LIKELIHOOD OF CONFUSION®

Open Source — Yes, There’s Room to Debate

If you’re lucky enough to be anywhere near Palo Alto on Thursday, you might want to check out this Open Source Debate being sponsored by the Federalist Society: Join professors Lawrence Lessig and F. Scott Kieff as they debate the merits of open source, shared source, and traditional IP rights. Under what circumstances should open source be mandated, or at least encouraged? What are the legal and policy implications of open source — does it…

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The unbearable dumbness of threatening

I’ve made a career here of tut-tutting the impolitic and brand-negating utterance of baseless cease and desist and other threatening letters based on IP infringement, including this recent post about the Louis Vuitton / University of Pennsylvania dustup.  That situation demonstrated that only lawyers who neglect to think clearly about how their actions will affect their clients’ brands will line up and march into oncoming fire, expecting to achieve victory in an IP-guerilla war solely... Read more

Facebook in your soup?

Eric Goldman makes an interesting point about too-clever-by-half lawyering (“what the hell, let’s throw everyone in”) that’s actually pretty stupid.  I’ve highlighted that point at the bottom: A New York teenager has sued Facebook and four Facebook users (plus their parents) for allegedly defamatory content posted in a private Facebook group called “90 Cents Short of a Dollar.” This case fits neatly with other legal battles over “cyber-bullying” (whatever that means), such as the AutoAdmit... Read more

The ACLU’s strange bedfellows

Here’s some news:  The American Civil Liberties Union says the Redskins are wrong, damned wrong — but they’ve got every right in the world to be that way. They even filed an amicus brief in the District Court in support of the Redskins’ right to be wrong.  Amicus briefs at the trial level are quite unusual. The ACLU’s brief, and an earlier blog post on its site, both make explicit reference to the appeal of the... Read more

Reality is stranger than… something

Larry Zerner does it again with his uniquely unique (if too infrequent — that’s a free tip, Larry) content.  This time it’s an article called, “5 Horrible Provisions You Might Find In A Reality Show Contract.”  A perfectly pleasant explanation, followed by a horrible example: For those people who hear the siren’s song beckoning them to a reality show, I would caution them to be very careful.  Especially if you are already pursuing a career in... Read more

Posner’s “judicial interpretive updating” and the disparagement clause

Thank God for small favors.  Like being far away from the Seventh Circuit these days if you or your client want to rely on the words of a statute to determine what the law is. Simon Tam and the Slants do. An important argument in Respondent Simon Tam’s merits brief submitted in the U.S. Supreme Court review of In Re Tam, 808 F.3d 1321 (Fed. Cir. 2015) was, as was observed by a select few, premised on... Read more

Best of 2010: Forget breakfast — eBay eats Tiffany’s lunch

The Second Circuit, unsurprisingly according to most commentators, has affirmed the decision of the Southern District of New York refusing to find eBay liable for contributory trademark infrintgement in the Tiffany v. eBay case.  I have been following the case since before it was filed (yeah, bitter as usual!) and have written bunches of posts on it — see, look? In terms of the Second Circuit opinion itself, you can find that here.  If at... Read more

Resurrection

Resurrection is a popular topic in branding and trademarks. There’s Tylenol, of course, which returned from a near-death experience; and Pepsi, which promised to provide one. Now William Lozito at Name Wire notes the phenomenon of [S]taid, established brand names like GE and Westinghouse … being licensed to consumer electronics manufacturers overseas, mostly in Asia, and com[ing] back home to dominate a segment they did many years ago. GE, in other words, brings good things... Read more

No “30% solution”

Here I am, sitting 44 stories above the Garment District itself (when I’m not standing under its immortal needle, shown below), and I needed Staci Riordan‘s new fashion IP blog all the way out on the Left Coast to tell me about the “30% rule” which she, wisely, advises designer clients doesn’t exist: There are two business mantras that every fashion company should follow: Always take the meeting, and Get it in writing Recently, due... Read more

Gucci v. Frontline Processing: Giving credit for infringement where it’s due

The essential role played by credit card companies in online trademark infringement was recognized in Gucci America, Inc. v. Frontline Processing Corp. In that case, the court allowed contributory infringement claims to go forward against companies that had established credit card processing for an online counterfeit merchant. The payment for the counterfeit goods sold on its website was part of the infringing process, the court reasoned, drawing on Judge Kozinski’s dissent in Perfect 10, Inc.... Read more

Kirtsaeng and Copyright: First sale means first sale

The Supreme Court handed down a huge decision in copyright law today, ruling in Kirtsaeng v. John Wiley & Sons, Inc. that the first sale doctrine, which allows for legally acquired copyright-protected works (or, in trademark, goods bearing a trademark) to be resold by their owners, applies to works made overseas — notwithstanding language in the Copyright Act that many courts had held suggested otherwise. My first involvement in litigation centered on this question was in a... Read more

Met some bloggers!

What a great evening it was at Meet the Bloggers VIII at the International Trademark Association’s annual meeting in DC!  And by now, we should know. The space was perfect — accessible, attractive, spacious but not too much with the spacious, and no blasting music.  We’re lawyers, you know?  We like words. The crowd was charming, diverse, sophisticated, and had excellent taste in INTA events.  Some, like Peter Groves, came bearing A Dictionary of Intellectual... Read more