Kate Spade fails to toss outlet lawsuit alleging inferior quality compared to boutiques

Posted on October 5, 2017 by rtushnet
Irvine v. Kate Spade & Co., 2017 WL 4326538, No. 16-CV-7300
(S.D.N.Y. Sept. 28, 2017)
Plaintiffs alleged that Kate Spade marks merchandise sold at
outlets with an illusory and arbitrarily higher price from which a substantial
“discount” is then offered, in violation of New York’s GBL § 349 and Florida’s
Deceptive and Unfair Trade Practices Act (FDUTPA). Plaintiffs bought
merchandise at outlet stores; the products were marked with unique four-letter
identifiers and advertised with two prices: Tags on the goods themselves listed
a figure referred to as “Our Price,” while signs advertised steep discounts
ranging from twenty to seventy percent off; the two prices appeared again on
sales receipts along with a number reflecting the relevant percentage “off” the
product, and a final total amount of “savings.”
However, the goods at Kate Spade outlets were allegedly
fundamentally different than the goods at Kate Spade boutiques, and had never
been offered for sale at the “Our Price” figure either at Kate Spade boutiques
or at third-party retailers. These products were allegedly “of inferior
craftsmanship and utilized different hardware, materials, logos and product
demarcations.” Plaintiffs alleged that they wouldn’t have made their purchases,
or would’ve paid less than they did, but for their “mistaken belief” that they
were purchasing “boutique-quality merchandise at substantially reduced outlet
prices.”
The parties disputed whether Rule 9(b) applied, requiring
the claims to be pled with particularity. 
Courts have divided both for §349 and FDUTPA.  The court here reasoned that plaintiffs’
claims weren’t “premised on allegations of fraud,” as they didn’t claim actual
reliance or knowing intent to induce reliance. 
Thus, the court concluded that only Rule 8(a) applied.
The parties treated the statutes the same in other ways, and
the court analyzed the claims under both states’ laws together. The court
accepted one theory of deceptiveness and rejected another.  First, plaintiffs alleged that Kate Spade
“misrepresented the existence, nature and amount of price discounts” in their
outlet stores by “tout[ing] steep discounts” from former retail prices that
“did not constitute the prevailing market retail prices or values.”  Although this conduct is generally unlawful,
that didn’t mean that the plaintiffs had standing—both NY and Florida required
actual injury.  Allegations that a
plaintiff paid a price premium or didn’t receive the product for which she paid
would suffice, but under this theory neither occurred.  Deception itself is not injury.  Neither is pleading that one wouldn’t have
bought a product but for a deceptive practice. 
It wasn’t enough to allege conclusorily that the deception induced them
to pay more than they were subjectively willing to pay otherwise—that
disappointment isn’t cognizable.  In the
absence of allegations that, for example, Kate Spade sells the same products
for a lower price when they don’t have the allegedly deceptive “Our Price”
anchoring them, there was no connection between the alleged deception and the
injury.  (Query how the research about
anchoring and perceptions of value should play into this; the court accepts a
similar theory below when connected to quality, but it seems to me that the
same manipulation of perceptions of value could also lead people to pay more
than they’d otherwise pay under the pure “deceptively marketed” theory.)

Second, plaintiffs alleged that Kate Spade “touted its
artificially inflated former ‘our price’ price as a value anchor to create the
illusion of greater” quality, even though “the Outlet Merchandise was of
inferior quality.”  It was plausible that
the “Our Price” labels conveyed an implicit message of quality and that that
message is false or misleading.  By
alleging that the goods they purchased at the Kate Spade outlets were worth less
than than the “discounted” prices they paid, plaintiffs alleged a plausible,
and cognizable, injury. 

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FTC loses motion to dismiss because court doesn’t deal well with statistics

Posted on October 5, 2017 by rtushnet
FTC v. Quincy Bioscience Holding Co., 2017 WL 4382312, No. 17
Civ. 124 (S.D.N.Y. Sept. 28, 2017)
Lawyers and especially generalist-by-necessity judges need
to understand some statistical basics. When they don’t, they let bad science
shape consumers’ decisions and even law. 
The FTC and NY’s AG sought to hold Quincy liable for false
advertising.  Quincy sells a dietary
supplement known as Prevagen, whose active ingredient, apoaequorin, is a
dietary protein originally derived from the jellyfish Aequorea victoria. Defendants
claim that “Prevagen improves memory,” that it “has been clinically shown to
improve memory,” that “A landmark double-blind and placebo controlled trial
demonstrated Prevagen improved short-term memory, learning, and delayed recall
over 90 days,” that Prevagen “Helps with memory problems associated with
aging,” that “Prevagen is clinically shown to help with mild memory problems
associated with aging,” and that Prevagen can support “healthier brain
function, a sharper mind and clearer thinking.”
The primary support for these claims is the Madison Memory
Study, a randomized, double-blind, placebo-controlled study involving 218
adults between the ages of 40 and 91. Participants were assigned “AD8” scores
of 0 through 8, with an AD8 score of 2 used to differentiate between those who
are cognitively normal or very mildly impaired (with scores of 0-2) and those
with higher levels of impairment (with scores of 3-8). At intervals during the
90-day trial, participants were assessed on a variety of cognitive skills. “No
statistically significant results were observed for the study population as a
whole on any of the cognitive tasks.” 
However, test cell participants in the AD8 0-1 subgroup showed
statistically significant improvements over those who received the placebo in
three of the nine tasks (measuring memory, psychomotor function, and visual
learning), and showed a “trend toward significance” in two more tasks
(measuring verbal learning and executive function). Test cell participants in
the AD8 0-2 subgroup showed statistically significant improvements over those
who received the placebo in three of the nine tasks (measuring executive
function, attention, and visual learning), and showed a “trend toward
significance” in one more task (measuring memory). Thus, the study concluded,
“Prevagen demonstrated the ability to improve aspects of cognitive function in
older participants with either normal cognitive aging or very mild impairment,
as determined by AD8 screening.”
The FTC allegegd that “the researchers conducted more than
30 post hoc analyses of the results looking at data broken down by several
variations of smaller subgroups for each of the nine computerized cognitive
tasks,” and that post hoc subgroup analysis “greatly increases the probability
that the statistically significant improvements shown are by chance alone.” As
a result, “the few positive findings on isolated tasks for small subgroups of
the study population do not provide reliable evidence of a treatment
effect.”  Further, plaintiffs alleged
that Quincy’s theory was that apoaequorin enters the human brain to supplement
endogenous proteins that are lost during the natural process of aging, but
there are no studies showing that orally-administered apoaequorin can cross the
human blood-brain barrier. Instead, Quincy’s studies allegedly show that
orally-administered apoaequorin is rapidly digested in the stomach and broken
down into amino acids and small peptides like any other dietary protein.
In a footnote, the court said that these studies were “contradicted
by canine studies whose relevance plaintiffs challenge,” and also that the
FTC’s argument “loses force when applied to the results of the subgroup study
which make it clear that something
caused a statistically significant difference between those subjects who took
Prevagen and those given a placebo” (emphasis added).
And here, in the footnote, we have the core of the problem:
that “something” causing the statistically significant difference is, at a
minimum, plausibly random error.  When you analyze 20 different subgroups, and
one of them shows a statistically significant difference at the .05 confidence
level, that is exactly what you would expect
when the hypothesis that there is no effect is true: 19 out of 20 times, experimental
results from the sample match underlying truth, and 1 out of 20 times they
don’t.  That’s literally (numerically)
what .05 confidence means.  And it’s also
part of why post hoc subgrouping is so risky and potentially misleading: once
you slice and dice, you have decreased your sample size and increased the
chances of getting a false positive.  If
the only evidence you had were from the subgroup, then yes, the results support
the hypothesis of efficacy, but you can’t ignore that you also have the evidence from the other subgroups.  Moreover, a related reason why post hoc
subgrouping is dangerous is that it’s post hoc because you had no preexisting
reason to suspect a difference in reaction to the test substance.  Occam’s Razor works well here: the simplest
and most plausible explanation is that the subgrouped results, which aren’t
even for the same cognitive tasks across groups (thus making a posited
mechanism other than random error even harder to come up with), are positive as
a result of random error. This is why lawyers desperately need statistics
classes.
Xkcd has this on lock, as usual with math stuff:

Despite this, the court found that the FTC didn’t plausibly
allege that the representations at issue were false or unsubstantiated, given
that “the Madison Memory Study followed normal well-accepted procedures,
conducted a ‘gold standard’ double blind, placebo controlled human clinical
study using objective outcome measures of human cognitive function using 218
subjects.”  The parties agreed that it
failed to show a statistically significant improvement in the experimental
group over the placebo group as a whole. The court said “[t]hat confined
plaintiffs’ attack to the studies of subgroups,” but that’s an odd way to frame
it: the best evidence we have is that the claims that Quincy actually made, phrased
generally in the advertising, and not directed at people with low AD8, are
untrue.  The best evidence we have that
the claims Quincy made are substantiated comes from the subgrouping, but at a
minimum the claims would then not be properly qualified, and the better evidence is from the study as a whole.  Anyway, ignoring that, the court ruled that,
as to the subgroups, “the complaint fails to do more than point to possible
sources of error but cannot allege that any actual errors occurred.”  
The court thought that the FTC’s post hoc argument was
merely theoretical.  “They say that
findings based on post hoc exploratory analyses have an increased risk of false
positives, and increased probability of results altered by chance alone, but
neither explain the nature of such risks nor show that they affected the
subgroups performance in any way or registered any false positives.”  When I was in practice, we had a case where
we ended up having a math professor testify. He concededly had absolutely no
expertise in trademark law, or surveys, or drug errors, but he was really
helpful in explaining statistics, and why a supposedly positive result from a
“confusion analysis” didn’t mean that confusion was likely.  (Bayes’ theorem, so useful.)  Given the substantiation standard and the
other evidence from the study as a whole and the evidence about the blood/brain
barrier, it is at least plausible that the positive results were false positives.
Perhaps that could be refuted by replicating the study and seeing whether the
same subgroups and tasks show up as significant, as a start.  The court thought there was no “reason to
suspect that these risks are so large in the abstract that they prevent any use
of the subgroup concept, which is widely used in the interpretation of data in
the dietary supplement field.”  Even if
that’s true, (a) what is the court doing deciding this on a motion to dismiss?
And (b) post hoc subgrouping is a very different animal.  There’s a very good book about this, Richard
Harris’ Rigor Mortis, which I highly recommend to the interested. Still, “[a]ll
that is shown by the complaint is that there are possibilities that the study’s
results do not support its conclusion,” which isn’t enough for plausibility.

The court dismissed the coordinate state law claims to be
renewed (I hope) in state court, if not on appeal.

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Pleading facts indicating that ad claims are likely impossible suffices for plausibility

Posted on October 2, 2017 by rtushnet

Fan Fi International, Inc. v. Interlink Prods. Int’l, Inc., 2017 WL 4293144, No.16-cv-00661 (D. Nev.
Sept. 27, 2017)

After being sued in New Jersey, Fan Fi and ETL sued Interlink in Nevada for false advertising under the Lanham Act and deceptive trade practices and unfair competition under Nevada law, alleging that some of Interlink’s showerheads violated federal regulations because they permitted a flow of greater than 2.5 gallons per minute at 80 pounds per square inch when the flow restrictor was removed and that the flow restrictors could be removed with less than eight pounds of force.

False advertising claims can’t be based on unsettled regulatory provisions. The court found that the force test regulation was ambiguous.  The Department of Energy itself—the promulgating agency—expressly stated in the Federal Register that the meaning was so unclear that DOE had yet to establish a test method to determine whether a shower head satisfies the test. Though the 8-pound requirement is clear, the method by which resistance to removal was to be tested was unclear (e.g., what angle should the force be applied from).

Fan Fi previously alleged that Interlink advertised a 100,000-hour lifespan, exceeding typical industry claims of 25,000-to-50,000 hours, and argued falsity because this claim would take 11 ½ years to substantiate and unidentified consumers had complained that the LEDs failed in as little as two weeks. The court previously dismissed, with leave to amend, reasoning that a claim of product life could be based on a reasonable estimate, and that isolated instances of product failure did not show falsity. To plead falsity required something objective, “e.g., a mechanical comparison of Defendant’s LED system with an LED system of known lifespan” or the like.  Fan Fi now alleged that another entity tested one of the showerheads, finding a lifetime of 199 hours.  The allegations continued that the LED system comprised a motor that generates power to the LED light from the movement of water through the showerhead, and that this motor lasts for several hundred or several thousand hours, meaning that 100,000 hours wouldn’t be possible for the system.  Interlink argued that there was no indication of expert testing or testing of more than one unit, but that didn’t matter at the pleading stage, where plausibility could be achieved by alleging testing and an explanation of mechanical characteristics that made the ad claims likely impossible.

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“information and belief” isn’t enough to allege competitive injury in false advertising case

Posted on October 2, 2017 by rtushnet
Brickstructures, Inc. v. Coaster Dynamix, Inc., 2017 WL
4310671, No. 16 CV 10969 (N.D. Ill. Sept. 28, 2017)
Brickstructures, a LEGO-structure-creating business, sued
Coaster for breach of contract, breach of fiduciary duty, and false advertising
under the Lanham Act. Given that the complaint’s allegations of diversity
jurisdiction were insufficient, the court looked at the Lanham Act claims.  Brickstructures’ founder conceived of the
idea of a brick-based roller coaster many years ago. He began by adapting a
piece from a model roller coaster kit sold by Coaster, which used glue and not
LEGOs, then reached out to Coaster to propose a possible partnership. The
parties agreed to collaborate and their joint venture began a small production
run of a brick-based roller coaster. After a thousand kits were made and sold,
Brickstructures alleged, Coaster remitted far less than Brickstructures was
due, and then stopped communicating.  Coaster
then launched a successful Kickstarter campaign for a nearly identical toy.
The allegedly false claims were that Coaster’s solo kit, the
Cyclone, was the first commercially available kit combining the leading block system
with the Coaster Dynamix track system, that it was the first brick-based roller
coaster of its kind and the first commercially available brick compatible
roller coaster construction toy, and that it was created by the Coaster Dynamix
team.

It didn’t matter that the parties weren’t direct
competitors, because of Lexmark.  However, what must be pleaded (and proven) is
that plaintiff suffered an injury to its sales or business reputation, and the
allegations of injury, all stated on information and belief, were too
conclusory and superficial to sustain this complaint under Twiqbal. “[W]here something is alleged which should be within a
plaintiff’s personal knowledge, an information and belief allegation thrusts
the complaint into the realm of speculation.” Reputational injury wasn’t outside
Brickstructures’ knowledge.  And without
an adequate allegation of injury, there was an Article III problem.  (Brickstructures definitely alleged a
contract-based injury, but it needed a Lanham Act-based one.) 

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Are Crocs’ uniqueness claims a crock?

Posted on October 2, 2017 by rtushnet
Crocs, Inc. v. Effervescent, Inc., No. 06-cv-00605, 2017 WL
4286148 (D. Colo. Sept. 25, 2017)
Crocs makes molded clogs, and Dawgs is a competitor. Allegedly,
“[e]ach and every functional feature disclosed in the [’858] patent
application, except the heel strap, already existed in the Battiston Molded
Clog,” while pivoting heel straps also existed and were sold attached to molded
clogs, and these features were also disclosed in an Italian patent granted in
2002.  Nonetheless, in 2006, the PTO also
issued a design patent, which “contains diagrams of the base shoe that are
substantially similar to the diagrams that were created by Ettore Battiston in
2000 and assigned from Battiston to [Foam Creations, Inc.], with a strap added
that serves a functional purpose and such as had previously existed for many
years on a wide variety of footwear, including clogs.”  Thus the patent allegedly lacked both novelty
and appropriate inventorship. Crocs allegedly failed to get patents similar to
the ’858 and ‘789 patents outside the United States because of the “well-known
existence of prior sales, the widely-recognized existence of invalidating prior
art, and the established identity of the true and proper inventorship and
origin of the shoe.”
After the ‘789 patent issued, Crocs filed a complaint with
the ITC against various respondents, alleging infringement. While ITC initially
found no infringement of the ‘789 patent and that the ’858 patent was invalid
as obvious in view of prior art, the Federal Circuit reversed on the latter
issue and remanded. Crocs allegedly acted in the ITC proceedings “knowing that
these patents were invalid and unenforceable,” and also filed a 2006 lawsuit
alleging patent infringement.  Dawgs was
added to the case in 2012, and argued that the litigation was objectively
baseless in light of the unenforceability of the patents and because, by the
time Crocs filed its amended complaint adding Dawgs, it “knew or should have
known” that the Battiston patent “rendered the claims of at least the ’858 patent”
invalid.
In 2012, another Crocs opponent filed an application for
inter partes reexamination of the ’858 patent, and, allegedly in retaliation,
Crocs sued CVS, which sold Dawgs products. Dawgs filed an application for inter
partes reexamination with the PTO of the ‘789 patent. In 2016, the PTO rejected
the sole claim of the ‘789 patent as unpatentable and closed the reexamination
prosecution related to that patent.
Dawgs argued that Crocs’ acts violated antitrust law and
that Crocs engaged in false advertising. The individual named defendants
allegedly “directed, participated in, sanctioned, ratified, or acquiesced” in
the decision to sue Dawgs and to continue the 2006 lawsuit through the present.
The court found that the court had personal jurisdiction
over the individual defendants, though they reside outside Colorado.  The fact that Crocs was headquartered in
Colorado and conducts business in the forum wasn’t relevant to the minimum
contacts analysis, since “each defendant’s contacts with the forum State must
be assessed individually.” However, “the act of authorizing and directing a
lawsuit [may] be enough to establish jurisdiction over officers of a
corporation.” As the Tenth Circuit has noted, “[i]t is scarcely unfair to make
those who have initiated a lawsuit in a particular state undergo suit in that
state to determine whether the lawsuit was tortious.”
The antitrust claims failed. 
 Defendants were immune from suit
for seeking and enforcing Crocs’ patents. The other antitrust claims failed
because it’s basically impossible to plead successful antitrust claims.  So too with intentional interference with
business advantage. 
False advertising claims, however, survived.  These were based on claims that Crocs misled
the public and consumers by claiming that Crocs were made of” an exclusive and
proprietary closed-cell resin that they call ‘Croslite.’”  “Croslite” is in fact ethyl vinyl acetate,
used by footwear companies around the world, including Dawgs. Crocs’
promotional materials refer to “our patented CrosliteTM material” and “our
proprietary CrosliteTM material,” and claim that Croslite is a “revolutionary
technology.” These claims allegedly misled consumers into believing that Crocs
uses a different material from competitors and that Crocs owns the rights to
such material, so that consumers mistakenly believe that Dawgs are “made of
inferior material.”

Defendants argued that Dawgs didn’t allege that each
individual defendant made a false statement of fact.  “The statute itself does not insulate
individuals from liability who authorize the use of false statements in
commerce, and defendants cite no authority barring Lanham Act liability where a
defendant approves promotional statements that he or she knows are false.”  Also, Dawgs properly alleged standing as a competitor
under Lexmark. Its alleged injuries
“flow[ ] directly from the deception” caused by Crocs’ advertising. 

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Reasonable consumers needn’t expect individual products to differ from overall brand recommended by experts

Posted on September 28, 2017 by rtushnet
Eidelman v. Sun Prods. Corp., No. 16-cv-3914, 2017 WL
4277187 (S.D.N.Y. Sept. 25, 2017)
Eidelman allegedly bought Sun Product’s “237-fl oz. bottle
of ALL PLUS + FREE CLEAR … liquid detergent” based on its label that it was “from
the #1 Detergent Brand Recommended by Dermatologists for Sensitive Skin.”  But he discovered that this particular
product wasn’t recommended, and sued under New York law.  He alleged that the words “from the” were presented
in an “excessively small” font size, as compared to the remainder of the text,
and the words “recommended by dermatologists” were in bold, misleading consumers to
believe that the product itself was the “#1” detergent recommended by
dermatologists for sensitive skin, when it wasn’t.  Eidelman also alleged that a reasonable
consumer would presume that if the product was “from the #1” recommended brand
for sensitive skin, this should include the detergent contained in the labeled
bottle.

from the website

on the product

Sun allegedly makes a standard bottle for an alternate
detergent which has a label that states that it is “#1 recommended by
Dermatologist, Allergists [and] Pediatricians for Sensitive Skin,” without the “from
the” qualifier. Given the similarities between the bottles, at the time of
product choice and purchase, consumers would allegedly be misled into believing
that both detergents are the most highly recommended by dermatologists for
those with sensitive skin types. Eidelman also alleged that the product he
bought contained a “number of known skin irritants,” but that the ingredients
for the Detergent are not listed on the bottle, nor easily accessible online.
 

Another product, slightly different label
The court found that Eidelman stated a claim under NY GBL §§
349 and 350.  Defendants argued that the
claim was limited to the “brand,” and that a “reasonable consumer acting
reasonably under the circumstances understands what it means for doctors to
recommend a ‘brand’ as opposed to a particular product.” Even assuming the
entire text of the label was fully visible and easily read, the court refused
to conclude as a matter of law that no reasonable consumer could be misled—the claims
weren’t “patently implausible” or unrealistic.
Eidelman also alleged negligent misrepresentation, which
requires “(1) the defendant had a duty, as a result of a special relationship,
to give correct information; (2) the defendant made a false representation that
he or she should have known was incorrect; (3) the information supplied in the
representation was known by the defendant to be desired by the plaintiff for a
serious purpose; (4) the plaintiff intended to rely and act upon it; and (5)
the plaintiff reasonably relied on it to his or her detriment.” Defendants
challenged whether a special relationship existed.  “[L]iability in the commercial context is
‘imposed only on those persons who possess unique or specialized expertise, or
who are in a special position of confidence and trust with the injured party
such that reliance on the negligent misrepresentation is justified.’ ” Eidelman
argued that Sun’s claim on its website to have “clinical proof” of the products’
benefit and mild effects on skin satisfied his burden. And the label claims
that it’s from the “#1” brand recommended by dermatologists for sensitive skin.  These claims weren’t as extensive, in volume
and substance, as they were in other cases where a seller’s claims to special
expertise were enough to create a special relationship.  Eidelman didn’t overcome the presumption that
advertisements are generally insufficient to establish such a relationship.
An unjust enrichment claim did survive, even though defendants
argued that Costco couldn’t be held liable because there was no allegation that
it actually participated in misleading activities.  Costco as retailer allegedly received a price
premium from selling the falsely labeled product, which was enough at this
stage.

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Errant earrings: (c) but not trade dress success likely, still no irreparable harm

Posted on September 26, 2017 by rtushnet
Ear Charms, Inc. v. Bling Jewelry, Inc., 2017 WL 2957796,
No. CV 16-02091 (C.D. Cal. Apr. 11, 2017)
Sandra Callisto designed a “stylish alternative to pierced
earrings” for Ear Charms, specifically “wave” earrings, which allegedly bore “a
unique and distinctive trade dress in the overall design of the product” consisting
of “four curls, bent in gentle turns that roll around the perimeter of the ear,
each widening to greater degrees until flattening out— like a wave rolling onto
land.”  Ear Charms registered copyrights
in the wave earrings.  Bling allegedly
sold copies smaller in size, scale, and weight than those of Ear Charms, which Ear
Charms alleged showed that defendants created molds and stamping dies from its
products. Defendants had also been making wholesale purchases of Ear Charm
products.
 

registered and allegedly infringing designs

Defendants didn’t challenge the validity of the copyrights,
and the court found access plus virtual identicality, leading to likely success
on the merits of the copyright claim. 
(As to the designs for which applications were merely pending, there
seems to me to be a Kalpakian problem
for some—how do you expect a starfish ear wrap to look?  As a dedicated Etsy browser, I think some,
though not all, of these are pretty much the basic idea of an X ear wrap.  Also, applying for one registration for a
silver-plated version of a charm and one for a gold-plated version seems to
miss the point of the copyright system.)
 

registration pending designs and alleged copies

Trade dress infringement: Ear Charms alleged inherent
distinctiveness of its “wave” trade dress, but Walmart says no go.  In
showing secondary meaning, Ear Charms relied on its founder’s declaration,
which averred that Ear Charms had been sold since 1982 and “state[d] in very
general terms that in thirty-five years the public has come to recognize
earrings bearing the Product Trade Dress and associate those products with high
quality and conformity to Plaintiff’s specifications and that the Product Trade
Dress has established strong secondary meaning and extensive goodwill.” Such a
conclusory declaration was insufficient to show likely success.  Ear Charms argued that intentional copying
shifted the burden to the defendant to show lack of secondary meaning, but the
Ninth Circuit disagrees, given that “[c]ompetitors may intentionally copy
product features for a variety of reasons. They may, for example, choose to
copy wholly functional features that they perceive as lacking any secondary
meaning because of those features’ intrinsic economic benefits.”
Unfair competition/misleading advertising under the
UCL:  Ear Charms suggested that the
relevant wrong here was conversion, but such a claim would be preempted by the
Copyright Act given that defendants lawfully bought Ear Charms products.
Likewise, the misleading advertising claim fell with the trade dress claim.

Irreparable harm: there’s no presumption of such harm in
copyright cases after eBay. The conclusory
claim that defendants’ solicitation of Ear Charms customers “ha[s], and unless
enjoined will, detrimentally effect [sic] Plaintiff’s overall ability to
control the use of [its intellectual property], thereby causing injury to
Plaintiff,” and the claim that Ear Charms “suffered lost profits and lost
customer goodwill” were insufficient.  Ear
Charms argued that defendants’ poor quality products would harm Ear Charms’
reputation, but lost goodwill/reputation claims “must be supported by
sufficient evidence demonstrating that such loss is likely,” and Ear Charms
lacked evidence. 

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Response to Tim Wu’s piece on First Amendment obsolescence

Posted on September 26, 2017 by rtushnet

Not Waving but Drowning: Saving the Audience from the Floods. A response to Tim Wu’s essay “Is the First Amendment Obsolete?”

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Harvard JOLT seeks submissions

Posted on September 26, 2017 by rtushnet
The Harvard Journal of Law and Technology is one of the
leading journals covering the ever-developing interaction between law and
technology. JOLT Digest is the Journal’s online-only companion, providing
timely updates and new perspectives on recent developments in technology law,
touching on topics such as privacy, security, AI, IP, and free speech.
Currently offering exclusively student writing opportunities, JOLT Digest is
launching a new program for professors, practitioners, and non-lawyers to
contribute: Digest Commentary. JOLT Digest is seeking inaugural Commentary
authors.

Commentary will host primarily three types of writings:
opinions, primers, and responses to JOLT publications. They should be
approximately 2,000 words in length. Comments will be accepted on a rolling
basis, and JOLT Digest anticipates a 2-week window between submitting a
complete draft and publication. For more information on Digest Commentary,
please review our Commentator’s Guide. Please send any questions or submit an
idea or a completed draft for consideration to Filippo A. Raso, JOLT Digest’s
Executive Editor, at joltdigest@mail.law.harvard.edu.

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Brief on TM issues in ASTM v. Public Resource

Posted on September 26, 2017 by rtushnet

Mark McKenna and I, with other trademark professors, have written a brief in the ASTM case.  Thanks to Sam Bagenstos for last-minute filing assistance.

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