The District Court rejects the Lousiana Lt Governor’s suit against MoveOn relating to MoveOn’s parody of a Lousiana tourism slogan to criticize the Governor’s policy on medicare. Background here.
As to the Lt Governor’s argument that under a ‘cat is not in the hat’ theory, MoveOn was improperly borrowing the Lt Governor’s property to criticize someone other than the Lt Gov (namely the Governor), the Court noted in a footnote that ‘it is well established that the property of agency of the state is the property of the State itself.’ So, given that the Governor is the ‘chief policy maker for the state,’ there is a unity between the owner of the parodied work, and the target of the parody.
As to the argument as to who was confused about what, the court concluded that motorists did not understand the billboard to suggest that the state of Lousiana was criticizing the Governor. I’m not sure that’s the confusion that the Lt Gov. was alleging, but when you attack a non-commercial use, it is difficult to articulate a coherent theory of confusion, so it’s not shocking if the court was confused.
Is this suit sanctionable?
Discussion of reasonable hourly rates in the New York market.
A trademark is abandoned if its ‘use in commerce’ has been discontinued with no intent to resume use. The intent to resume use must be formulated without the three years of non-use. Plaintiff ceased use at the end of 2002. It attempted to sell the assets of the business in ’03 and ’04, but that is not trademark use. The website was operational until 2005, but plaintiff could not establish that goods or services were provided though or in connection with the website. Plaintiff two sales efforts in 2007, one a mass mailing, but those efforts were ‘isolated and not sustained.’ It didn’t help that they appear to come about one month after Google’s first use.
Bonus evidentiary point: Plaintiff wanted to enter screenshots from 2005, obtained from an archive service. It was prepared to offer the creator of the webpage itself, but didn’t have testimony from the archive service. Held: screenshots were not properly authenticated.
Decker (owner of the Uggs brnad) claims trade dress and owns a design patent covering its ‘Bailey Button’ style, two versions of which are depicted on top. The Bailey Button style is characterized by: (1) suede boot styling, (2) overlapping of front and rear panels on the lateral side of the boot shaft; (3) curved top edges on the overlapping panels; (4) exposed fleece-type lining edging the overlapping panels and the top of the shaft; and (5) one or more buttons prominently featured on the lateral side of the boot shaft adjacent the overlapping panels.
Decker now sues Walmart for selling allegedly infringing boots. It is not clear to me from the exhibits in the complaint but I believe that the Brinley ‘wood toggle’ style depicted above bottom is one of the complained-of styles.
As I’ve said many times, High Pressure Processing (HPP) is a method of food processing where food is subjected to elevated pressures (up to 87,000 pounds per square inch or approximately 6,000 atmospheres), with or without the addition of heat, to achieve microbial inactivation or to alter the food attributes in order to achieve consumer-desired qualities. Plaintiff operates a chain of stores under the mark EVOLUTION FRESH, which sells juices, and promotes the fact that its juices are made using HPP. Defendant FRESHER EVOLUTION sells HPP equipment.
This page suggests that Urban Tortilla, which sells tortillas in San Francisco Airport, paid $299 for the spiffy U in circle logo above. They have now been sued by the Union of Orthodox Jewish Congregations, owner of the U in circle certification mark that indicates that food is kosher. Among the foods prohibited under the kosher laws are anything that combines dairy and meat, so a cheese and beef burrito is right out.