Trademark question of the day

Posted on June 2, 2016 by rtushnet

And given the extent of protection for characters, possibly a copyright question as well: is the following pajama set, seen on vacation, infringing?

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“purest” is puffery and Himala- is too geographically descriptive to cause confusion

Posted on June 2, 2016 by rtushnet

Sustainable Sourcing, LLC v. Brandstorm, Inc., 2016 WL
3064055, No. 12-cv-30093 (D. Mass. May 31, 2016)

 
The parties compete to sell Himalayan pink salt.  Sustainable Sourcing created an image showing
a box of its pink salt, surrounded by bowls of berries and salt.  “One of Defendants’ employees (not surprisingly,
no longer employed by them) foolishly copied the Image, mostly leaving the
photograph unchanged, but replacing Plaintiff’s product with a depiction of
Defendants’ product (the “Altered Image”). Defendants thereafter used the
Altered Image in their online and print catalogues.”  After this was discovered, Sustainable
Sourcing registered the image and sued; the court allowed further discovery to
figure out if there were any damages.

 

Sustainable Sourcing alleged that Brandstorm falsely claimed
that their Pakistani salt was from Tibet; the court denied summary judgment,
finding material issues of fact remained. 
Brandstorm counterclaimed, asserting trademark and false advertising
related claims.  Brandstorm uses the
brand name “HIMALANIA,” and have a registration for the word, but it only
covers fruits and snacks classes (International Classes 29, 31, and 32). Sustainable
Sourcing sells products under the brand name “HimalaSalt,” but without a
trademark registration. 

Sustainable Sourcing argued laches, since Brandstorm knew
since 2006, when Sustainable Sourcing entered the pink salt market, that its HimalaSalt
was competing with HIMALANIA, but didn’t pursue legal action until 2014.  The record didn’t justify summary judgment on
laches, given Brandstorm’s argument that it was justified in taking a
wait-and-see approach to assess market conditions before suing.
 

The court found confusion unlikely, given the geographic
descriptiveness of “Himala.”  “[B]ecause
the only overlap between the parties’ marks is the geographical reference to
the Himalayan mountains, this common feature is not likely to lead to
confusion. Indeed, the summary judgment record contains evidence of numerous
third parties that have registered trademarks covering products with the common
root ‘Himala,’ making it even less likely that there will be confusion.”  Also, the court, without explaining who
actually had use-based priority in the salt market, reasoned that the Brandstorm
registration didn’t protect salt.  Summary
judgment against Brandstorm for the word-based claim, but trade
dress/packaging-based claims survived because of disputed issues about the
overall commercial image of the products, “or whether recent changes to
Defendants’ packaging amount to abandonment of the registered mark,” an issue
for the jury.

Sustainable Sourcing did win summary judgment on the false
advertising counterclaim based on its tagline, “the purest salt on earth,” which
was mere puffery.

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Music Licensing conference at NYU, June 17

Posted on June 1, 2016 by rtushnet
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FTC workshop on disclosures, Sept. 15

Posted on June 1, 2016 by rtushnet
SEP 15, 2016
CONSTITUTION CENTER
400 7th St SW, Washington, DC 20024
 
EVENT DESCRIPTION
The Federal Trade Commission will host a public workshop in
Washington, DC on September 15, 2016 to examine the testing and evaluation of
disclosures that companies make to consumers about advertising claims, privacy
practices, and other information.
 
Effective disclosures are critical in helping consumers make
informed decisions in the marketplace. 
 
Many advertisers have used disclosures in an attempt to
prevent their advertisements from being deceptive. Disclosures must be crafted
with care both with respect to their language and presentation. Disclosures
used in the marketplace are sometimes ineffective.  Commission staff has recommended that
disclosures be tested for effectiveness.
Disclosures are also challenging in the privacy arena,
whether disclosing to consumers that their physical location or online
interactions are being tracked, or explaining privacy practices when consumers
sign up for a service. Privacy policies are often long and difficult to
comprehend and privacy-related icons may fail to communicate information
meaningfully to consumers. Furthermore, the accompanying mechanisms for
consumers to provide informed consent or exercise choices about the use of
their data may also be confusing. The Commission has long encouraged the
development and testing of shorter, clearer, easier-to-use privacy disclosures
and consent mechanisms.
 
The FTC has issued guides to help businesses avoid deceptive
claims, such as guidance related to endorsements, environmental claims, fuel
economy advertising, and the jewelry industry. Often the guidance presents
options for qualifying claims to avoid deception. In developing guides, the
Commission has sometimes relied on consumer research to gauge whether specific
disclosures can be used to qualify otherwise misleading claims.
 
The FTC has a long commitment to understanding and testing
the effectiveness of consumer disclosure, and is especially interested in
learning about the costs and benefits of disclosure testing methods in the
digital age.  A number of factors impact
the effectiveness of disclosures, including whether they contain the most
essential information and consumers notice them, direct their attention towards
them, comprehend them, and are able to use that information in their decision
making.  Some testing methods are more
appropriate than others for evaluating these factors.
 
The workshop is aimed at encouraging and improving the
evaluation and testing of disclosures by industry, academics, and the FTC.  The FTC’s workshop will explore how to test
the effectiveness of these disclosures to ensure consumers notice them,
understand them and can use them in their decision-making.   It is intended to further the understanding
of testing and evaluation of both offline and online consumer disclosures,
including those delivered through icons, product labels, short text, long text,
audio or video messages, interactive tools, and other media. Topics may include
evaluation criteria, testing methodologies and best practices, case studies,
and lessons learned from such testing.
 
PROSPECTIVE PRESENTERS:
The FTC has set up an email box, disclosuretesting@ftc.gov
(link sends e-mail), for anyone interested in being a presenter at the
event.  Prospective presenters should
submit a statement detailing their expertise on testing and evaluating
disclosures directed to consumers, whether online, in traditional media, on
product labelling, or otherwise, and a description of what they would present.
We are interested in both previously published papers (please provide the
papers or links to where they are available online), as well as descriptions of
unpublished evaluations of disclosures. The deadline for submitting requests to
present is Friday, July 15, 2016.
 
The FTC also invites the public to submit comments in
connection with the workshop.
 
Interested parties may file a comment electronically at
http://ift.tt/1NJiJMu.
 
Alternatively, paper comments may be mailed to Federal Trade
Commission, Office of the Secretary, 600 Pennsylvania Avenue N.W., Suite
CC-5610 (Annex B), Washington, DC 20580, or they may be delivered to Federal
Trade Commission, Office of the Secretary, 400 7th Street SW, 5th Floor, Suite
5610 (Annex B), Washington, DC 20024. 
Please write “Disclosure Testing Workshop Project No. P 164503” on your
comment so that it will be readily identified with this workshop.
 
The public comment period will remain open until November 2,
2016. Comments will be posted on the workshop’s public webpage.

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Amicus in Lanham Act/commercial speech case

Posted on May 31, 2016 by rtushnet

Mark McKenna just filed this brief on behalf of law professors, including me, supporting a simple resolution of Tobinick v. Novella, which should be an easy case (and in easy cases it may be tempting to sweep too broadly).

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Throwback trade dress, Care Bears edition

Posted on May 27, 2016 by rtushnet

Newly added to my collection, the infringing Dan-Dee teddy with the functional tummy graphics:

American Greetings Corp. v. Dan­Dee Imports, Inc., 807 F. 2d 1136 (3d Cir. 1986)

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NPR Marketplace on Oracle v. Google

Posted on May 27, 2016 by rtushnet

I’m quoted in the story.

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Transformative work of the day, political edition

Posted on May 27, 2016 by rtushnet

Rebel Girl: this pro-Clinton mashup was initially subject to a DMCA claim, but seems to have survived.

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Techdirt on the MPAA v. the Writers Guild of America West on set-top boxes

Posted on May 26, 2016 by rtushnet

Mike Masnick has the story, and I’m just going to quote him (and WGAW):

Meanwhile, in what might seem like a surprising source, another group calling bullshit on the MPAA is the local Hollywood writer’s guild, the Writers Guild of America, West. Their full filing is totally worth reading. They basically make the exact point we’ve made for years: every time the MPAA fears some new innovation, it’s not just wrong, but it often misses how that new innovation actually helps Hollywood in addition to the public:

It is often the case that when new technology emerges incumbent providers make alarmist predictions about guaranteed harms resulting from these innovations. While some concerns may be reasonable, the overwhelming majority of outlined harms are never realized. As CBS Chairman and CEO Les Moonves said in 2015, “All these technology initiatives that supposedly were going to hurt us have actually helped us. SVOD has helped us. DVR has helped us. The ability to go online with our own content, CBS.com, and the trailing episodes – all have helped us.” With the entertainment industry currently dominated by a handful of companies that have never been more profitable, it is clear that new technology and forms of content distribution have helped, not hurt the industry. 

While new technology can create some business uncertainty, there is strong evidence that pro-consumer developments that make legal content more accessible to viewers benefits both consumers and content creators.

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Copyright Office NPRM indicaties desire to strip sites of 512(c) protection

Posted on May 25, 2016 by rtushnet

Eric Goldman explains here.  We already could tell that the Office was interested in shrinking the safe harbors; apparently the Office wants to do that in part by purging the list of registered DMCA agents every three years.  As someone who had the OTW’s initial registration bounced for not having a fax number (we … don’t have a fax machine?) (I used mine in the end), I have a bit of whiplash on the technical requirements side.  Per the NPRM, written comments are due June 24.

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