Salinger Remanded To Apply Ebay MercExchange Test

And there you are. 2d Circuit text of decision reversing the preliminary injunction in the Salinger case here.

After eBay, however, courts must not simply presume irreparable harm. See eBay, 547
U.S. at 393. Rather, plaintiffs must show that, on the facts of their case, the failure to issue an
injunction would actually cause irreparable harm. This is not to say that most copyright
plaintiffs who have shown a likelihood of success on the merits would not be irreparably harmed absent preliminary injunctive relief. As an empirical matter, that may well be the case, and the
historical tendency to issue preliminary injunctions readily in copyright cases may reflect just


Milkcrate v Nike LeBron Soldier II Featuring Milkcrates

nike milkcrate.jpg
Plaintiff owns registrations for MILKCRATE for footwear and apparel. Nike’s LeBron Soldier II basketball shoes were inspired by LeBron playing hoops using a milk rate as a kid, feature a milkcrate’reminiscent design and uses ‘milkcrate technology.’
Complaint Milkcrate v Nike


International Trademark MetaSearch Reborn As TMview

Old-timers will recall that in early 2002, before there was a Trademark Blog, I hosted the International Trademark MetaSearch, which allowed a single search of every online trademark registry at the time. That got too expensive to maintain, and the Metasearch was consigned to the dustbin of history. However, the need for and usefulness of one-stop searching remains. OHIM, in cooperation with various European TM offices, has now unveiled TMview, a single-search tool of the OHIM, Benelux, Czech, Danish, Italian, Portuguese and UK registries.


Another One Of Those Isaac of Nineveh Copyright Decisions

Plaintiff Monastery translated works by St. Isaac the Syrian, also known as Isaac of Nineveh, from Greek into English (the copyright subsists in the derivative work, namely the translation). Archbishop (who had settled a previous case with the Monastery) posted Homily 46 to his website. Archbishop seeks to nullify the prior contract, and also alleges fair use. Archbishop’s ‘devotional’ use of the homily was not transformative, and was not fair use. Note: various homilies are excerpted on the Wikipedia page. Image obtained here.
Decision Holy Transfiguration Copyright


Another One Of Those Passive Website Jurisdiction Cases, This Time In Ohio

Defendant’s website passively listed information and had an 800 number. No personal jurisdiction in Ohio.
Decision Hague Puretech Personal Jurisdiction


GAO Report On Counterfeiting: More Study needed

GAO: Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods

Three widely cited U.S. government estimates of economic losses resulting from counterfeiting cannot be substantiated due to the absence of underlying studies. Generally, the illicit nature of counterfeiting and piracy makes estimating the economic impact of IP infringements extremely difficult, so assumptions must be used to offset the lack of data. Efforts to estimate losses involve assumptions such as the rate at which consumers would substitute counterfeit for legitimate products, which can have enormous impacts on the resulting estimates. Because of the significant differences in types of counterfeited and pirated goods and industries involved, no single method can be used to develop estimates. Each method has limitations, and most experts observed that it is difficult, if not impossible, to quantify the economy-wide impacts. Nonetheless, research in specific industries suggest that the problem is sizeable, which is of particular concern as many U.S. industries are leaders in the creation of intellectual property.


Please Share This On Facebook

cnn fb open graph excerpt.jpg
I logged onto CNN.COM and immediately noticed my friend’s name next to a CNN headline. What? After some confusion, I realized that CNN has installed Facebook’s Open Graph Plug-in. This article will explain it better than I will, but I’ll try any way. My friend must have indicated that she had ‘liked’ a particular article by ‘sharing’ it on FB. CNN allows FB to populate a box on its home page. I logged onto FB and FB was able to tell that one of my friends had liked a CNN article and populated a ‘popular on Facebook’ box with her name and the fact that she had shared the article ((along with other information that was of no interest to me whatsoever, for example 11 thousand people on FB had shared this article).
Now, my friend had voluntarily decided to make this information about her reading habits public to her FB friends, and I would have seen this info anyway the next time I logged onto FB, but somehow I felt a little creeped out by this – as we hurtle ever closer to the scene in ‘Minority Report’ where Tom Cruise is being chased in the shopping mall, and the talking advertisements almost blow his cover.

Filed under: Branding


Scorpion Bowls At The Hong Kong

If the expression ‘Scorpion Bowls at the Hong Kong’ has secondary meaning to you, then contact me and we can plan an expedition there for INTA.


Get Your Hot News Compaint Here

Dow Jones sues under hot news doctrine.
Complaint Dow Jones Hot News


"Planted" Articles About Spoiled Spices Not Actionable Under 43(a)

I agree with 43(B)log: this ‘commercial speech’ case has interesting ramifications wrt ‘anonymous’ plants and false advertising:
The FDA seized one shipment of plaintiff’s product (West Indian spices) because it was tainted. A local newspaper targeting the West Indian community reported on the seizure in an article that ‘reads as if’ it were written by one of plaintiff’s competitors. The implication of the news article is that you should avoid all of plaintiff’s products. One of plaintiff’s competitors distributes the article via email. Plaintiff sues the competitor (and, seemingly, not the newspaper) for defamation and false advertising (alleging that competitor was responsbile for publication of the article in the first place). Competitor moves to dismiss,
Defamation claim upheld on a motion to dismiss. The article’s over-stating of the significance of the seizure (that the public should be suspicious of ALL of plaintiff’s product as a result of one seizure), strips away fair-reporting and truthfulness defenses.
Here’s the interesting part of the decision: The Lanham Act claim was dismissed because the competitor’s name doesn’t appear in connection with the article and therefore doesn’t propose a commercial transaction with competitor, even if the competitor paid the publication to run the article. Even competitor’s email (identifying competitor and inviting discussion) doesn’t propose a commercial transaction. No commercial speech.
So the lesson is: your client’s should pay publications to run articles that slag the competition, just don’t mention client and just steer clear of defamation.
Decision Bedessee Beharry