google.com/blogger/2008/kind#post, trademark | Leave a comment

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 →

Posted in first amendment, http://schemas.google.com/blogger/2008/kind#post, my writings, preemption, right of publicity, trademark | Leave a comment

How does the doctrine of foreign equivalents apply to scandalousness?

Posted on March 18, 2015 by rtushnet

Restaurant with questionable name opens in Arlington.  Unregistrable? HT Zach Schrag http://tushnet.blogspot.com/feeds/posts/default?alt=rss

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