Rebinding books doesn't create derivative works but may be actionable under Lanham Act
Rebecca Tushnet's 43 (B)log
by Rebecca Tushnet
3d ago
Steeplechase Arts & Productions, L.L.C. v. Wisdom Paths, Inc., 2023 WL 416080, No. 22-02031 (KM)(MAH) (D.N.J. Jan. 26, 2023) In this pre-discovery summary judgment ruling, the court adopts the correct view of whether rebinding creates a derivative work (no) but finds that there could still be trademark infringement, in the process suggesting that a defendant might not be responsible if an online portal forces it to choose from condition descriptions, none of which quite fits. Defendant does business as Spiralverse; it bought lawfully made Steeplechase books and rebound them with spiral bin ..read more
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"out of stock" not shown to be misleading when Walmart stopped stocking P's product
Rebecca Tushnet's 43 (B)log
by Rebecca Tushnet
3d ago
Stiles v. Walmart, Inc., --- F.Supp.3d ----, 2022 WL 16806210, No. 2:14-cv-02234-DAD-DMC (E.D. Cal. Nov. 8, 2022) Stiles invented the “Stiles Razor,” a patented disposable razor with a narrow blade for precise shaving. Many years ago, Walmart agreed to sell the Stiles Razor in its stores, but about ten years ago, Walmart terminated the relationship. Stiles alleged that it sold knockoff razors instead, infringing her patents, violating trademark and antitrust law, and interfering with her economic interests. The court granted partial summary judgment to Walmart. The Stiles razor appeals to peop ..read more
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Statements to investors not probative of commercial ad/promotion in Lanham Act case
Rebecca Tushnet's 43 (B)log
by Rebecca Tushnet
4d ago
Strategic Partners, Inc. v. FIGS, Inc., 2022 WL 18399950, No. 2:19-cv-02286-JWH-KS (C.D. Cal. Sept. 26, 2022) [much other stuff skipped] The parties had a false advertising dispute that went to a jury, which found that FIGS wasn’t liable for falsely advertising the antimicrobial properties of its scrubs. Since the court had some interesting evidentiary rulings, I’m blogging that here. First, FIGS successfully excluded four documents that allegedly contain investor-related communications on the basis that “[o]nly ‘commercial speech’ that is made ‘for the purpose of influencing consumers to buy ..read more
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Dastar bars federal anticopying claims, but not state ones?
Rebecca Tushnet's 43 (B)log
by Rebecca Tushnet
4d ago
Williams-Sonoma, Inc. v. Wayfair Inc., --- F.Supp.3d ----, 2023 WL 371035, No. 1:21-12063-PBS (D. Mass. Jan. 24, 2023) WS sued Wayfair, alleging patent infringement, Lanham Act false advertising, Massachusetts and California statutory unfair competition and Massachusetts false advertising based on alleged copying of West Elm products. Wayfair moved to dismiss the false advertising and unfair competition claims. The Lanham Act and California claims failed, but the Massachusetts claim survived. WS has nine relevant design patents, which it alleged Wayfair infringed. Example:  False adverti ..read more
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Bioengineering disclosures mostly survive APA, First Amendment attack
Rebecca Tushnet's 43 (B)log
by Rebecca Tushnet
1w ago
Natural Grocers v. Vilsack, --- F.Supp.3d ----, 2022 WL 4227248, No. 20-cv-05151-JD (N.D. Cal. Sept. 13, 2022) An appeal has been filed in this case upholding USDA regulations promulgated to deal with bioengineering disclosures. Congress declared that the purpose of the disclosure statute was “to preempt state and local actions that mandate labeling of whether a food or seed is genetically engineered, and establish a mandatory uniform national disclosure standard for human food that is or may be bioengineered.” Plaintiffs, retail stores that sell natural and organic food products, and organiza ..read more
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How can one show false advertising injury to get a presumption of irreparable harm?
Rebecca Tushnet's 43 (B)log
by Rebecca Tushnet
1w ago
Santos Elecs. Inc. v. Outlaw Audio, LLC, No. 8:22-cv-827-JVS-KESx, 2022 WL 18396275 (C.D. Cal. Dec. 12, 2022) Reconsidering its previous decision as to the Lanham Act claim, the court granted a preliminary injunction against counterclaim defendant Santos dba OSD. The parties compete in the market for audio products and sell competing models of multichannel amplifiers on different platforms, including Amazon. The false statement at issue is OSD’s claim that one of its products, an amplifier, has a signal-to-noise ratio of 115 decibels. “The signal-to-noise ratio measures the difference between ..read more
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A landline war in ED Tex--AT&T loses bid to enjoin T-Mobile
Rebecca Tushnet's 43 (B)log
by Rebecca Tushnet
1w ago
AT&T Mobility LLC v. T-Mobile USA Inc., No. 4:22-cv-00760, 2023 WL 311287 (E.D. Tex. Jan. 18, 2023) T-Mobile’s “Banned Seniors” was a nationwide marketing and advertising campaign intended to attract customers over the age of fifty-five. Its website, www.BannedSeniors.com, says that AT&T “ban[s] senior discounts” outside of Florida. It says “92% of seniors in the U.S. can’t get a 55+ discount from ... AT&T because they don’t live in Florida” and offers non-Floridian seniors three options for obtaining a “55+ Discount”: (1) Switch to T-Mobile; (2) Move to Florida; or (3) Get a Virtu ..read more
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False CMI isn't plausibly related to consumers' decisions to buy/watch TV show
Rebecca Tushnet's 43 (B)log
by Rebecca Tushnet
1w ago
Livn Worldwide Ltd. v. Vubiquity Inc., 2022 WL 18278580, No. 21-cv-09589-AB-KS (C.D. Cal. Jul. 22, 2022) Interesting Dastar case thrown up by Westlaw. LW alleged that it was the exclusive licensee allowed to distribute and sell a 60-episode series, Martial Universe, in the US. As part of preliminary discussions with Vubiquity about a distribution agreement for iTunes, LW provided master copies of all 60 episodes, but no agreement was ever reached. Nonetheless, Vubiquity allegedly uploaded the series to iTunes for sale and download. This allegedly involved false copyright and release date infor ..read more
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CFP--Yale/Harvard/Stanford Junior Faculty Forum: please disseminate widely!
Rebecca Tushnet's 43 (B)log
by Rebecca Tushnet
1w ago
  Request for Submissions Harvard/Stanford/Yale Junior Faculty Forum June 29-30, 2023, Yale Law School Harvard, Stanford, and Yale Law Schools are soliciting submissions for the 2023 Harvard/Stanford/Yale Junior Faculty Forum, to be held at Yale Law School on June 29-30, 2023. Twelve to twenty junior scholars (with one to seven years in teaching) will be chosen, through a double-blind selection process, to present their work at the Forum. A senior scholar will comment on each paper. The audience will include the participating junior faculty, senior faculty from the host institutions, and ..read more
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Survey + D's own website plausibly show materiality of presence of even small amounts of phthalates
Rebecca Tushnet's 43 (B)log
by Rebecca Tushnet
2w ago
Stuve v. Kraft Heinz Co., 2023 WL 184235, No. 21-CV-1845 (N.D. Ill. Jan. 12, 2023) Plaintiffs alleged that Kraft Mac & Cheese deceptively omitted information, misleading purchasers into believing that Kraft Mac & Cheese is free from phthalates—“plasticizing chemicals that, at certain levels, can be dangerous to consume.” Plaintiffs filed this complaint in federal court pursuant to the Class Action Fairness Act of 2005, They alleged violations of multiple state consumer fraud and deceptive business practice laws; unjust enrichment; and breach of warranty. The court dismissed claims for ..read more
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