19
Jul/18

Text of ASTM v Public Resource – DC Circ Decision re Fair Use of Standards Incorporated Into Laws


From the decision: Across a diverse array of commercial and industrial endeavors, from paving roads to building the Internet of Things, private organizations have developed written standards to resolve technical problems, ensure compatibility across products, and promote public safety. These technical works, which authoring organizations copyright upon publication, are typically distributed as voluntary guidelines for self-regulation. Federal, state, and local governments, however, have incorporated by reference thousands of these standards into law. The question in this case is whether private organizations whose standards have been incorporated by reference can invoke copyright and trademark law to prevent the unauthorized copying and distribution of their works. Answering yes, the district court granted partial summary judgment in favor of the private organizations that brought this suit and issued injunctions prohibiting all unauthorized reproduction of their works. In doing so, the court held that, notwithstanding serious constitutional concerns, copyright persists in incorporated standards and that the Copyright Act’s “fair use” defense does not permit wholesale copying in such situations. The court also concluded that the use of the private organizations’ trademarks ran afoul of the Lanham Act and did not satisfy the judicial “nominative fair use” exception. Because the district court erred in its application of both fair use doctrines, we reverse and remand, leaving for another day the far thornier question of whether standards retain their copyright after they are incorporated by reference into law.

 



2
Sep/14

‘DEEP THROAT’ v ‘LINDA LOVELACE’ – (c) and TM Fair Use




24
Oct/11

BIGGEST LOSER v BIGGEST LOSER


Plaintiff owns incontestable rights in THE BIGGEST LOSER.   Defendant fitness club allegedly used the term in promoting its services.

 Complaint Biggest Loser

 

 

 



23
Jul/10

Mix-in's as Grey Goods: Identifying Third-party Ingredients By Brand Names


Defendant bakery identifies branded cookies and candies as toppings for its cakes. Plaintiff See’s Candies alleges that defendant’s ‘manufacture, storage, sales and storage’ processes don’t meet See’s standards, therefore the See’s candies offered are materially different and therefore infringing.
Complaint Sees Aunt Joy



5
Feb/10

My Huffington Post Column On The WHO DAT Dispute


huffpo who dat grab.tiff
Trademark Nation: Who Dat Who Own Who Dat?



6
Oct/09

Statutory Defense re BIG BOY? (Rimshot)


Big Boy statue.jpg
Charleston, West Virginia, was the home of Alex Schoenbaum, founder of the SHONEY’s chain, which had been a BIG BOY franchisee. Charleston put up a statue honering ‘Shoney’ with Big Boy on the top. Big Boy International reportedly protested on trademark grounds. This article quotes me to the extent that if the statue was put up by the town to honor one of its citizens, then it’s likely not use of a trademark in commerce.
Law school fact pattern: What if the community put up the statue on public land across the street from a Shoney’s? And Shoney’s contributed the money to pay for the statue? And contributed the land?
Also: consider if the statue of a (possibly copyrighted) work was commissioned by the town? Or if purchased on the secondary market for Big Boy staues (which apparently exists).



1
Oct/09

Philadelphia Eagles Sue Radio Station For Ticket Giveaways


Radio station gives away Philadelphia Eagles tickets and mentions Eagles in on-air promotions, without authorization. It had also promised Eagles once before not to do this sort of thing. Eagles sue enforcing clauses on back of ticket contract, and on trademark.
Complaint Eagles



21
Sep/09

MACY'S AND CLINTON KELLY MAKE OVER AMERICA v MAKE OVER AMERICA


macy makeover.jpg
makeover america.jpg
Macy’s uses MACY’S AND CLINTON KELLY MAKE OVER AMERICA receive demand letter from owner of registrations for various MAKE OVER marks; files declaratory judgment action.
Consider this case:B & L Sales Associates v H. Daroff & Sons, 421 F.2d 352 (2d Cir 1970) (registered trademark COME ON STRONG v use of COME ON STRONG in ad copy).
Complaint Macy Makeover



16
Sep/09

Weight Watchers Sues Nestle Over Use of Points


Weight-Watchers-Points-Calculator_1.png
Weight Watchers sues Nestle for displaying Weight Watchers ‘Points’ on Nestle products. WW has previously sued Campbell Soup and Tesco on similar theories (background of Campbell suit here and Tesco here) but reportedly settled both matters.
Complaint WW Points



21
Jan/09

Major League Baseball v Donruss


Major League Baseball Properties sues former licensee Don Russ for use of various MLB properties.
Complaint MLB Don Russ Baseball