Tag Archives: trademark

9th Circuit shows some hostility to functionality for product design, gets federal fame right

Posted on June 29, 2020 by rtushnet

Blumenthal Distributing, Inc. v. Herman Miller, Inc., Nos. 18-56471 & 18-56493 (9th Cir. Jun. 25, 2020)  HM and Blumenthal/OSP engaged in litigation over “knockoffs” of HM’s Eames chairs and Aeron chairs. A jury found that HM’s registered and unregistered claimed … Continue reading →

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NOCI to eBay protected against tortious interference claim by Noerr-Pennington, but defamation survives

Posted on June 5, 2020 by rtushnet

Verbena Products LLC v. Pierre Fabre Dermo-Cosmetique USA, Inc., 2020 WL 2988587, No. 19-23616-Civ-Scola (S.D. Fla. Feb. 28, 2020)  Verbena (aka Beautyvice) sells cosmetic and beauty care products on eBay. Defendant Yellow Brand “is a leading global provider of online … Continue reading →

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Copyright preempts/Dastar precludes lawsuit based on Fortnite’s copying of a dance move

Posted on June 1, 2020 by rtushnet

Brantley v. Epic Games, Inc., No. v. 19-cv-594-PWG (D. Md. May 29, 2020)  Plaintiffs Brantley and Nickens alleged that in 2016 they created, named, and popularized a dance move, which they titled the “Running Man,” and which subsequently went viral … Continue reading →

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Sam’s Club exposed to disgorgement for potential warranty differences in grey goods it sold

Posted on May 26, 2020 by rtushnet

Monahan Prods. LLC v. Sam’s East, Inc., 2020 WL 2561255, No. 18-11561-FDS (D. Mass. May 20, 2020) Plaintiff makes UPPAbaby strollers. Sam’s is a chain of membership-only retail warehouse stores and, despite not being an authorized retailer, it sold actual … Continue reading →

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A few thoughts on the Booking.com argument

Posted on May 7, 2020 by rtushnet

The Justices were engaged and asking the right questions, despite everyone’s use of “trademark” as a verb to mean “register.” With a putatively generic term the equation is perhaps understandable since if it is unregistrable it will also be unprotectable … Continue reading →

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9th Circuit panel divides on evidence of injury in false advertising case

Posted on May 4, 2020 by rtushnet

VBS Distribution, Inc. v. Nutrivita Laboratories, Inc., — Fed.Appx. —-, 2020 WL 2086557, No. 18-56317 (9th Cir. Apr. 30, 2020) The parties compete in the market for nutritional supplements and television programs. VBS sued for Lanham Act and California state … Continue reading →

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TM may look like a certification mark, but that doesn’t harm a competing trade organization

Posted on May 1, 2020 by rtushnet

North American Olive Oil Ass’n v. D’avolio Inc., 16-CV-6986 (SJF) (ARL), 2020 WL 2079421 (E.D.N.Y. Apr. 30, 2020) NAOOA, a trade association for olive oil marketers/sellers/etc., sued a number of defendants for false advertising about olive oil sold by others. … Continue reading →

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11th Circuit protects (at least some) truthful references to product creation

Posted on April 20, 2020 by rtushnet

Webster v. Dean Guitars, — F.3d —-, 2020 WL 1887783, No. 19-10013 (11th Cir. Apr. 16, 2020) Buddy Webster (pka Buddy Blaze), a successful guitar maker and technician, in the mid-1980s modified a Dean guitar and commissioned someone to paint … Continue reading →

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Humvees in Call of Duty are constitutionally protected realism, not confusing/diluting

Posted on April 17, 2020 by rtushnet

AM General LLC v. Activision Blizzard, Inc., No. 17 Civ. 8644 (GBD) (S.D.N.Y. Mar. 31, 2020) The district court allows Humvees to appear in realistic videogames by performing a full confusion analysis, despite purporting to follow Rogers v. Grimaldi. The … Continue reading →

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Rogers continues to collapse into transformativeness in the Ninth Circuit: dog toy edition

Posted on April 17, 2020 by rtushnet

VIP Products LLC v. Jack Daniel’s Properties, Inc., No. 18-16012 (9th Cir. Mar. 21, 2020) VIP Products sells the “Bad Spaniels Silly Squeaker” dog toy, which resembles a bottle of Jack Daniel’s Old No. 7 Black Label Tennessee Whiskey, but … Continue reading →

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