Text of Updated Antitrust Guidelines for the Licensing of IP

FTC press release on updated Antitrust IP licensing guidelines.

National Law Review comments on updated guidelines for the Licensing of IP.


Transcript of Oral Argument in In Re Tam


In Which I Help Light The World’s Largest Menorah ™

lyo menorah

The Lubavitcher Youth Organization is a social services organization associated with Chabad, a Jewish Hasidic movement. Since 1977, it has organized the lighting of the World’s Largest Menorah ™ in Manhattan at 59th and Fifth. The menorah is 20 cubits tall. A cubit, as we all know, is a biblical unit of measure based on the length from the tip of the middle finger to the elbow. I’m not sure what the going rate is for cubits these days but this menorah is approximately 33.5 feet tall. Dignitaries such as mayors and senators tend to assist the lighting of the menorah on the first night of Chanukah.

A different organization, also associated with the Chabad movement, began organizing lighting ceremonies of a similarly tall menorah in the New York borough of Brooklyn. A rivalry ensued, along with news coverage using the unfortunate but inevitable ‘size matters‘ pun.

This year, the two organizations appeared before a Chabad rabbinical tribunal to resolve the dispute as to who could use the phrase ‘World’s Largest Menorah’ Such a tribunal may consider secular civil law and that’s where I come in. I drafted papers on behalf of LYO, discussing its U.S. common law trademark claim (the phrase and logo is used throughout the year in connection with LYO activities).

LYO prevailed, and as a token of its appreciation, it asked that I helped light the menorah. So, on New Year’s Eve, the last night of Chanukah, I got into the Con Edison cherry picker.

crop harness

The Con Ed guys fitted me out with a safety harness like this one.

view down fifth

The view of Fifth Avenue 33.5 feet up from the top of the menorah was nice, marred only by that dark tower on 56th Street.

crowd shot rev

. . . and one shouldn’t look down at the crowd.

butane cropped

I was handed a lit gas torch. (note to self at the time: does our insurance cover?)

shamash cropped 2

And the shamash (the one used to light the other candles) was lit!

A belated Happy Holidays to you all!

Typical local coverage of the dispute here and here.


$102, which includes $2 for Credit Cards vs. $102, with a $2 Discount for Cash – SCOTUS Oral Argument Transcript

cash credit

From blog post by Jane Yakowitz frames the issue in Expressions Hair Design v. Schneiderman (heard yesterday by SCOTUS) as follows:

Imagine an electronics store in New York needs to recoup $100 on the sale of a television. If the store owner labels the television with a sticker price of “$100 plus $2 for credit card sales” or “$102, which includes $2 for credit card sales,” the owner risks jail time. But if the label reads “$102, with a $2 discount for cash sales,” the store owner is in the clear.

Ultimately, that is what this case is about: the criminalization of truthful commercial speech. New York has enacted a law that prohibits sellers from announcing a surcharge for credit-card sales. This surcharge ban does not mean, however, that sellers must charge identical prices for credit-card sales and cash sales. Instead, New York enforces its surcharge ban by instructing sellers to inflate their normal sticker prices and then announce “discounts” from these prices for cash sales. Sellers must then tread carefully in explaining this situation to inquiring customers in order to avoid referring to a surcharge and thus committing a crime. See id. The most sellers can disclose is a half-truth: that their sticker prices do not apply to those who pay with cash.

The oral argument transcript is below.

Prof Tushnet on the 2d Circuit decision here.

Bonus resource: “Priceless? The Competitive Costs of Credit Card Merchant Restraints” by Adam J. Levitin


Plaintiff Alleges Photo of Her Earned $2.2 Billion for Chipotle and Now She Wants That Money Back

A woman whose picture was taken in a Chipotle Restaurant, has sued Chipotle for displaying the photo without her authorization (and editing in a glass of alcohol in front of her). She seeks $750 in actual damages and another $2.2 billion in punitive damages.

Blurry copy of photo seems to be Exhibit A of Complaint.

Note: This case was transferred to D Colorado.


I’ve Come Here With A View To Asking You To Try Google Translate

I try to read all UDRP decisions in which complaints are rejected, but I have to skip two or three a week because they’re not in English. Today I came across the Spanish-language decision below in which Pernod’s complaint against the registrant for DOMECQ.WINE was rejected. I had read this NY Times article regarding rapid improvements in Google’s translation program (due to advances in artificial intelligence), so I gave translation a try. I was amazed. Read the decision below. There were some ‘errors’ but I definitely understood the case and the holding (Respondent was part of the Domecq family associated with the original brand, so the complaint fails under the second UDRP prong). Granted, I supplied my contextual knowledge to smooth over some ambiguities, but in the context of free and immediate translation, the quality of the translation opens a new world (to me at least)as to accessiblity of foreign language legal resources.

PEOPLE WHO HATE ‘LOVE ACTUALLY’ STOP READING NOW: So I’ve come here with a view to asking you to try Google Translate (it’s built into Chrome). I know I seems an insane person because I hardly knows you but sometimes things are so transparency, they don’t need evidential proof. Of course I don’t expecting you to be as foolish as me, and of course I prediction you say no….


Read This 2009 Letter From McConnell Regarding Confirmation Hearings

Republicans will attempt to hold 5 hearings for cabinet-nominees on Wednesday, even if their ethics reviews have not been completed.

Read McConnell’s 2009 letter on his view regarding the confirmation process.

Politico coverage here.

Politifact commentary on McConnell letter here.


Decker Sues H&M Over UGG Bailey Button Trade Dress


Deckers, owners of the UGG trademark, sues H&M over sale of UGG Bailey Button boot. Prior Bailey button suits here. Definition of Bailey Button trade dress on page 5.


Lombardo v Seuss Enterprises – Fair Use of Grinch?

Playwright sues for damages after copyright complaint by Seuss estate results in cancelation of play. Plaintiff seeks declaration of non infringement (fair use), and damages from tortious interference.

NY Times coverage here.


US Trade Representative Report on Notorious Markets (Bad Guy List)

From the introduction:

The Office of the United States Trade Representative (USTR) has developed the List under the auspices of the annual Special 301 process. USTR solicited comments regarding potential markets to highlight in this year’s List through a Request for Public Comments published in the Federal Register (WWW.REGULATIONS.GOV, Docket Number USTR-2016-0013). The List is based on publicly-available information.

USTR highlights these markets not only because they exemplify global counterfeiting and piracy concerns, but also because the scale of infringing activity in such markets can cause significant economic harm to U.S. intellectual property rights (IPR) holders. Some of the identified markets reportedly host a combination of legitimate and unauthorized activities. Others reportedly exist solely to engage in or facilitate unauthorized activity. The List is not an exhaustive.

The list of bad guys begins on page 7.