Intellectual Property Law

eBay wins Tiffany case

Posted on July 14, 2008
Reuters reports that Tiffany’s gamble has not paid off: EBay Inc scored a major legal victory on Monday, when a federal judge ruled that Tiffany & Co failed to prove the online auctioneer was responsible for the sale of fake Tiffany jewelry on its website...

Can you ring the unrung bell?

Posted on July 14, 2008
LIKELIHOOD OF CONFUSION® has recently run up against the following issue in litigation and welcomes views from the house. We think we’re on the right side of it, but there’s no question some courts have waved it away, though not usually with a lot of analytical rigor: It is known to be a common practice [...

Locking it down

Posted on July 10, 2008
Every lawyer who practices in the intellectual property area is asked frequently how to go about protecting a unique or creative idea that someone fears is at risk of being stolen by a prospective investor, partner or advisor to whom early disclosure is necessary...

There must be some kind of way out of here

Posted on July 09, 2008
But mediation isn’t it — in the Jimi Hendrix vodka case, that is, which Mike Atkins has been all over since last year, as we reported back then. No settlement, says Mike now; back on a litigation track.  The hour’s getting late!

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Forward, into the past

Posted on July 09, 2008
Eric Goldman reports on a couple of cases that are doin’ the Time Warp — again: It’s not uncommon for courts to make judgments based on outdated understandings of precedent and technology, especially when dealing with dynamically evolving areas like Internet trademark law...

VeRO takedown — but not the usual way

Posted on July 08, 2008
“A home-based seller of handmade crafts has won a trademark lawsuit by default against an artwork licensing giant,” reports AuctionBytes: Jennifer Heist makes handmade collectible fabric crafts, such as checkbook covers, photo holders and bookmarks, and sells them online and at craft shows...

Read Blawg Review or be a Commie

Posted on July 07, 2008
Jonathan Frieden’s E-Commerce Law blog hosts this week’s Blawg Review! Don’t think less of him just because he’s done a rally - round - the - flag theme, in which he picks the best or, in the case of New York, most financially undercompensated law blogger in each state to honor with a link...

Blame it on chain

Posted on July 05, 2008
You’d think a catalog page is a great way, in a trademark registration application, to show use of a trademark “in commerce” associated with the goods or services being offered. You could be wrong, though. John Welch reports a TTAB decision upholding the denial of a trademark application for machine chain supported by [...

Viacom discovers You

Posted on July 04, 2008
I wouldn’t overreact to this, because in my experience confidentiality orders work very well, but it is certainly newsworthy: A U.S. judge’s order to Google Inc to turn over YouTube user data to Viacom Inc sparked an outcry on Thursday from privacy advocates in the midst of a legal showdown over video piracy...

All the suntain lotion in the world…

Posted on July 02, 2008
O’Connor federal courthouse Originally uploaded by Ron Coleman Yesterday I was here, in the stupidestly-designed courthouse on God’s brutally-baked brown desert earth — the Sandra Day O’Connor Courthouse in sunny Phoenix, Arizona...

Home cookin’ a la mode, with a most undeserving dessert

Posted on July 01, 2008
From the WSJ Law Blog: A French court today cracked down on counterfeits ? and an outlet that sells them ? ordering eBay to pay Louis Vuitton and other luxury brands ? Kenzo, Guerlain, Dior and Givenchy ? $63.1 million in damages for auctioning fake goods...

Bloggers aren’t fair game in litigation just because you can

Posted on June 26, 2008
There is really justice in this world, sometimes, reports David Ardia: A federal magistrate judge in New Hampshire has sanctioned Clifford Shoemaker, a Virginia attorney, for abusing the legal process by issuing a subpoena to Kathleen Seidel. We really blew this one, blogging wise...

Trademark trouble for posturing peaceniks?

Posted on June 25, 2008
Harvey of IMAO is on top of what promises to be a huge — record-setting, perhaps — IP story: While attempting to create the world’s largest peace sign, festival-goers in Ithaca, NY, created the world’s largest Mercedes sign by mistake...

License revoked

Posted on June 25, 2008
Ever wonder about this new thing — where someone sells you some stuff, typically something that has some sort of copyright on it, only when you take a close look it turns out they tell you, no, they didn’t really sell it to you — they only licensed it to you?  Sounds pretty ridiculous, and [...

“Diversion”: Threat or menace?

Posted on June 25, 2008
‘Diversion’ Originally uploaded by Ron Coleman We have written before (as have some judges) about the dubious concept of “diversion,” usually used to rationalize the equally dubious concept of “initial interest confusion,” as well as in cases where claims for tortious interference with contract have been used as a way to protect distribution networks from Internet-based competition...

Cowboy rules

Posted on June 24, 2008
From the National Post, trademark news about a lawsuit brought by New York’s charming Naked Cowboy against the makers of M&M’s and its ad agency.  The story is full of Canadian spelling, but you can still more or less make this story out: Robert Burck, a New York street performer who entertains the crows in Times [...

Brandland, USA

Posted on June 22, 2008
This is fun: News and history on brand preservation. BrandlandUSA? brings back America’s best-loved dead brands. Find a forgotten product. Help us save, promote and preserve historic brand names. Baby boomers, and their little brothers and sisters such as LIKELIHOOD OF CONFUSION®, insist on the never-ending relevance, nay, central significance of every popular cultural referent capable of [...

A new wrinkle in Internet privacy

Posted on June 19, 2008
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...

China fakes reform

Posted on June 18, 2008
On the eve of the Beijing Olympics — which is nothing if not a branding, merchandising and licensing bonanza to which athletes are invited — a nervous Chinese government official writes in the Wall Street Journal that that the era of Chinese counterfeiting is about to end, actually, and here’s why: How will we do this? [...

The AP, copyright, and the bloggers

Posted on June 17, 2008
You can’t have missed the story, in all its agony. One weensy problem with the blogosphere: It’s so quick, so supple, so instantaneous, so plastic… that it is also reactive, and in its own way, reactionary.  Its reactions have the tendency, from time to time, of pouring flames on fires, and painting parties and their antagonists [...

A stitch in time saves Nine

Posted on June 17, 2008
And the converse, says the Ninth, saves nothing, reports Michael Atkins: On June 11, the Ninth Circuit upheld the Western District?s award of attorney?s fees on the false designation of origin claim in Derek Andrew, Inc. v. Poof Apparel Corp. However, the court cautioned that if the award included fees based on the Copyright Act, then the award [...

The infinite chain of being

Posted on June 15, 2008
For increasingly desperate copyright holders such as the RIAA and its UK equivalent, the BPI, in the vain fight against a fatal paradigm shift it’s not just a matter of third-party liability:  They want the presumptive right to shut down any physical or technological resource that could even, conceivably, result in a copyright infringement, as [...

Aw, shucks

Posted on June 12, 2008
We already covered the Designer Skin v. S&L Vitamins summary judgment decision, and linked to commentators Greg Beck, Bill Patry, Rebecca Tushnet, Eric Goldman and Jason Lee Miller. But it’s positively nerve-wracking reading the commentary of someone like Evan Brown!

Mad Abboud you

Posted on June 11, 2008
Ouch! The Wall Street Journal reports: A federal judge ruled that menswear designer Joseph Abboud, who sold his trademark and later left the company that owns it, can’t use his name to promote a new line he calls “jaz.” JA Apparel Corp...

Blurring away

Posted on June 11, 2008
It really does appear that trademark dilution, once the darling of federal judges seeking to enforce trademark rights in gross on behalf of markholders whose brands they recognized, is getting less and less respect. Which in general doesn’t trouble us too much, though it’s not as if Starbucks hasn’t had enough undeserved aggravation on [...

Cafe-Oppress

Posted on June 10, 2008
Increasingly, meritless IP claims and spineless takedown policies (always a dangerous combination) are making a Cafe Press a battleground for political speech assassination. No, it’s not a First Amendment issue; they’re a private company.  Private censorship is legal, usually, and often absolutely necessary...

Certainty of Revelation

Posted on June 08, 2008
We will be out of the reality-based loop (or will we?) due to the two-day observance of the Jewish festival of Shavuoth, the celebration of the Revelation that made the Jews the “chosen nation,” starting Sunday night through Tuesday night...

Bring out The Best?

Posted on June 06, 2008
We’ve always been fascinated* with the concept of the lookalike packaging of “house brands” or private labels, which are usually priced a good one-third cheaper than the most popular version of the same product sitting right next to the house-brand version on the shelf...

Bag It

Posted on June 05, 2008
Remember Vuitton v. Dooney? It’s over. Reports the Shiny Style blog: A judge ruled in favor of Dooney & Bourke in the trademark dispute involving their “It Bag” monogram . . . and the Louis Vuitton Monograme Multicolore collection...

Sounds good to me!

Posted on June 05, 2008
Hello?  Walter Olson: The patenting of software, in contrast to the patenting of chemical and pharmaceutical compounds, generates relatively high litigation costs and low benefits . . . What’s with the low benefits? It says relatively high litigation costs! What’s not to love? Oh...

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