Tag Archives: Social Media

Likelihood of peregrination – Minnesota CLE

I’ve been ’round so long I don’t hardly even know what square is.  I want to thank Minnesota CLE for having me on February 16, 2016.  You can still watch it on video, at the link, if you wish. Here’s a picture to prove that it really happened:

That was the “thought leadership” panel right there, in the course of which I had the opportunity to meet and talk “thought leadership”  — you can just imagine! — and social-media-for-lawyers-stuff with

I, myself, had my own question for Steve, and he walked right into it during a discussion of guest blogging, which Aaron Keller had said he considered to be essential to the success of a law blog, whereas your blogger as well as Seth Leventhal demurred considerably.  Steve then mentioned, as an aside, that perhaps people with group blogs could be viewed as, well, “cheating” compared to those of us who mostly have to write our own stuff.

Write it or, well, recycle it.

And I said, Hell yes you’re cheating, Baird!  But how on earth do you make them write, anyway?  He responded that they want to; they come here to do that; it’s a feature, not a bug.

Must be something in the air, in fair Minneapolis.

Later on I spoke about a case I’ve been involved with.  You don’t need to read any more about that here.

Thanks for having me, Minneapolis CLE!  Next stop:  Hollywood!!

 

Yelp for evidence

Originally posted 2013-03-05 17:36:11. Republished by Blog Post Promoter

edb_bwAnonymous online comments as proof of a LIKELIHOOD OF CONFUSION at the preliminary injunction stage? Evan Brown explains:

In a trademark case between competing health clubs, the court considered a Yelp posting in entering a preliminary injunction, finding that while the anonymous posts were not conclusive evidence of actual confusion, they were indicative of potential consumer confusion. . . .

The court rejected defendant’s hearsay argument. It noted that affidavits and hearsay materials which would not be admissible evidence for a permanent injunction may be considered if the evidence is appropriate given the character and objectives of the injunctive proceeding. . . .

Here’s the opinion in You Fit v. Pleasanton Fitness LLC.

What exactly was the posting?  Evan excerpts it:

I am soo [sic] confused. I was a member at Youfit in [Arizona] and when I moved back to [California] I saw this place by my house and thought great my gym is here! When I went into the gym, I realized it was called Fit U. They use the same basic color scheme on their sign and the motto seemed the same. When I asked the girl at the desk, … [she] said her owner created this brand. I said what are you [sic] rates? Seemed very similar to me as when I was a member at Youfit. Very confusing and a big let down.

Evan points out that the court went so far as to conclude that the Yelp post was not hearsay to begin with because “It was not being offered to prove the truth of the matter asserted, but to demonstrate the consumer’s confusion — a then-existing mental state of the declarant, which is an exception to the hearsay rule.” As Even points out, this is a little, uh, confusing:

The hearsay and non-hearsay uses of the post both turn on the same content, particularly the statement “I am soo [sic] confused.” That statement is the matter asserted (and in such capacity, excludable hearsay).

In other words, the truth of the matter asserted is the existence, vel non, of a LIKELIHOOD OF CONFUSION, right?  Well, maybe.  After all, the court did, as Even notes, reject the post as proof of actual confusion — and that’s what’s being asserted.   The commenter did not write, “I’m so likely to be confused!”

That would be weird. Read More…

Best of 2013: Yelp for evidence

Originally published on March 5, 2013.edb_bw

Anonymous online comments as proof of a LIKELIHOOD OF CONFUSION at the preliminary injunction stage? Evan Brown explains:

In a trademark case between competing health clubs, the court considered a Yelp posting in entering a preliminary injunction, finding that while the anonymous posts were not conclusive evidence of actual confusion, they were indicative of potential consumer confusion. . . .

The court rejected defendant’s hearsay argument. It noted that affidavits and hearsay materials which would not be admissible evidence for a permanent injunction may be considered if the evidence is appropriate given the character and objectives of the injunctive proceeding. . . .

Here’s the opinion in You Fit v. Pleasanton Fitness LLC.

What exactly was the posting?  Evan excerpts it:

I am soo [sic] confused. I was a member at Youfit in [Arizona] and when I moved back to [California] I saw this place by my house and thought great my gym is here! When I went into the gym, I realized it was called Fit U. They use the same basic color scheme on their sign and the motto seemed the same. When I asked the girl at the desk, … [she] said her owner created this brand. I said what are you [sic] rates? Seemed very similar to me as when I was a member at Youfit. Very confusing and a big let down.

Evan points out that the court went so far as to conclude that the Yelp post was not hearsay to begin with because “It was not being offered to prove the truth of the matter asserted, but to demonstrate the consumer’s confusion — a then-existing mental state of the declarant, which is an exception to the hearsay rule.” As Even points out, this is a little, uh, confusing:

The hearsay and non-hearsay uses of the post both turn on the same content, particularly the statement “I am soo [sic] confused.” That statement is the matter asserted (and in such capacity, excludable hearsay).

In other words, the truth of the matter asserted is the existence, vel non, of a LIKELIHOOD OF CONFUSION, right?  Well, maybe.  After all, the court did, as Even notes, reject the post as proof of actual confusion — and that’s what’s being asserted.   The commenter did not write, “I’m so likely to be confused!”

That would be weird. Read More…