IP Institutions

Hurricane Harvey: Have a Heart for Houston

Via @elizabethking: I spoke with World Trademark Review about the IP community’s response & outreach on #HurricaneHarvey Link: https://t.co/WHnA5SlikV #Houston pic.twitter.com/TBHt8ecNFn — Elizabeth King (@ElizabethKing) September 5, 2017 And here’s the hook for HIPLA (the Houston Intellectual Property Law Association): HIPLA wishes each of our members and their families well in this difficult time of repair and recovery from Hurricane Harvey. While there is no doubt that Houston will recover from this disaster, there are members…

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Yelp for evidence

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... Read more


City walls including David’s Tower and the Valley of Hinnom, from Jaffa Gate Originally uploaded by Likelihood of Confusion. I was in Israel last week. In Israel there is more capacity for confusion, and for clarity, than anywhere else. You can see my abbreviated travelogue by clicking on this picture of the city walls of Jerusalem, overlooking the very gate of Hades (appropriate for a litigator). Originally posted 2013-11-03 23:05:05. Republished by Blog Post Promoter Read more

Best of 2013: WAL-ZYR versus ZYRTEC: Allergic to legislating trademark law?

First published February 14, 2013. I have no problem using the TTABlog for a blog launching point every week. Why would I when I can riff on a post such as this one, about an important decision involving the LIKELIHOOD OF CONFUSION between a “nationally advertised brand” — Zyrtec, the allergy medication — and a store brand, in this case Walgreens’ WAL-ZYR: The Board sustained this Section 2(d) opposition to registration of the mark WAL-ZYR for ““pharmaceuticals,... Read more

Sea change on web-based contract amendments

The Ninth Circuit sounds really right on this: Service providers should not be able to change their terms of service arbitrarily without notifying their registered users, according to the judges in the US Court of Appeals for the Ninth Circuit. The decision on the case of Douglas v. Talk America (PDF) could affect how web site operators handle changes made to user agreements, regardless of what the user originally agreed to…. “Parties to a contract... Read more

That’s it. That’s the post.

Really, just Sarah Burstein: Okay, okay. Sarah and Dennis Crouch. “Iconic,” of course, could stand in for “secondary meaning,” in this case acquired distinctiveness. But that is essentially a judicial crapshoot, so why not sue? If your company is big enough, you’ve got a pretty good shot of getting your own trademark phantom tag. Read more

A new wrinkle in Internet privacy

The Alex Kozinski dustup has everyone clucking his tongue over the seemingly inevitable march toward realization of the dictum that there is no expectation of privacy for anything going on or through the Internet.  One would think that is certainly the case of text messaging, following the sad case of Kwame Kilpatrick. So what do we make of this, from Orin Kerr?: The Ninth Circuit handed down a very important decision today in Quon v.... Read more

Second Circuit and the whole of the law on confusion

This is big, but stay calm.   Though I hardly can. I took some heat a little while ago for suggesting, contrary to my generally skeptical view of what constitutes trademark use in commerce (a legal premise of infringement), that there’s something very flabby about the argument that the use of trademark-protected words as search terms by competitors can never be infringement.  (I never said it always is.)  And until now, district courts in the Second... Read more

The only unmentionable trademark?

We alluded to this story in an earlier post. Evidently Daman Wayans’s attempt to file a trademark application for the word “Nigga” continues to hit a brick wall. Forget “immoral or scandalous,” which, as we have said before, is an increasingly hopeless position for national government to take on almost anything in this enlightened era. Interestingly, though, this one will probably stick. Political correctness — in this case, quite correct! (most of the time) —... Read more

Best of 2011: The big guys

Originally posted on February 8, 2011. I try these days not to blog about blogging, but this item seemed like a good opportunity to depart from the general rule. My friend Ray Dowd of Copyright Litigation Blog fame has caught a little attention with this post listing “the top 50 intellectual property law blogs of all time,” according to Justia’s Blawgsearch.  (Ray’s blog made the list, as did LIKELIHOOD OF CONFUSION® and pretty much all the usual... Read more

Malice branding

This post consists of one tweet about branding, the social moment, corporate ethics and all the things, by someone else. If the French Revolution were happening today, Ikea would be strategizing how to get its branding on the guillotines https://t.co/nrJZiJfAjB — Michael Malice (@michaelmalice) July 6, 2020 Originally posted 2020-07-05 22:45:49. Republished by Blog Post Promoter Read more

Secondary liability conference Stanford thing

What if they called a conference on secondary liability on the Internet and no one told … well, me? It happens.  I mean, that people could forget to tell me.  Imagine!  Whether the symposium itself really happened, well, there is a lot of circumstantial evidence.  Al I’m saying is I just can’t swear to it myself.  Nor could I fly to it myself because no one invited me, me, me! But evidently in March of... Read more