Monthly Archives: May 2014

Flummoxed By FLANAX: TTAB Cancels Trademark Registration Based On Misrepresentation As To Source Despite No Use In U.S. By Petitioner

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In an interesting precedential decision, the Trademark Trial and Appeal Board (TTAB) canceled a registration for FLANAX despite the fact that the petitioner, Bayer Consumer Care AG, did not use FLANAX in the United States, but only in Mexico.  The case illustrates that the “misrepresentation as to source” provision of the Lanham Act can be a useful tool in egregious cases,… More

Communications Decency Act Forecloses Liability For “Amplifying,” “Endorsing” and “Adopting” Defamatory Statements With Hyperlink

Two weeks ago, in Vazquez v. Buhl, the Appeals Court of Connecticut affirmed dismissal of a defamation claim against CNBC for hyperlinking to an online report by journalist Teri Buhl. The Court held that, although CNBC allegedly “amplified,” “endorsed” and “adopted” the offending report, it was not a “content provider” under the Communications Decency Act (CDA).

The Sex and Money Scandal Rocking Hedge Fund Land

In 2012,… More

An INTA Hong Kong Debrief

After a week at the International Trademark Association Annual (INTA) Annual Meeting in Hong Kong, and another spent exploring the city and its surrounds, it’s nice to be heading back to the comparatively quaint major city we call home.  But as I fly through Siberian airspace, over the North Pole, and through Canada en route to Beantown, I have a few parting thoughts.

The Gateway to Everything

As the Gateway to Asia,… More

Federal Circuit Copyright Decision in Oracle v. Google: A Quick Read for the Busy Practitioner

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In its recent opinion in Oracle v. Google, the Federal Circuit reversed the Northern District of California and reinstated a jury’s infringement verdict against Google. The opinion is long and complex, and much ink has already been spilled by its critics. As a service to those of you sitting on the sidelines of this particular debate, here is our summary version of the case:

  1. What’s the case about?…
  2. More

Bait-And-Switch Trademark Case Defines Limits Of Initial Interest Confusion

MrSteamIn its recent decision in Sussman-Automatic v. Spa World, the Eastern District of New York dismissed a plaintiff’s trademark infringement claims, while allowing its claims for false advertising based on the same conduct to survive.  The decision explores the boundaries between a false advertising “bait-and-switch” scheme and the “initial interest confusion” theory in Lanham Act cases.

The Mr. Steam Bait-and-Switch

The plaintiff,… More

Milk Dud? False Advertising Lawsuit Against Makers of Muscle Milk Illustrates Interplay Between Lanham Act, FTC and FDA

MM1In a lawsuit recently filed in the Southern District of Florida, Global Beverage Enterprises, Inc. (“Global”), the manufacturer of specialty carbonated beverages like Mr. Q. Cumber Sparkling Cucumber Beverage, brought Lanham Act claims against CytoSport, Inc., alleging false advertising of CytoSport’s popular Muscle Milk line of beverages.  The basis of the claim is that the Muscle Milk beverages contain no milk and, therefore, the product name is false and misleading. … More

Settlement in False Advertising Class Action Leaves First Amendment Questions Unanswered

Vibram

On April 30, 2014, the plaintiffs in Bezdek v. Vibram, a class action in the District of Massachusetts, filed for court approval of a class wide settlement. The case had been brought against Vibram, the Italian manufacturer of “five finger” minimalist footwear, by consumers who alleged that the company committed false advertising when promoting health benefits of its product for which there was allegedly no scientific support.… More

Privacy or Property? Arizona Court Adopts Post-Mortem Right of Publicity In Intra-Family Online Dispute

The right of publicity, i.e., the right not to have others appropriate your name or image for commercial purposes, is an odd duck.  It was described by Professor Prosser in 1960, and later in the Restatement of Torts, as of one of four species of common law privacy rights intended to remedy the emotional injury to one’s “seclusion” caused by breaches of privacy. By contrast, the Third Restatement of Unfair Competition in 1995,… More

Recent Copyright And Trademark Administrative Developments

Some recent administrative developments may be of interest to copyright and trademark practitioners:

Copyright Fees

Effective May 1, 2014, the U.S. Copyright Office has amended its registration fee schedule.  This includes reduced renewal application fees and increased fees for registering multiple works.  A complete list of the new fees is available here.

Updated Trademark Manual of Examining Procedure (TMEP)

On April 30,… More