ISHTIP at Penn, part 1

Posted on July 22, 2015 by rtushnet
International Society for the History and Theory of Intellectual Property (ISHTIP) Program 2015
 
Center for Technology, Innovation, and Competition (Penn Law) and the Cinema Studies Program (Penn Arts and Sciences)
 
Early Career, Panel 1 | Peter Jaszi (American University), Moderator
 
Megan Rae Blakely (University of Glasgow) | Intellectual Property and Intangible Culture Heritage in Celtic-derived Cultures
 
Intangible side of IP: owning rights.  We think of developing countries as having culture and developed as having knowledge, but that is a false binary.  Intangible cultural heritage: there’s a quote saying the UK has none to protect. 
 
Tangification: the process of tangible propertization of ICH—ossified and stuck, prevented from evolving and being practiced. 
 
1970 World Heritage Convention: European focused, monuments etc. Berne/TRIPS: conventional IP.  2003 ICH Convention: response to 1970 convention, used language of safeguarding rather than propertizing and protecting.  2003 definition was very broad: practices, expressions, knowledge, skills, instruments, objects, artefacts, cultural spaces, etc. ICH is constantly recreated by the practicing community and must be allowed to evolve. Festivals, performing arts, social practices, etc. Would have to alter it to protect it with IP, which is our default way of protecting things.  US, UK and Ireland are not signatories to 2003 convention, which imposes obligation to list/index ICH; promote awareness, education, and int’l participation; urgent safeguarding of ICH at risk of dying out.
 
ICH provides identity and continuity; continuous recreation. Tangification comes out of IGH, with fixation and ossification and closed-list definitions. Tangification is prerequisite to propertization—necessary but not sufficient for propertization.  Likewise propertization is necessary but not sufficient for commodification, and commodification is necessary but not sufficient to become a commodity/lose cultural meaning.
 
Don’t need propertization even w/tangification and value. Tartan: repurposed to represent clans.  Now there’s a registry for tartan, run by gov’t, taken back from clans.  Wales: Eisteddfod, a language, dance, singing festival—Welsh was removed from courts in 1500s; not until last century was Welsh brought back into legal system and education. Ireland: tourism promotion—when does it become commercial cultural branding?  What it means to be Irish as a tourism/government priority as opposed to community practices of ICH.
 
Recognize power of legal categorization on diverse forms of ICH; create level playing field.
 
Fiona Macmillan: ICH is often understood as resistance to power; lists of ICH are almost entirely used by developing countries. There is often an interest in tourism.  As IP scholars, we always think of commodification through propertization.  But tourism is through another mechanism.
 
Xan Sarah Chacko (University of California, Davis) | Protective Pictures: The Role of the Image in Plant Patents
 
What counts as patentable material has changed with the law, science, and technology. Images have gone from color photos to electrophoresis images of specific gene markers that allegedly produce the result.  Tracks changes in illustration: shift from pure description to explication of the underlying innovation in the images. How do patent visuals fit into longer history of representation in scientific discourse?
 
1930 Plant Patent Act: 17 years of exclusivity for new varieties of asexually propagated plants. Images of plants provide proof of uniqueness: patentability is based on novelty; inventors didn’t have to show method of production, only the novel features. Examining procedure: They were supposed to be artistic/competent, not mechanical drawings, and faithfully represent the appearance of the plant and disclose its distinctive characteristics capable of visual description. Drawings strictly adhered to because they formed the claim.  Most plant patents in this period were roses: image was crucial to show novelty. US breeders created fewer new varieties after 1930 compared to before, looking at horticultural societies’ registration systems which were used to make priority claims. Rise of color photography: color had to be depicted if color was claimed as part of the plant.
 
1970: Plant Variety Protection Act: Visualization of disease resistance is shown by a table.  Visualization as comparison: shows size of seeds, for example.  Photograph takes on value, but not objectivity. Optical consistency alleviates the burden of objectivity; the main objective is to have matching, not naïve realism.
 
1980: Diamond v. Chakrabarty: Tomato plants exhibiting continuous light tolerance—method; plant; gene may all be controlled—genotypic information is part of the patent, showing sequences of genetic markers. New kinds of representation. But even in 2012, we have older forms of representation with images of a cherry including a cut-open cherry, calling back to the tradition of still lives.  Romantic reference? Most of the pages of the application for the cherry are filled w/DNA code.
 
Q: how were drawings used to establish scope of claim and full disclosure of the claim through the image?
 
A: In the first act, the disclosure is the image—even in the text, they can’t tell you how they produced this particular variety—it could have been found in a field.  1970s: post-genomic world it is the genes that are referenced, even if the attribute is color, height, etc. 
 
Silbey: what do the outtakes and drafts look like before the patent is filed?
 
Henrique Carvalho (Birkbeck, University of London) | Drahos’s Ontological Skepticism: Ontological skepticism = reluctance to believe in existence of IP objects.  Cariou v. Prince: most interesting part of litigation for him was Prince’s deposition, which at times read as an Abbott & Costello Who’s On First routine.  (Note that there are copyright claims around that routine!)  Prince claims it’s a painting, not a scanned photograph.  He painted the features “on” the photograph.  He rephotographed images: a “real” photograph, not an image I torn out of the magazine.  He claims it wasn’t a photo of a photo, but a photo of a page. Lawyer and artist use the same word in different senses.  Of course Prince is a prankster, but the gap between them is deeper.  Carve reality up differently.
 
Intangibles are abstract objects.  But they “exist.”  Hard to measure, control, evaluate—hard to believe in?  Peter Drahos was not the first to express skepticism, but did so in articulate and detailed way.  Stakes his skepticism in Philosophy of IP by explaining that property rights entail relations between two people and between a person and an object. But in IP abstract objects are a convenient legal fiction, expanding the commodity production possibilities of capitalism.
 
Drahos asks: by recognizing IP rights, is the law forced to recognize “spooky” entities, universals, Plato’s eternal forms. Gives two alternatives: either only particulars exist and universals are just convenient fictions/mental projections (the Stoic alternative). Or abstract objects exist and aren’t reducible to particulars. 
 
Stoics: they would have us say that universals don’t exist but are still real/subsist in particulars. But that’s hard to understand.  This is a difficulty with the Stoic position. 
 
Type/token: artifacts could be tokens—pieces of paper marked with ink; while type is the abstact object, a particular novel. Two different concrete objects are still the “same novel.”  Nothing spooky about these types. If we say John and Paul are wearing the same tie, we don’t mean that a piece of cloth holds their necks together. We don’t need to believe there is a platonic tie somewhere in another realm of existence to make the type/token distinction.  Types don’t have a specific spatial/temporal location; but they don’t have to be “elsewhere.”  They have multiple tokens/are repeatable. And they may have some spatiotemporal properties: date of creation.  Types can share material predicates w/their tokens, such as “being made of silk.”
 
Drahos dismisses a philosophical approach because it doesn’t connect existential concerns over abstract objects to questions about power.  Drahos implicitly still sides w/the realists/denies abstract objects exist.  Suspension of disbelief has material consequences in decisions on infringement, in which judges/YouTube algorithms are called on to determine whether an item is plaintiff’s work.  Abstract objects serve as the basis of identity judgments.  Using fictional entities = judgments are actually pragmatic/based on convention. But abstractness comes in degrees: it could be not-concrete, or it could be vague.  Identity criteria used in making judgments are key.  Drahos says: Identity conditions of abstract objects are themselves matters of conventional judgments.  But: We need not deny the existence of abstract objects, nor to say that without law all there is are physical objects, to reach this conclusion.
 
Mike Madison: what seems to matter in your framing is pragmatics of legal constructions of objects w/in legal systems v. constructions of objects in art worlds, tech worlds, etc. That’s where the interesting stuff will be—Kevin Collins has written about the type/token distinction. Practical payoff will be most interesting/usable for this community of scholars.
 
Omri Rachum-Twaig (Tel Aviv University) | Genre Theory and Copyright Law: The Common Building Blocks of Creativity
 
Genre as speech act: semantics, syntax, and pragmatics: a system of rules underlying creative activity or works of authorship. Institutional approach to genre: shared social conventions. Analogical approach: genre as biological species or family resemblance—can evolve over time.
 
Genre theory refers to common building blocks of text (including music, visual arts, any type of meaningful object); genre theory sees these building blocks as basis for creative activity. One perspective: author’s—give the necessary tools and constraints for authors to create to begin with. (Cognitive psych understanding of genre.) Also as meaning making tool from audience’s perspective. Allows audience to extract meaning out of creative products and to attach value ot them.  Both ideas and expression can be building blocks for development and creation of genres.
 
Case study: detective story. Edgar Allan Poe v. Arthur Conan Doyle. Very well documented development of genre, still existing and growing; has two central and dominant “first” authors who are chronologically proximate. Similarities b/t Poe’s Dupin & Doyle’s Holmes: dualities—detective and companion; detective combines imagination of poet/mind of mathematician; no interest in intimate relationships; heavy pipe smoker, enjoys long strolls at night, connected to prefect of police; uses logical deduction. Similarities exist both at high and low levels of abstraction—the Locked Room Mystery appears in both detectives’ stories: Murders in the Rue Morgue: murder in upper floor apartment, locked room; window shut closed after murderer fled; in Poe the murderer is orangutan from Southeast Asia accompanied by a French sailor and in Doyle it’s an Aboriginal “little black man” from Southeast Asia accompanied by a former British Marine soldier. Given today’s copyright, he thinks this would be copyright infringement. Cf. Salinger.  (I don’t agree—if you look at all the movie cases, these similarities are unlikely to be enough, though it might make it past a motion to dismiss.)
 
Implications: mismatch b/t legal norm and creativity—genre theory supports the use of expression as common building blocks.  Help rethink normative justification for derivative works; challenges conceptual separation between derivative works and reproductions.  (I think we should reserve derivative works for translation into new mediums, for much this reason.)
 
Q: market dynamics: massive increase in pulp detective novels, for example. The sensation novel is a branch.  Very popular translated (French) author (sp?) into English.  There’s a question of how publishers work, how these works are being marketed, how the contracts are worded.  Underpinning the typology is economic relations that produce/reproduce genre characteristics. Copyright suppresses that discussion through fetishization of originality.
 
A: Agrees there were precedents but Poe and Doyle were well known and very close in their stories.  Looking for inner reasons/processes of author when s/he chooses, consciously or unconsciously, to use specific types of previous knowledge whether idea or expression.  (But that’s not distinct from economics.  Dickens got paid by the word; Dumas by the line—and now you know something about why their distinctive styles are the way they are.  Today, publishers happily tell their good authors which types of books are selling and get them to write those types of books—I know of many examples.)
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Uber’s safety claims not all puffery

Posted on July 22, 2015 by rtushnet
L.A. Taxi Cooperative, Inc. v. Uber Technologies, Inc., —
F. Supp. 3d —-, 2015 WL 4397706, No. 15-cv-01257 (N.D. Cal. Jul. 17, 2015)
 
Uber makes various safety-related claims, such as its
website’s claims to offer the “SAFEST RIDES ON THE ROAD” and that Uber is
“GOING THE DISTANCE TO PUT PEOPLE FIRST.”  It continues: “Wherever you are around the
world, Uber is committed to connecting you to the safest ride on the road. That
means setting the strictest safety standards possible, then working hard to
improve them every day.” It promises “SAFE PICKUPS” with “No more waiting alone
on a dark street hoping you can hail a taxi.”  Uber’s blog contains similar statements, such
as one issued after an Uber driver struck and killed a six-year old girl: “We
are committed to improving the already best in class safety and accountability
of the Uber platform, for both riders and drivers.”
 
After Uber customers complete a ride, they get an email with
a bill and fare breakdown, including a $1.00 “Safe Rides Fee.” Customers who
click on a question mark next to those words get a page that says “From the
beginning, we’ve always been committed to connecting you with the safest rides
on the road. The Safe Rides fee is a fee added to uberX fares on behalf of
drivers (who may pay this fee to Uber) in cities with uberX ridesharing. This
Safe Rides Fee supports continued efforts to ensure the safest possible
platform for Uber riders and drivers…. For complete pricing transparency,
you’ll see this as a separate line item on every uberX receipt.”
 
Uber’s advertising emphasizes the rigor of its background
checks for drivers. The website promises “BACKGROUND CHECKS YOU CAN TRUST,” and
says that “Every ridesharing and livery driver is thoroughly screened through a
rigorous process we’ve developed using constantly improving standards….”  which used to be “industry-leading standards.”
The blog elaborates on this procedure, claiming that it’s more rigorous than
taxi background checks.
 
Uber has also made statements to the media about Uber’s
superior safety, such as that quoted in a news report: “We’re confident that
every ride on the Uber platform is safer than a taxi.”
 
Plaintiffs alleged that Uber’s representations were false
and misleading because their taxi services were safer than Uber’s.  First, plaintiffs’ drivers used Live Scan,
which is “considered the gold standard of background checks.” “Live Scan uses
fingerprint identification; analyzes information in Department of Justice and
Federal Bureau of Investigation systems that have no time-based or
jurisdictional limitations; and continuously refreshes the results of a
person’s background check. By contrast, Uber’s background checks, which are run
by a private third-party company, do not involve fingerprinting; have
jurisdictional and time-based limits; and are not automatically updated to
reflect new information.”

Second, Plaintiffs’ drivers, unlike Uber drivers, were allegedly required to
take a driver safety course and/or other safety training and to pass a written
examination before transporting passengers. Third, Plaintiffs’ vehicle safety
inspections and maintenance standards were allegedly more stringent than those
required by Uber. Fourth, unlike Uber drivers, plaintiffs’ drivers weren’t
allowed to drive for more than one company, so they were less likely to be
distracted by managing multiple platforms for ride requests, often using
multiple cellphones.
 
Plaintiffs sued for violation of the Lanham Act, the
California FAL, and the California UCL.
 
Uber argued that all the challenged statements were puffery;
the court only agreed in part.
 
The claim that Uber is “GOING THE DISTANCE TO PUT PEOPLE
FIRST” was clearly unmeasurable puffery, as was “BACKGROUND CHECKS YOU CAN
TRUST.” But other alleged statements were more specific, such as that Uber was
“setting the strictest safety standards possible,” that its safety was “already
best in class,” and that its “three-step screening” background check procedure,
which includes “county, federal and multi-state checks,” adhered to a
“comprehensive and new industry standard.” Uber’s statements were also
explicitly comparative, e.g., “often more rigorous than what is required to
become a taxi driver.” References to the “strictest safety standards” and
explicit comparisons with competitor taxi services reinforced the impression
that Uber’s statements were grounded in fact.
 
Uber argued that certain statements were only “aspirational”
and thus puffery, e.g., “We are committed to improving the already best in
class safety and accountability of the Uber platform, for both riders and drivers.”
 Aspirational statements aren’t
categorically immune for liability—the simple addition of phrases such as “Uber
is committed to …,” “Uber works hard to …,” or “We’re doing everything we
can to …” to an advertising statement is not a liability shield. The
challenged statements didn’t just say that Uber prioritizes safety, but rather
included assertions that a reasonable consumer might rely on as based in fact,
such as “already best in class safety and accountability.”
 
Uber argued that some of the challenged statements weren’t
commercial advertising or promotion, and the court agreed. The court used the
classic Gordon & Breach test; any
changes mandated by Lexmark aren’t
important here, where the parties directly compete. Statements to the media
went beyond proposing a commercial transaction: “Statements made to the media
and published in a journalist’s news article concerning a matter of public
importance are not commercial speech, and are protected under the First
Amendment.” The articles cited in the complaint discussed whether Uber was safe
and included responses from Uber representatives; they were “inextricably
intertwined” with the reporters’ coverage of a matter of public concern and
thus not actionable under the Lanham Act. 
(The parties agreed that the California claims stood or fell with the
Lanham Act claims, which is a concession that plaintiffs in particular should
be more hesitant to make, especially given the “sufficiently disseminated”
constraint on the Lanham Act’s coverage of “advertising or promotion.”)
 
Plaintiffs’ citation to Kasky
v. Nike, 27 Cal.4th 939 (2002), and SKEDCO, Inc. v. ARC Prods., LLC, No.
13–cv–00696–HA, 2014 WL 2465577 (D. Or. June 2, 2014), proved insufficient. Kasky “involved statements written by
the defendant and distributed as press releases and letters to the editor,
rather than statements made in response to journalists’ inquiries and published
in independent news articles.”  SKEDCO involved a published interview
with a company executive in a specialized magazine targeted toward the
business’s primary customer and placed in close proximity to a paid
advertisement. By contrast, the challenged statements here were “one part of
longer, independent articles that are largely critical of Uber.”
 
However, the court found that statements made about Uber’s
“Safe Rides Fee” on users’ emailed receipts were commercial speech. Uber argued
that, because they came after completed rides, the statements related to
completed transactions, rather than proposing a transaction or influencing
consumers to purchase Uber’s services in the future.  However, it was plausible that passengers who
read the information about the “Safe Rides Fee” were influenced to use the
service again. The explanation of the “Safe Rides Fee” promised “continued
efforts to ensure the safest possible platform,” and explained that “you’ll see
this as a separate line item on every uberX receipt,” demonstrating Uber’s
expectation that customers would ride again. After all, “[t]he business press
has frequently observed that all communications between a successful firm and
its customers, including post-sale communications, should encourage consumer
loyalty and repeat business.”
 
The court then found that plaintiffs lacked standing under
the UCL, since their claims were fraud-based and only the person who relied on
the fraudulent statement has UCL standing, according to the majority of cases.  Moreover, plaintiffs lacked valid restitution
claims because they had no direct or vested ownership interest in money
transferred to Uber. Plaintiffs failed to allege a “confirmed” contractual
relationship with any of Uber’s customers; nonrestitutionary disgorgement was
not available under the label “restitution.”

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BBB claims about its own ratings process not protected by First Amendment

Posted on July 22, 2015 by rtushnet
Caribbean Cruise Line, Inc. v. Better Business Bureau of
Palm Beach County, Inc., No. 4D13-3916 (Fla. Ct. App. June 3, 2015)

Expect more detailed analysis from Ann Lipton soon.
 
CC received an F grade from BBB and sued for defamation and
violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).  The trial court granted BBB’s motion to
dismiss, and the court of appeals reversed on the FDUTPA claim.
 
CC alleged that the BBB website was “often considered the
‘go-to’ source for consumers seeking to investigate businesses,” and that BBB
portrayed itself “as [an] unbiased, public-interest organization[], that the
consuming public relies on . . . in selecting businesses to utilize and
employ.”  For its FDUTPA claim, CC
alleged that BBB deceptively claimed to have an unbiased rating system and to
conduct an adequate investigation into the businesses for which it rates.  BBB allegedly falsely represented that it based
its grade on sixteen specifically-enumerated factors, but didn’t inform the
public that it partially relied on whether a business paid BBB to become
“accredited” in grading that business.
 
BBB argued that its statements were pure opinion protected
by the First Amendment.  The court of
appeals disagreed: the challenged statements were factual representations or
omissions—that BBB conducts an investigation into graded businesses; that BBB
used sixteen factors; and that paying BBB makes a difference to the grade.
 
In addition, the court of appeals held that a non-consumer
had standing to bring a FDUTPA claim.  Prior
to 2001 the relevant provision said that “[i]n any individual action brought by
a consumer who has suffered a loss as a result of a violation of this part,
such consumer may recover [enumerated items].” 
The legislature amended it to read: “In any action brought by a person
who has suffered a loss as a result of a violation of this part, such person
may recover [enumerated items].”  In
addition, the legislature amended a related section to change the definition of
“consumer” to include a “business” and “commercial entity.”  
 
Lower state court and federal district court cases were
divided in whether only consumers could be plaintiffs; the court of appeals
agreed that the 2001 amendment “served to broaden the reach of the statute so
that more than just consumers could avail themselves of the protection of this
statute.”  After all, courts presume that
the legislature intends to change the law when it amends a statute. “Therefore,
the legislative change regarding the claimant able to recover under FDUTPA from
a ‘consumer’ to a ‘person’ must be afforded significant meaning. This change
indicates that the legislature no longer intended FDUTPA to apply to only
consumers, but to other entities able to prove the remaining elements of the
claim as well.”

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Uber’s safety claims not all puffery

Posted on July 22, 2015 by rtushnet
L.A. Taxi Cooperative, Inc. v. Uber Technologies, Inc., — F. Supp. 3d —-, 2015 WL 4397706, No. 15-cv-01257 (N.D. Cal. Jul. 17, 2015)
 
Uber makes various safety-related claims, such as its website’s claims to offer the “SAFEST RIDES ON THE ROAD” and that Uber is “GOING THE DISTANCE TO PUT PEOPLE FIRST.”  It continues: “Wherever you are around the world, Uber is committed to connecting you to the safest ride on the road. That means setting the strictest safety standards possible, then working hard to improve them every day.” It promises “SAFE PICKUPS” with “No more waiting alone on a dark street hoping you can hail a taxi.”  Uber’s blog contains similar statements, such as one issued after an Uber driver struck and killed a six-year old girl: “We are committed to improving the already best in class safety and accountability of the Uber platform, for both riders and drivers.”
 
After Uber customers complete a ride, they get an email with a bill and fare breakdown, including a $1.00 “Safe Rides Fee.” Customers who click on a question mark next to those words get a page that says “From the beginning, we’ve always been committed to connecting you with the safest rides on the road. The Safe Rides fee is a fee added to uberX fares on behalf of drivers (who may pay this fee to Uber) in cities with uberX ridesharing. This Safe Rides Fee supports continued efforts to ensure the safest possible platform for Uber riders and drivers…. For complete pricing transparency, you’ll see this as a separate line item on every uberX receipt.”
 
Uber’s advertising emphasizes the rigor of its background checks for drivers. The website promises “BACKGROUND CHECKS YOU CAN TRUST,” and says that “Every ridesharing and livery driver is thoroughly screened through a rigorous process we’ve developed using constantly improving standards….”  which used to be “industry-leading standards.” The blog elaborates on this procedure, claiming that it’s more rigorous than taxi background checks.
 
Uber has also made statements to the media about Uber’s superior safety, such as that quoted in a news report: “We’re confident that every ride on the Uber platform is safer than a taxi.”
 
Plaintiffs alleged that Uber’s representations were false and misleading because their taxi services were safer than Uber’s.  First, plaintiffs’ drivers used Live Scan, which is “considered the gold standard of background checks.” “Live Scan uses fingerprint identification; analyzes information in Department of Justice and Federal Bureau of Investigation systems that have no time-based or jurisdictional limitations; and continuously refreshes the results of a person’s background check. By contrast, Uber’s background checks, which are run by a private third-party company, do not involve fingerprinting; have jurisdictional and time-based limits; and are not automatically updated to reflect new information.”
Second, Plaintiffs’ drivers, unlike Uber drivers, were allegedly required to take a driver safety course and/or other safety training and to pass a written examination before transporting passengers. Third, Plaintiffs’ vehicle safety inspections and maintenance standards were allegedly more stringent than those required by Uber. Fourth, unlike Uber drivers, plaintiffs’ drivers weren’t allowed to drive for more than one company, so they were less likely to be distracted by managing multiple platforms for ride requests, often using multiple cellphones.
 
Plaintiffs sued for violation of the Lanham Act, the California FAL, and the California UCL.
 
Uber argued that all the challenged statements were puffery; the court only agreed in part.
 
The claim that Uber is “GOING THE DISTANCE TO PUT PEOPLE FIRST” was clearly unmeasurable puffery, as was “BACKGROUND CHECKS YOU CAN TRUST.” But other alleged statements were more specific, such as that Uber was “setting the strictest safety standards possible,” that its safety was “already best in class,” and that its “three-step screening” background check procedure, which includes “county, federal and multi-state checks,” adhered to a “comprehensive and new industry standard.” Uber’s statements were also explicitly comparative, e.g., “often more rigorous than what is required to become a taxi driver.” References to the “strictest safety standards” and explicit comparisons with competitor taxi services reinforced the impression that Uber’s statements were grounded in fact.
 
Uber argued that certain statements were only “aspirational” and thus puffery, e.g., “We are committed to improving the already best in class safety and accountability of the Uber platform, for both riders and drivers.”  Aspirational statements aren’t categorically immune for liability—the simple addition of phrases such as “Uber is committed to …,” “Uber works hard to …,” or “We’re doing everything we can to …” to an advertising statement is not a liability shield. The challenged statements didn’t just say that Uber prioritizes safety, but rather included assertions that a reasonable consumer might rely on as based in fact, such as “already best in class safety and accountability.”
 
Uber argued that some of the challenged statements weren’t commercial advertising or promotion, and the court agreed. The court used the classic Gordon & Breach test; any changes mandated by Lexmark aren’t important here, where the parties directly compete. Statements to the media went beyond proposing a commercial transaction: “Statements made to the media and published in a journalist’s news article concerning a matter of public importance are not commercial speech, and are protected under the First Amendment.” The articles cited in the complaint discussed whether Uber was safe and included responses from Uber representatives; they were “inextricably intertwined” with the reporters’ coverage of a matter of public concern and thus not actionable under the Lanham Act.  (The parties agreed that the California claims stood or fell with the Lanham Act claims, which is a concession that plaintiffs in particular should be more hesitant to make, especially given the “sufficiently disseminated” constraint on the Lanham Act’s coverage of “advertising or promotion.”)
 
Plaintiffs’ citation to Kasky v. Nike, 27 Cal.4th 939 (2002), and SKEDCO, Inc. v. ARC Prods., LLC, No. 13–cv–00696–HA, 2014 WL 2465577 (D. Or. June 2, 2014), proved insufficient. Kasky “involved statements written by the defendant and distributed as press releases and letters to the editor, rather than statements made in response to journalists’ inquiries and published in independent news articles.”  SKEDCO involved a published interview with a company executive in a specialized magazine targeted toward the business’s primary customer and placed in close proximity to a paid advertisement. By contrast, the challenged statements here were “one part of longer, independent articles that are largely critical of Uber.”
 
However, the court found that statements made about Uber’s “Safe Rides Fee” on users’ emailed receipts were commercial speech. Uber argued that, because they came after completed rides, the statements related to completed transactions, rather than proposing a transaction or influencing consumers to purchase Uber’s services in the future.  However, it was plausible that passengers who read the information about the “Safe Rides Fee” were influenced to use the service again. The explanation of the “Safe Rides Fee” promised “continued efforts to ensure the safest possible platform,” and explained that “you’ll see this as a separate line item on every uberX receipt,” demonstrating Uber’s expectation that customers would ride again. After all, “[t]he business press has frequently observed that all communications between a successful firm and its customers, including post-sale communications, should encourage consumer loyalty and repeat business.”
 
The court then found that plaintiffs lacked standing under the UCL, since their claims were fraud-based and only the person who relied on the fraudulent statement has UCL standing, according to the majority of cases.  Moreover, plaintiffs lacked valid restitution claims because they had no direct or vested ownership interest in money transferred to Uber. Plaintiffs failed to allege a “confirmed” contractual relationship with any of Uber’s customers; nonrestitutionary disgorgement was not available under the label “restitution.”
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BBB claims about its own ratings process not protected by First Amendment

Posted on July 22, 2015 by rtushnet
Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc., No. 4D13-3916 (Fla. Ct. App. June 3, 2015)
Expect more detailed analysis from Ann Lipton soon.
 
CC received an F grade from BBB and sued for defamation and violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).  The trial court granted BBB’s motion to dismiss, and the court of appeals reversed on the FDUTPA claim.
 
CC alleged that the BBB website was “often considered the ‘go-to’ source for consumers seeking to investigate businesses,” and that BBB portrayed itself “as [an] unbiased, public-interest organization[], that the consuming public relies on . . . in selecting businesses to utilize and employ.”  For its FDUTPA claim, CC alleged that BBB deceptively claimed to have an unbiased rating system and to conduct an adequate investigation into the businesses for which it rates.  BBB allegedly falsely represented that it based its grade on sixteen specifically-enumerated factors, but didn’t inform the public that it partially relied on whether a business paid BBB to become “accredited” in grading that business.
 
BBB argued that its statements were pure opinion protected by the First Amendment.  The court of appeals disagreed: the challenged statements were factual representations or omissions—that BBB conducts an investigation into graded businesses; that BBB used sixteen factors; and that paying BBB makes a difference to the grade.
 
In addition, the court of appeals held that a non-consumer had standing to bring a FDUTPA claim.  Prior to 2001 the relevant provision said that “[i]n any individual action brought by a consumer who has suffered a loss as a result of a violation of this part, such consumer may recover [enumerated items].”  The legislature amended it to read: “In any action brought by a person who has suffered a loss as a result of a violation of this part, such person may recover [enumerated items].”  In addition, the legislature amended a related section to change the definition of “consumer” to include a “business” and “commercial entity.”  
 
Lower state court and federal district court cases were divided in whether only consumers could be plaintiffs; the court of appeals agreed that the 2001 amendment “served to broaden the reach of the statute so that more than just consumers could avail themselves of the protection of this statute.”  After all, courts presume that the legislature intends to change the law when it amends a statute. “Therefore, the legislative change regarding the claimant able to recover under FDUTPA from a ‘consumer’ to a ‘person’ must be afforded significant meaning. This change indicates that the legislature no longer intended FDUTPA to apply to only consumers, but to other entities able to prove the remaining elements of the claim as well.”
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First Circuit lifts injunction requiring D’s use of (R) for P’s mark

Posted on July 21, 2015 by rtushnet
Arborjet, Inc. v. Rainbow Treecare Scientific Advancements,
Inc., — F.3d —-, 2015 WL 4366624, No. 14–23241 (1st Cir. July 16, 2015)
(Souter, J., sitting by designation)
 
The district court granted
a preliminary injunction based on a contractual violation, but denied one based
on trademark infringement. 
Nonetheless, the injunction required more detailed labeling of the
defendant’s products, which led the court of appeals to partially reverse.
 
Arborjet makes TREE-age, an emamectin benzoate solution used
to protect trees from various pests.  Rainbow used to have an exclusive right to
distribute TREE-age, subject to a contract that provided, inter alia, that
Rainbow wouldn’t “engage in affairs intended to replicate” TREE-age.  After the agreement terminated, Rainbow began
selling ArborMectin, another emamectin benzoate combination meant to compete
directly with TREE-age.
 
The district court found that Arborjet could show likely
success on the contract claims; among other things, “Rainbow’s website
describes partnering with several institutions and companies to conduct
research studies regarding ArborMectin’s effectiveness,” at least one of which
“took place while Rainbow was … subject to the terms of the [sales agency
a]greement.”  The district court didn’t
abuse its discretion.  Though the EPA
listed a different company, Rotam, as the approved creator of ArborMectin, the
district court had evidence that Rainbow contributed to its creation. 
 
Rainbow argued that the ban on “replicat[ing]” TREE-age was
limited to exact copies, and ArborMectin differed from TREE-age in toxicity and
other details.  The district court
correctly considered the word “replicate” in the context of the entire
contract; Arborjet expressed its concern about guarding information that could
hurt it if disclosed to competitors.  “Accordingly,
the prohibition was probably aimed at preventing efforts by Rainbow to place
Arborjet at a competitive disadvantage, reflecting a concern broader than the
mere creation of an exact copy.” Plus, at the time the contract was entered
into, the active agent in TREE-age was apparently patented, so it seemed “highly
unlikely (albeit not impossible) that Arborjet would include a contractual
prohibition on exact copies only, as the patent laws already saw to that.”  Also, “common sense suggests that, if the
parties had an object as narrow as Rainbow claims, they would have written
clearer language specific to that aim.”
 
However, the injunction also ordered Rainbow to “properly attribute
Arborjet’s trademarks ‘Arborjet’ and ‘TREE-age’ by appending the ® symbol to
those marks and a footnote stating ‘Registered Trademark of Arborjet, Inc.’”
This requirement was improper, given the district court’s holding that Arborjet
wasn’t likely to succeed on the merits of its Lanham Act claims.  Nor was this requirement, as Arborjet argued,
merely giving effect to Rainbow’s binding stipulation in the course of the
proceedings.  Rainbow did make an offer
not to make future statements that ArborMectin was “improved TREE-age,” but
that stipulation related to the false advertising claim.  The preliminary injunction “probably” related
to the false designation claim; but even as to that, the district court didn’t
make a finding of likely success.  In any
event, the stipulation related to the phrase “improved TREE-age,” not to “attribution
of Arborjet trademarks across the board.” That part of the injunction was
vacated.
 
Comment: This result makes sense to me, though I think “improved
TREE-age” could pose a false designation of origin problem,
depending on how it was presented. 
Nonetheless, that is very different from leaving off an ®.  Rainbow’s concession seems wise, but I don’t
see how omitting the ® from an otherwise nonconfusing comparison could cause
any issues with consumers.  (We may see a
fair amount of speculation about consumers’ understanding of ® in the ongoing
§2(a) disparagement litigation, but I am unaware of any actual empirical
research about it.  Any leads would be
much appreciated!)

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Transformative work of the day, Miss Piggy edition

Posted on July 21, 2015 by rtushnet

Miss Piggy sings Rihanna’s BBHMM.  You’re welcome.

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First Circuit lifts injunction requiring D’s use of (R) for P’s mark

Posted on July 21, 2015 by rtushnet
Arborjet, Inc. v. Rainbow Treecare Scientific Advancements, Inc., — F.3d —-, 2015 WL 4366624, No. 14–23241 (1st Cir. July 16, 2015) (Souter, J., sitting by designation)
 
The district court granted a preliminary injunction based on a contractual violation, but denied one based on trademark infringement.  Nonetheless, the injunction required more detailed labeling of the defendant’s products, which led the court of appeals to partially reverse.
 
Arborjet makes TREE-age, an emamectin benzoate solution used to protect trees from various pests.  Rainbow used to have an exclusive right to distribute TREE-age, subject to a contract that provided, inter alia, that Rainbow wouldn’t “engage in affairs intended to replicate” TREE-age.  After the agreement terminated, Rainbow began selling ArborMectin, another emamectin benzoate combination meant to compete directly with TREE-age.
 
The district court found that Arborjet could show likely success on the contract claims; among other things, “Rainbow’s website describes partnering with several institutions and companies to conduct research studies regarding ArborMectin’s effectiveness,” at least one of which “took place while Rainbow was … subject to the terms of the [sales agency a]greement.”  The district court didn’t abuse its discretion.  Though the EPA listed a different company, Rotam, as the approved creator of ArborMectin, the district court had evidence that Rainbow contributed to its creation. 
 
Rainbow argued that the ban on “replicat[ing]” TREE-age was limited to exact copies, and ArborMectin differed from TREE-age in toxicity and other details.  The district court correctly considered the word “replicate” in the context of the entire contract; Arborjet expressed its concern about guarding information that could hurt it if disclosed to competitors.  “Accordingly, the prohibition was probably aimed at preventing efforts by Rainbow to place Arborjet at a competitive disadvantage, reflecting a concern broader than the mere creation of an exact copy.” Plus, at the time the contract was entered into, the active agent in TREE-age was apparently patented, so it seemed “highly unlikely (albeit not impossible) that Arborjet would include a contractual prohibition on exact copies only, as the patent laws already saw to that.”  Also, “common sense suggests that, if the parties had an object as narrow as Rainbow claims, they would have written clearer language specific to that aim.”
 
However, the injunction also ordered Rainbow to “properly attribute Arborjet’s trademarks ‘Arborjet’ and ‘TREE-age’ by appending the ® symbol to those marks and a footnote stating ‘Registered Trademark of Arborjet, Inc.’” This requirement was improper, given the district court’s holding that Arborjet wasn’t likely to succeed on the merits of its Lanham Act claims.  Nor was this requirement, as Arborjet argued, merely giving effect to Rainbow’s binding stipulation in the course of the proceedings.  Rainbow did make an offer not to make future statements that ArborMectin was “improved TREE-age,” but that stipulation related to the false advertising claim.  The preliminary injunction “probably” related to the false designation claim; but even as to that, the district court didn’t make a finding of likely success.  In any event, the stipulation related to the phrase “improved TREE-age,” not to “attribution of Arborjet trademarks across the board.” That part of the injunction was vacated.
 
Comment: This result makes sense to me, though I think “improved TREE-age” could pose a false designation of origin problem, depending on how it was presented.  Nonetheless, that is very different from leaving off an ®.  Rainbow’s concession seems wise, but I don’t see how omitting the ® from an otherwise nonconfusing comparison could cause any issues with consumers.  (We may see a fair amount of speculation about consumers’ understanding of ® in the ongoing §2(a) disparagement litigation, but I am unaware of any actual empirical research about it.  Any leads would be much appreciated!)
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Transformative work of the day, Miss Piggy edition

Posted on July 21, 2015 by rtushnet

Miss Piggy sings Rihanna’s BBHMM.  You’re welcome.

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What claims work when D allegedly drives P down in Google rank through copying?

Posted on July 17, 2015 by rtushnet
Ryoo Dental, Inc. v. Han, 2015 WL 4208580, No. 15–308 (C.D.
Cal. Jul. 9, 2015)
 
Ryoo Dental, a dental practice, had a website to promote its
services, and allegedly spent considerable sums on “search engine optimization
fees, photographing, editing, and updating content and maintaining its
webpage.”  When Ryoo lost its first page
search ranking on Google (for what search term?), it hired an SEO firm, which told
Ryoo that Han, another dentist, had copied content from Ryoo’s site and put it
on his own site, leading Google’s algorithm to penalize Ryoo’s site.  (Sounds like a DMCA takedown might’ve been a
cheaper alternative to litigation, if SEO is the aim.)
 
Ryoo sued Han for copyright infringement and state-law
torts, all of which the court here dismissed as preempted.  The subject matter of the state-law claims,
the website, fell within the subject matter of copyright because it was a fixed
work of authorship.  (Which is why,
incidentally, saying that right of publicity claims based on distribution of fixed works don’t fall into copyright’s
subject matter doesn’t make sense to me.) 
So the only question was whether there were extra elements.
 
For conversion, no, because there was no allegedly
appropriated tangible property, just the reproduction of website content, “indisputably
intangible property.” Likewise for negligent interference with prospective
economic advantage, because the alleged disruption of business consisted of Han’s
alleged copying of Ryoo’s website.
 
False advertising and unfair competition received separate
treatment, but they were essentially reverse passing off rather than passing
off claims—Han wasn’t allegedly misrepresenting his services as Ryoo’s.  The court stated a rule that seems clearly Dastar-noncompliant: “‘Reverse passing
off’ claims are preempted unless the plaintiff alleges bodily appropriation and
seeks more than mere monetary damages,” neither of which are exceptions that
appear in Dastar.  But Han did neither, so his claims were
preempted anyway.
 
Claims for unjust enrichment failed because California has
no separate cause of action based on unjust enrichment, and such a claim would
be preempted anyway.  Ryoo argued that an
accounting was necessary to determine damages, but this too was preempted to
the extent related to the copyright claim, since “the Copyright Act already
affords [plaintiff] an adequate means by which to calculate damages.”
 

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