Amicus Brief of Scholars of Corpus Linguistics in Rimini Street v. Oracle

Just found this use of linguistics super interesting. Abstract:

The question presented in Rimini Street v. Oracle is whether the Copyright Act’s allowance of “full costs” is limited to the categories and amounts of costs enumerated in 28 U.S.C. 1920 & 1821, or whether it refers to all litigation expenses. Because Congress and the Supreme Court have stated that the word “costs” is a term of art, the question turns on whether the word “full” — as the Ninth Circuit held — can cause “costs” to lose its technical meaning. This brief, filed on behalf of eleven corpus linguistics scholars, presents empirical evidence derived from corpora — electronically searchable databases of texts — that shows that it cannot. The meaning of adjectives is determined by the nouns they modify, not the other way around. That is why we judge a “tall seven year old” by a different standard of tallness than a “tall NBA player” and why the word “long” means one thing when modifying “story” and something else entirely when modifying “table.” Furthermore, the linguistic evidence shows that “full” in Section 505 should be considered a “delexicalized” adjective — meaning its purpose is to draw attention to and underline an attribute that is already fundamental to and embedded in the nature of the noun. “Full” often serves to emphasize the completeness of an object that is already presumed to be complete, like “full deck of cards,” “full set of teeth,” and “full costs.”

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Avvo’s Pro designation is opinion/puffery

Davis v. Avvo, Inc., — F.Supp.3d —-, 2018 WL 6629269
(S.D.N.Y. Dec. 19, 2018)
Davis, an attorney, sued Avvo for false advertising in
violation of the Lanham Act and NYGBL § 349. Avvo hosts profiles of attorneys
for consumers to use; the profiles often contain client and peer reviews, as
well as a numerical “Avvo rating,” which is derived by criteria defined by Avvo.
Avvo includes profiles for attorneys who pay for advertising and related
services and attorneys who do not. Davis alleged that lawyers who pay Avvo (1)
receive higher Avvo ratings than similarly qualified nonpaying attorneys,
although the defendant represents its ratings as objectively calculated; (2)
receive a badge reading “Pro” laid on top of the profile headshot; (3)
are touted in Avvo’s advertising as “highly qualified,” “the right,”
or the “best” attorneys; and (4) have positive client reviews spotlighted and
negative client reviews removed or blocked. 
[For the last, Eric Goldman will almost certainly disagree but I think
that a bar could reasonably determine that attorneys shouldn’t pursue partnerships with entities that cook the books in the manner alleged.]
The court dismissed the claim; the challenged
practices/statements were nonactionable opinion and puffery. Quoting McCarthy: “Under
both the Lanham Act and the Constitutional free speech clause, statements of
opinion about commercial matters cannot constitute false advertising ….” Also
true of GBL §349.
First, the court ruled that the allegedly misleading
features of the defendant’s website, including its Avvo ratings, weren’t
commercial speech because Avvo’s consumer-facing side was
an informational directory of
attorneys, which consumers can consult whether or not they intend to hire an
attorney. And the complained-of website features simply provide information;
they might be considered in making, but do not themselves propose, a commercial
transaction. Moreover, that sponsored advertisements appear on the defendant’s
website does not morph the website’s noncommercial features into commercial
speech.
So that put the profiles outside of the Lanham Act anyway.
Second, these were statements of opinion, incapable of being
proven false and thus constitutionally protected:
The defendant’s rating system is
inherently subjective. The defendant chooses the inputs for its system and
decides how to weigh them. … A reasonable consumer would view an Avvo rating as
just that – the defendant’s evaluation. What factors the defendant believes to
be important in assessing attorneys, and the result of the defendant’s weighing
of those factors, cannot be proven false.
Third, the “Pro” badge appearing on the profile pictures of
attorneys who pay Avvo is intended to convey a statement of fact: that an
attorney has verified the attorney’s information as it appears on Avvo. Avvo’s
website explains this meaning with an “i” icon next to the “Pro” badge. Hovering
over the “I” discloses that “Attorneys that are labeled PRO have verified their
information as it appears on Avvo,” and the website eventually explains the
“Avvo Pro” subscription plan if you follow enough links elsewhere. Thus, the
statement wasn’t false. Davis alleged that it was still misleading because it
implied higher quality, and the disclosures weren’t sufficiently conspicuous to
avoid that implication.  The court agreed
with Avvo what this was puffery. “Pro” means, literally, a professional; that
was true [though why that’s relevant to misleadingness, especially when others
in the profession were not granted the dignity of that characterization if they
didn’t pay, is unclear]. To the extent that consumers perceived it as “conveying
that an attorney is especially experienced or skilled, the term is mere
puffery.” Davis couldn’t prove that lawyers marked “Pro” were undeserving, “because
in context the term has no definite meaning or defining factors.” Allegations
about advertising “highly qualified,” “the right,” or the “best” attorneys failed
for the same reasons, as did allegations that paying lawyers got enhanced
visibility on the website.
Fourth, the court determined that spotlighting positive
client reviews while removing or refusing to post negative client reviews in
the profiles of attorneys who pay for the defendant’s services wasn’t false
advertising. Initially, the website stated that Avvo could withhold reviews that
didn’t meet its guidelines, and that negative reviews could be put through a
dispute process at a lawyer’s request. “Consumers are therefore on notice that
every client review might not be posted in an attorney’s profile.” [That’s
really not the same thing as distorted selectivity, though—neither of those policies
discloses discrimination in favor of paying lawyers.]  Anyway, “a collection of client reviews
reflects subjective judgments. A reasonable reader would understand that each
review is merely an opinion.” Thus, the absence of some reviews didn’t render
the remainder misleading. [That doesn’t make a lot of sense to me. The overall
ecosystem can be misleading even if each input is subjective, especially where
the ecosystem is run by someone who purports to be independent.  Under the court’s reasoning, it wouldn’t be
false advertising for a food producer to claim to “win” a taste test—taste being
classically subjective—by removing the tasters who rated the product poorly and
not disclosing that. The concern about deterring individual reviews, or even
collections of reviews, is a real one, but so is the concern about undisclosed
bias driven by payment from the reviewed.]  
Further, “spotlighting positive reviews is not false advertising. Not
only are the positive reviews opinions, but simply indicating that a particular
consumer was satisfied with a service plainly does not constitute a false or
misleading statement.”  [Consider the FTC’s
Testimonial Guidelines. Under what circumstances might a positive review imply
that others can expect the same results? Or are the Guidelines also
unconstitutional in this view?]
Finally, Davis did not sufficiently allege injury by
offering facts that demonstrate a causal connection between his injury some
misrepresentation made by Avvo. Conclusorily alleging lost fees and reputational
damages, and diverted business, was insufficient absent facts indicating that
consumers on the allegedly misleading Avvo ratings, pro badges, client reviews,
or other statements “in choosing or gauging the reputation of an attorney.” “The
only fact the plaintiff pleaded to support his theory of harm is that the
defendant’s website holds a prominent presence on the internet, and thus
consumers who perform a Google search with phrases like ‘top litigation
attorney’ will see the website on the first page of results.” That wasn’t
enough.

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More B&B: Fraud on the PTO that led to years of extra litigation isn’t “exceptional” for fee purposes

B&B Hardware, Inc. v. Hargis Industries, Inc., No.
17-1570 (8th Cir. Dec. 21, 2018)
H/T C.E. Petit. This comedy of errors might (might!) be
ending. The court of appeals affirmed the district court’s judgment in favor of
Hargis and its denial of Hargis’s motion for fees and costs.
For those of you who understandably haven’t followed the ins
and outs, the opinion does an admirable job of summarizing:
In B&B’s trademark infringement
action against Hargis in May 2000, a jury found that B&B’s “Sealtight” mark
was not entitled to protection because it lacked secondary meaning. We
affirmed. In June 2006, B&B filed for incontestability status for its
trademark with the Patent and Trademark Office (PTO). The PTO issued a Notice
of Acknowledgment in September 2006, concluding that B&B’s affidavit of incontestability
met the statutory requirements.
… Immediately after its 2006 filing
for incontestability, B&B brought suit against Hargis again for trademark
infringement, unfair competition, trademark dilution, and false designation of
origin. …
[T]he Supreme Court of the United
States .. found that the district court should have given preclusive effect to
a decision of the Trademark Trial and Appeal Board (TTAB) finding that there
was a likelihood of confusion between “Sealtight” and “Sealtite.” …
At trial, Hargis argued that
B&B obtained its incontestability status through fraud, presenting evidence
that B&B failed to inform the PTO about the 2000 jury verdict that
B&B’s “Sealtight” mark was merely descriptive.…
The jury found that Hargis
infringed on B&B’s trademark but did not do so willfully, awarded B&B
none of Hargis’s profits, and found for Hargis on its counterclaims and its
affirmative defense of fraud. Based on the jury’s fraud finding, the district
court found that “Sealtight” was not entitled to incontestability status, and
that B&B therefore had not pled an intervening change in circumstances
allowing it to relitigate claims raised inthe 2000 jury trial. The district
court therefore entered judgment for Hargis on all claims.
B&B appealed, arguing that the jury verdict finding
fraud and a lack of willfulness was clearly erroneous; and that the district
court abused its discretion in refusing to disgorge Hargis of its profits. The
court of appeals found no plain error.
Incontestability requires an applicant to file an affidavit
with the PTO declaring that “there has been no final decision adverse to [his]
claim of ownership of such mark . . . or to [his] right to register the same or
to keep the same on the register . . . .” “At least one circuit treats a
district court’s finding of mere descriptiveness at summary judgment as such an
adverse decision.” [And I don’t see how one could conclude otherwise, since
descriptiveness means that the symbol is not a mark and thus can’t be owned as
a mark. Failure to disclose is important since the PTO doesn’t examine §15
affidavits on the merits as long as it’s facially complete. And the affidavit
is “especially important because a defendant accused of infringing an
incontestable trademark may raise an affirmative defense that ‘the registration
or the incontestable right to use the mark was obtained fraudulently.’” Fraud
on the PTO “consists of willfully withholding material information that, if
disclosed, would result in an unfavorable outcome.”  Here, materiality means information that a
reasonable examiner would have considered important.
Warning: bad argument alert, not fully called out by the
court of appeals.  B&B argued that the
2000 verdict wasn’t a final adverse decision. The court of appeals responded
that, in 2007, the TTAB explicitly stated that the 2000 jury verdict was an adverse
decision that extinguished B&B’s common-law rights in the “Sealtight” name,
so there was no plain error in the district court so finding. B&B then
argued that its deception wasn’t willful because it didn’t realize the jury
verdict was a final adverse decision and that it didn’t disclose that verdict based
on the advice of counsel. The jury was entitled to disbelieve B&B’s owner’s
testimony on this point. 
15 U.S.C. § 1065 specifies that the affidavit has to include statements that “(1) there has been
no final decision adverse to the owner’s claim of ownership of such mark for
such goods or services, or to the owner’s right to register the same or to keep
the same on the register; and (2) there
is no proceeding involving said rights pending in the United States Patent and
Trademark Office or in a court and not finally disposed of.
” B&B’s
predicate to its defense, that “finality” was what mattered, is thus fatally
flawed.  Of course, it is in theory
possible that its counsel was so incompetent as not to understand this very
clear provision of law, especially since courts of appeal apparently feel no
need to mention it, but the true requirements for an incontestable registration
might lend even more plausibility to the jury’s conclusion.
Given that incontestability was barred by fraud, the court
of appeals affirmed the conclusion that collateral estoppel from the 2000 trial
now applied again since there was no significant, nonfraudulent intervening factual
change. Once Hargis proved the affirmative defense of fraud, B&B lost the benefits
of incontestability, including the presumption of validity.  B&B argued that the 2000 district court
lacked subject matter jurisdiction to determine whether “Sealtight” had secondary
meaning because incontestability precludes any review of descriptiveness, but
the mark wasn’t incontestable in 2000. “Absent any evidence that B&B’s mark
has developed secondary meaning since the 2000 trial, we decline to allow
B&B to relitigate that issue.”
Hargis also wanted its fees, and I sympathize (we haven’t
even talked about the other facts B&B played fast & loose with, no pun
intended), given that it’s been fighting this ridiculous case for decades.  Despite the fraud finding, the court concluded
that “[t]his case does not present an example of groundless, unreasonable, or
vexatious litigation, as it has arguable merit on both sides—evidenced by the
fact that both parties have prevailed at various times throughout its 12-year
history. We cannot say that B&B pursued litigation in bad faith, as it
received a favorable Supreme Court ruling and reasonably believed it could prevail.”
This conclusion demonstrates the importance of selecting a starting point.  I would have started instead with B&B’s
decisions to go to the PTO seeking a workaround to the failure of the first case,
to fail to disclose that material adverse result to the PTO, and to
deliberately leverage that wrongly granted incontestability as the sole reason
to relitigate the whole case.  I would
have thought that taking a matter to the Supreme Court on a premise that itself
was based in fraud was “exceptional.”  It’s
probably also true that Hargis could have disposed of the matter earlier had
its attorneys been unusually attentive to the actual requirements of
incontestability and had the district court also understood incontestability,
but as between the parties I would attribute the responsibility to B&B.

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“soluble” coffee case grinds on

Suchanek v. Sturm Foods, Inc., 2018 WL 6617106,  No. 11-CV-565-NJR-RJD (S.D. Ill. Jul. 3, 2018)
I don’t know why this took so long to show up in my
searches, but: this is a consumer protection class action arising from Sturm’s
ill-fated decision to put instant (which it labeled “soluble”) coffee into pods
that fit into Keurig coffeemakers, to get a jump on the competition for nicer
ground coffee pods once the pod patent expired. This lawsuit was filed in 2011;
the district court dismissed it on the theory that consumers should have known
that “soluble” meant “instant,” and the
court of appeals reinstated it
, after which a
class was certified
on liability. Sturm didn’t take my unasked-for
advice of that last post; instead, it seems determined to litigate to the
bitter end, no pun intended.
Plaintiffs brought claims under the consumer protection laws
of Alabama, California, Illinois, New Jersey, New York, North Carolina, South
Carolina, and Tennessee. This opinion details the court’s trial plan dealing
with key elements of the claims.
Sturm waited seven years to raise a FDCA preemption argument
and did so in a few sentences; nope.  The
court also emits a bit of impatience with Sturm’s re-raising of previously
rejected arguments.  More generally, case
law about class certification establishes whether certain issues can be
resolved with class-wide evidence at trial. And the fact that the Seventh
Circuit said that “[e]very consumer fraud case involves individual elements of
reliance or causation” in its earlier opinion in this case does not mean that
class-wide proof is impermissible to establish reliance or causation under any
and all circumstances.
The parties agreed that individual proof was needed to show
causation under the statutes of Tennessee and South Carolina, but not on the
other laws.
The Alabama Deceptive Trade Practice Act, for example, bans
“[e]ngaging in any other unconscionable, false, misleading, or deceptive act or
practice in the conduct of trade or commerce.” The court found that causation
was clearly a required element: a deceptive act or practice is not actionable
unless the defendant’s conduct “causes monetary damage to a consumer ….”  However, reliance could be presumed upon a
showing of material falsehood.  Although
common law fraud requires individualized proof of reliance, the ADTPA was a
Little FTC Act intended to replace the common law and provide a stronger
remedy; the legislature also directed courts to look to the FTCA for guidance
in interpreting the law, and FTC practices supported a presumption of reliance
from material falsehood.  Alabama bars
consumer class actions under the ADTPA, but that procedural rule is only
applicable in state court, not in federal courts governed by Rule 23; Alabama
also allows the AG to bring classwide claims. Thus, the court wouldn’t impose a
requirement to show justifiable reliance on an individual basis in order to
implement an anti-class action policy. “Plaintiffs are entitled to a rebuttable
presumption of reliance if they show Defendants made a uniform and material
misrepresentation to the class. Moreover, causation and reliance are “twin”
concepts that are often intertwined in the context of fraud.… Plaintiffs also
are entitled to a presumption of causation if they establish the elements
necessary for a presumption of reliance.”
California’s CLRA: “When the consumer shows the
complained-of misrepresentation would have been material to any reasonable
person, he or she has carried the burden of showing actual reliance and
causation of injury for each member of the class. As some courts have put it,
the plaintiff may establish causation as to each by showing materiality as to
all.” Unless “the record will not permit” that inference, as when a named
plaintiff testifies that she didn’t have the posited reaction to the claim or
where it was “likely that many class members were never exposed to the
allegedly misleading advertisement.” 
Thus, inferences of causation, reliance, and injury arise under the CLRA
“where plaintiffs can establish that the defendants made a uniform and material
misrepresentation or omission to the entire class.”  The UCL “is much more straightforward” and
doesn’t require individualized proof of deception, reliance and injury.
Illinois: ICFA claims require individual inquiries into
proximate causation, except that “where the representation being challenged was
made to all putative class members, Illinois courts have concluded that
causation is susceptible of classwide proof …” Causation can be presumed if
there’s a uniform misrepresentation to all class members and “there is no other
logical explanation for the class members’ behavior in response to the
representation.”
New Jersey has applied a presumption of causation where a
misrepresentation was material, in writing, and uniformly made to each
plaintiff, and also where “all the representations about the product [were]
baseless.” The application of a presumption of causation also may depend on whether
plaintiffs could have known the truth behind the alleged fraud (why that is
relevant is not clear to me) and whether plaintiffs reacted to information
about the product in a similar manner.
New York doesn’t require reliance on a misleading act or
practice, but does require plaintiffs to show they suffered a loss because of
the defendant’s deceptive act. Causation can be shown class-wide “where the
misrepresentation or omission was uniformly made to the entire class, crucial
to the purchasing decision, and misrepresented the product’s very essence.” By
contrast, individual proof is necessary where the product had “a number of
characteristics that customers might value.”
North Carolina requires a showing of proximate causation,
which itself requires a demonstration of actual and reasonable reliance. “While
this inquiry may be difficult to conduct on a class-wide basis, the Supreme
Court of North Carolina has held that circumstantial evidence may be sufficient
for a factfinder to infer reliance.” For example, a material misrepresentation
that went to the sole point of the product could justify a class-wide finding
of causation, as could a sufficiently material misrepresentation uniformly made
to the class.
The court concluded that the target consumers, Keurig owners,
faced a “more-or-less one-dimensional decision making process” when they
purchased the accused product. They hoped to buy single-servings of premium, ground coffee they could brew in their
Keurig machines. “There is no other logical explanation as to why consumers
would purchase instant coffee, at a premium price, in a K-Cup, that they had to
brew.” It doesn’t make sense to buy a product three or four times more
expensive than typical instant coffee to use a specialized machine to heat
water for instant coffee. “This is simply not a case where the plaintiffs had a
number of reasons for purchasing” the product.
The allegations were of a complete misrepresentation of
instant coffee as ground coffee, “obviously crucial to Plaintiffs’ purchasing
decisions as Keurig owners.” There was no evidence that plaintiffs would have
purchased the product even if they “knew the truth” about the product, or that
any significant part of the class had access to all the information they needed
before they bought. “Here, numerous experts conducted surveys and concluded
that few consumers understood that GSC [the product] contained instant coffee
at all based upon either the initial or modified packaging. Even if some
consumers did understand GSC consisted of instant coffee, they had no way of
knowing GSC was actually more than 95% instant coffee.”  The record also showed a virtually unanimous
reaction: “a uniform outpouring of dissatisfaction with the product…. Essentially,
Plaintiffs received a useless product.”
Ultimately, though a jury would determine deceptiveness and
proximate causation of injury, it could do so on a class-wide basis, without
individual inquiries.
The court reasoned similarly with respect to how plaintiffs
could show ascertainable loss under the relevant state laws.  Where plaintiffs allege that they bought a
product at a price greater than a truthfully advertised product could have
charged, class-wide evidence can establish injury.  Plaintiffs offered both a refund model (they
bought a valueless product, since they did not want ground coffee at all) and a
price premium model for showing damages, both of which the jury could
consider.  For states providing statutory
damages—Alabama and New York—those models could also establish
damage-triggering injury (both states require a showing of some damage before
awarding statutory damages).  Here, the
plaintiffs’ injuries didn’t vary from person to person; “the focus is on what
the defendants said on their packages and whether the product is different from
what was promised.”
The court thus indicated its intent to subclass based on the
initial and modified packages, further divided by state law.  The first planned jury trial would be
bifurcated.  The first part would assess
whether defendants committed a deceptive act or omission that would be
materially misleading to a reasonable consumer. If the jury so found, the court
would then decide whether those acts were materially deceptive under North Carolina
law (which treats whether acts are unfair or deceptive as a question of law)
and California law (because UCL and FAL claims are equitable in nature). The
jury would then answer the same question for the remaining state subclasses.  If the jury said yes, it would proceed to
answer questions about whether the conduct occurred in the course of trade or
commerce [that one seems a gimme]; whether the conduct affected the public
interest; whether the non-Tennessee/South Carolina/California classes suffered
injuries/damages/ascertainable losses in reliance on, or as a proximate cause
of, the deception; and whether defendants intended for that last group to rely
on their deceptive acts or omissions. A second jury trial would then determine
the remaining elements of ascertainable loss, proximate cause, and damages for
the Tennessee and South Carolina subclasses.

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Program on Private Law call for fellowship applicants in private law and IP

PROJECT
ON THE FOUNDATIONS OF PRIVATE LAW

POSTDOCTORAL FELLOWSHIP
IN PRIVATE LAW AND INTELLECTUAL PROPERTY, 2019

CALL FOR
APPLICATIONS

PURPOSE: The Project on the Foundations
of Private Law is an interdisciplinary research program at Harvard Law School
dedicated to scholarly research in private law.   Applicants should be aspiring academics with
a primary interest in intellectual property (especially, patent, copyright,
trademark and trade secret) and its connection to one or more of property, contracts,
torts, commercial law, unjust enrichment, restitution, equity, and remedies. The
Project welcomes applicants with a serious interest in legal structures and
institutions, and welcomes a variety of perspectives, including economics,
history, philosophy, and comparative law. The Qualcomm Postdoctoral Fellowship in
Private Law and Intellectual Property is a specifically designed to identify,
cultivate, and promote promising IP scholars early in their careers. Fellows
are selected from among recent graduates, young academics, and mid-career
practitioners who are committed to spending one or two years at the Project
pursuing publishable research that is likely to make a significant contribution
to the IP and private law, broadly conceived. More information on the Center
can be found at: https://ift.tt/2iMpXkS.
PROGRAM: The Qualcomm Postdoctoral Fellowship
in Private Law and Intellectual Property is a full-time, one- or two-year
residential appointment, starting in the Fall of 2019. Like other postdoctoral
fellows, IP Fellows devote their full time to scholarly activities in
furtherance of their individual research agendas in intellectual property and
private law. The Project does not impose teaching obligations on fellows,
although fellows may teach a seminar on the subject of their research in the
Spring of their second year. In addition to pursuing their research and
writing, fellows are expected to attend and participate in research workshops
on private law, and other events designated by the Project. Fellows are also expected
to help plan and execute a small number of events during their fellowship, and
to present their research in at least one of a variety of forums, including
academic seminars, speaker panels, or conferences. Through organizing events
with outside speakers, helping to run programs, and attending seminars, fellows
interact with a broad range of leading scholars in intellectual property and
private law. The Project also relies on fellows to provide opportunities for
interested students to consult with them about their areas of research, and to
directly mentor its Student Fellows. Finally, fellows will be expected to blog
periodically (about twice per month) on our collaborative blog, New Private Law
(blogs.harvard.edu/nplblog).
STIPEND AND BENEFITS: Fellows have
access to a wide range of resources offered by Harvard University. The Center
provides each fellow with office space, library access, and a standard package
of benefits for employee postdoctoral fellows at the Law School.  The annual stipend will be $55,000 per year.
ELIGIBILITY: By the start of the
fellowship term, applicants must hold a J.D. or other graduate law degree. The
Center particularly encourages applications from those who intend to pursue
careers as tenure-track law professors in intellectual property and private law,
but will consider any applicant who demonstrates an interest and ability to
produce outstanding scholarship in the area. Applicants will be evaluated by
the quality and probable significance of their research proposals, and by their
record of academic and professional achievement.
APPLICATION: Completed applications should
be addressed to Bradford Conner, and must be received at conner@law.harvard.edu
by 9:00 a.m. on February 15, 2019.
Please note that ALL application materials must be submitted
electronically, and should include:
1. Curriculum Vitae
2. PDFs of transcripts from all
post-secondary schools attended.
3. A Research Proposal of no more than
2,000 words describing the applicant’s area of research and writing plans.
Research proposals should demonstrate that the applicant has an interesting and
original idea about a research topic that is sufficiently promising to develop
further.
4. A writing sample that demonstrates the
applicant’s writing and analytical abilities and ability to generate
interesting, original ideas. This can be a draft rather than a publication.  Applicants who already have publications may
also submit PDF copies of up to two additional published writings.
5. Three letters of recommendation,
emailed directly from the recommender. Letter writers should be asked to
comment not only on the applicant’s writing and analytical ability, but on his
or her ability to generate new ideas and his or her commitment to pursue an intellectual
enterprise in intellectual property and private law. To the extent feasible,
letter writers should provide not just qualitative assessments but also ordinal
rankings. For example, rather than just saying a candidate is “great,” it would
be useful to have a statement about whether the candidate is (the best, in the
top three, among the top 10%, etc.) among some defined set of persons (students
they have taught, people they have worked with, etc.).
All
application materials with the exception of letters of recommendation should be
e-mailed by the applicant to conner@law.harvard.edu.
Letters of Recommendation should be emailed directly
from the recommender
to the same address.
For
questions or additional information, contact: Bradford Conner, Coordinator, conner@law.harvard.edu.

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“As seen on TV” can be false advertising if seller hasn’t been seen on TV

E. Mishan & Sons, Inc. v. Smart & Eazy Corp., 2018
WL 6528496, No. 18 Civ. 3217 (PAE) (S.D.N.Y. Dec. 12, 2018)
Plaintiff Emson sued defendants Masterpan and S&E for
false advertising.  The parties compete
to sell pots and pans.  Emson’s Gotham
Steel pots and pans are made of aluminum and have a copper-colored, non-stick
ceramic and titanium coating; it uses direct response TV commercials and as “As
Seen On TV” logo on its packages and other ads.
S&E and Masterpan sell “The Original Copper Pan” which
allegedly deceives the public by falsely and deceptively conveying to consumers
that its cookware is the first of its kind and that Emson’s (and other’s)
products are not the originals but are instead mere imitations. In addition,
defendants allegedly falsely advertised certain versions of the OCP as being
made of, and not merely coated with, copper. “Although each pan has a
copper-colored cooking surface, Emson alleges that it ran tests on samples of
the 12-inch OCP,” and found that “the cores of each of the tested Original
Copper Pans had undetectable levels of copper” and that the inner coating on
the samples also lacked the presence of copper. 
Finally, defendants allegedly “use an ‘As Seen On TV logo in their
advertising,” without having advertised on TV, or only minimally doing so.
The court found that false advertising was plausibly alleged
against Masterpan, in terms of copper construction, use of “original” to
suggest it was first of its kind, and use of “As Seen on TV.”  The court noted that the allegations on the
last one were tenuous, and that discovery might deterimine whether there was
literal truth/any TV advertising. 
Masterpan tried to distance itself from statements on the main website
and on Groupon, but while it was conceivable that Masterpan had no control over
or awareness of those statements, the court wouldn’t assume so on a motion to
dismiss. It was plausible that Masterpan “controls or is party to the marketing
statements regarding its products that appear on both websites.” The OCP
website “bears the name of the product that Masterpan manufactures and sells,”
and even if it wasn’t registered to Masterpan, it was plausible that “Masterpan
has had a say in the words used to market its products as sold through that website.”
Masterpan’s control over Groupon advertising was even more plausible, since the
OCP Groupon page “explicitly states that the product is ‘[s]old by Master[p]an’
and that ‘the merchant is solely responsible to purchasers for the fulfillment,
delivery, care, quality, and pricing information of the advertised goods and
services.’”
Defendant S&E, however, fared better. Emson alleged
sufficient facts to plausibly conclude that Masterpan markets and sells the OCP,
as noted above and by providing documentary evidence that Masterpan shares
directors with Dreambiz, Ltd., which owns the trademark “The Original Copper
Pan.” But there was nothing so specific as to S&E, only allegations that it
shared an address with Masterpan.

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Cheezit, the food cops! 2d Circuit reinstates claim over “made with whole grain” where most grain content is white

Mantikas v. Kellogg Co., No. 17-2011 (2d Cir. Dec. 11, 2018)
Plaintiffs bought Cheez-It crackers that were labeled “whole
grain” or “made with whole grain.” They alleged violation of New York and
California consumer protection laws because such labeling would cause a
reasonable consumer to believe that the grain in whole grain Cheez-Its was
predominantly whole grain, when, in fact, it was primarily enriched white
flour. The district court held that the whole grain labels would not mislead a
reasonable consumer, and the court of appeals (in some tension with its recentholding on Trader Joe’s truffle-flavored oil) reversed.

The challenged packages used “WHOLE GRAIN” in large print in
the center of the front panel of the box, and “MADE WITH 5G OF WHOLE GRAIN PER
SERVING” in small print on the bottom or “MADE WITH WHOLE GRAIN” in large print
in the center of the box, with “MADE WITH 8G OF WHOLE GRAIN PER SERVING” in
small print on the bottom. Both packages also contained a “Nutrition Facts”
panel on the side of the box, which stated in much smaller print that a serving
size of the snack was 29 grams and that the first ingredient on the ingredients
list (in order of predominance, as required by federal law) was “enriched white
flour.” “Whole wheat flour” was either the second or third ingredient.
The district court held that both the “MADE WITH WHOLE
GRAIN” and “WHOLE GRAIN” labels would not mislead a reasonable consumer,
because both statements were true and were “qualified by further accurate
language detailing the number of grams of whole grain per serving.”
False advertising or deceptive business practices under New
York or California law requires that the deceptive conduct was “likely to
mislead a reasonable consumer acting reasonably under the circumstances.” Context
is crucial, including disclaimers and qualifying language. The district court
reasoned that “a reasonable consumer would not be misled by a product’s
packaging that states the exact amount of the ingredient in question.” But the
packaging here allegedly implied that the product was “predominantly, if not
entirely, whole grain,” and it wasn’t. This was plausibly misleading because
they falsely imply that the grain content was entirely or at least
predominantly whole grain.
The ingredient list didn’t help, even though it indicated that
a serving size of Cheez-Its was 29 grams and the list of ingredients names
“enriched white flour” as the first (and thus predominant) ingredient. The
serving size didn’t “adequately dispel the inference communicated by the front
of the package that the grain in ‘whole grain’ crackers is predominantly whole
grain because it does not tell what part of the 29-gram total weight is grain
of any kind.” Plus, adopting the Ninth Circuit’s Williams rule, the court of appeals agreed that “reasonable
consumers should [not] be expected to look beyond misleading representations on
the front of the box to discover the truth from the ingredient list in small
print on the side of the box.” The Nutrition Facts panel and ingredients list plausibly
contradicted, rather than confirmed, the “whole grain” representations on the
front of the box.
Other cases dismissed on the pleadings involved plaintiffs
who alleged deception because a product label misled consumers to believe, falsely,
that the product contained a significant quantity of a particular ingredient. Here,
however, the deceptiveness was the implication that, of the grain content in
the product, most or all of it is whole grain, as opposed to less nutritious
white flour. In addition, in most of the other cases, “plaintiffs alleged they
were misled about the quantity of an ingredient that obviously was not the
products’ primary ingredient.” No reasonable consumer would think that crackers
“made with real vegetables” were made primarily with fresh vegetables.  Here, “reasonable consumers are likely to understand
that crackers are typically made predominantly of grain. They look to the bold
assertions on the packaging to discern what type of grain.” Thus, the front of
the package could have misled them. The court declined to adopt a rule that
would allow any “made with X” advertising when the ingredient X was in fact
present, no matter how deceptive (e.g., if the crackers here were 99.999% white
flour).

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