Welcome from Barcelona!

Thread. First time I’ve shown up at the @INTA host city so early. Turns out I’ve missed the local celebrations marking our arrival. #INTA17 pic.twitter.com/8uiDUt9Rwu — Likelihood ®© Blog (@likely2confuse) May 20, 2017

Read more

The Art of the Decision on the Opinions of Science.

Originally posted 2013-07-08 12:42:11. Republished by Blog Post PromoterIn a wholly unsexy but nonetheless instructive decision in ONY, Inc.  v. Cornerstone  Therapeutics, Inc. dated June 26, 2013, the Second Circuit upheld the dismissal of a plaintiff’s false advertising complaint.  The reason:  Opinions expressed in a scientific article do not constitute false advertising under the Lanham Act if the data analyzed is not fraudulent and the conclusions of the authors of the article can be considered by the relevant sophisticated community — which is free to reject the conclusions in question with or without reproducing the study that led to them. The plaintiff... Read more

Après Tam, le déluge? Nah.

I was speaking to a thoughtful, insightful person last night who asked me, “What if Simon Tam wins in Lee v. Tam and Section 2(a)’s disparagement bar is struck down, or maybe the whole provision is?  Then there will be all these terrible trademark registrations. What then?” She was not the first to ask this. I have a couple of answers. Yes, it bothers me that this might happen.  And it bothers, or bothered, the United States Government that it might happen — including for reasons that have gotten zero attention by those discussing this case. But when I really think... Read more

England folds

Originally posted 2010-02-24 23:56:51. Republished by Blog Post PromoterInstapundit reports about England shutting down a blogger for “inciting racial hatred” — which is illegal.  At least it is when it’s against certain “races.” In case you ever harbored any doubts about the wisdom of the American Revolution. Read more

CREATINE writing

Originally posted 2011-08-29 23:18:05. Republished by Blog Post PromoterThe TTABlog examines, so to speak, an almost metaphysical TTAB discussion of when a trademark is or is not “unitary” for purposes of the requirement to disclaim non-registrable elements: “When a compound word mark is formed by hyphenating two words or terms, one of which would be unregistrable alone, the mark is deemed unitary and no disclaimer is necessary.” This one is not for amateurs, but if you’re a trademark pro you should take a look at it. Read more

Best of 2010: An opinion to Di for

Originally posted 2012-10-23 21:13:18. Republished by Blog Post PromoterFirst posted on May 5, 2010. I do a lot of bellyaching around here about how there are never any consequences for filing frivolous trademark and copyright lawsuits. What’s the worst thing that can happen to a well-heeled plaintiff that wants to use the expense of defending, even meritoriously, against a “federal case” as a way to effectuate a “business message” (namely, you’re out of business, because we say so)? Usually, nothing. Not just usually. Really pretty much a lot usually. Not this time.  This is a little dense if you’re not... Read more

Trademark clarity where it’s manufacturer versus distributor

Everyone here understands that in the U.S., trademark rights are determined by use, a term of art that, practically speaking, means hardly anything, but if it means anything at all pretty much means “sale.”  And priority in trademark — priority being a term of art that means pretty much everything — goes to the party that makes that use first. But what if the manufacturer of a branded good leaves that part — the selling — to an exclusive distributor?  This can often make perfectly good business sense. Just as great lawyers are not necessarily great salespeople of legal services, there... Read more

Own (Up to) Your (Alleged) Infringement

Originally posted 2013-06-04 11:04:38. Republished by Blog Post PromoterThe problem—as this blogger sees it—with most mass-media reports of court decisions is that they tell you the outcome, but they rarely if ever tell you what’s really interesting about a decision. Consider, for example, the May 31 decision in the Second Circuit matter of Kelly-Brown, et al. v. Winfrey, et al. In the first place, the case might never have been reported as news if the Winfrey in question weren’t that Winfrey. But it is (a woman who “almost needs no introduction,” according to the court). So the news is that... Read more

Best of 2014: IP’s Ancien Régime

Originally posted 2014-12-24 04:08:30. Republished by Blog Post PromoterFirst posted on April 2, 2014. Instapundit linked to an abstract of a law journal article called “IP in a World Without Scarcity” by Mark Lemley at Stanford.  Fun fact from Lemley’s Stanford bio page:  “His works have been cited 140 times by courts, including seven United States Supreme Court opinions, and over 9,500 times in books and law review articles.”  Well, Mark, that’s all very nice, but now you’ve made the big time! Here’s an excerpt of the excerpt: Things are valuable because they are scarce. The more abundant they become, they cheaper they... Read more