How A Trademark Lawyer Sees The Chelsea-Arsenal Pre-Game Show

credit: DB Schwimmer


I’m Not Saying Defendant’s A Gold Digger: Seeking Arrangement Sues RichMeetBeautiuful

Reflex Media operates online dating websites such as SEEKING ARRANGEMENT.  Seeking Arrangement uses the term ‘Sugar Daddies’ to describe its target customers.  Its taglines RELATIONSHIPS ON YOUR TERMS and MUTUALLY BENEFICIAL RELATIONSHIPS are part of its coy branding.

Defendant RichMeetBeautiful (hmmm, a little too-on-the-nose) allegedly used plaintiff’s taglines, but also copied various profile descriptions.


Ninth Circuit: Stevens v Corelogic – Defendant’s Intent re Removal of (C) Management Info

Justia opinion summary:

The Ninth Circuit affirmed the district court’s grant of summary judgment for CoreLogic in an action brought under the Digital Millennium Copyright Act. Plaintiffs, professional real estate photographers, alleged that CoreLogic removed copyright management information from their photographs and distributed their photographs with the copyright management information removed, in violation of 17 U.S.C. 1202(b)(1)–(3).

The panel held that section 1202(b) requires an affirmative showing that the defendant knew the prohibited act would induce, enable, facilitate, or conceal infringement.

In this case, plaintiffs failed to make the required affirmative showing because they failed to produce evidence showing that CoreLogic knew its software carried even a substantial risk of inducing, enabling, facilitating, or concealing infringement, let alone a pattern or probability of such a connection to infringement.

The panel affirmed the district court’s denial of plaintiffs’ discovery request and the award of fees.


The History of the World As Told Through Canned Food Brands

The ability to preserve food in cans had a profound effect on our diet and our economy.  For one thing, it gave birth to the can-opener industry.  Also, it provided variety to our diet, and, in the belief of the founder of Borden’s, helped mitigate cannibalism.

Nicholas Appert, a French national, developed a process for vacuum-packed hermetically sealed jars for food, by 1809 (an Appert Canning jar above).  This is a logo mark registered by the Underwood company to commemorate him.

Alpert’s method was kept a secret, however by 1830, William Underwood had duplicated the technique, and switched from glass jars to tin cans.  He obtained what some claim is the first U.S. registered trademark for deviled ham.

and looks like this today:


This is one registered version of the early design:


Gail Borden was another early entrepreneur in canned food.  Reportedly shocked by the cannibalism in the Donner Party disaster of 1846, he set about developing methods of condensing food.  And so he developed condensed milk, which was patented in 1856.  Here is an early logo:

which you can still buy:


The Civil War provided a market for canned food.  Joining these pioneers were Van Camp, which, before it sold Gatorade, sold pork and beans.


It also branched into canned tuna:


And providing the ready-made sauce for these canned foods was Lea & Perrins:

And for the do-it-yourself crowd, the Mason Jar was invented in 1859 by John Landis Mason.  However the best known trademark in Mason Jars today is Ball:


This blog post is a work in progress, and was inspired by The Rise and Fall of American Growth by Robert J. Gordon



2nd Cir: Excelled Sheepskin v Oregon Brewery re ROGUE for Clothing

Justia Summary:

OBC appealed the district court’s grant of summary judgment for Excelled in a trademark dispute over use of the brand-name ROGUE on t-shirts. The Second Circuit held that Excelled failed to show entitlement to summary judgment dismissing OBC’s trademark infringement counterclaims. In this case, Excelled failed to meet its burden of proving that OBC’s delay in bringing suit was unreasonable and caused prejudice to Excelled. Therefore, the court vacated the district court’s grant of summary judgment to Excelled, dismissing OBC’s counterclaims, alleging trademark infringement, false designation, and unfair competition. The court reversed the district court’s grant of summary judgment to Excelled on its infringement claims and the district court’s denial of OBC’s motion for summary judgment dismissing these claims. The court also reversed the award of injunctive relief and damages and fees against OBC. Finally, the court vacated the district court’s grant of summary judgment to Excelled on OBC’s trademark cancellation counterclaim because the district court erroneously relied on determinations of disputed facts about the continuity of Excelled’s sales that usurped the province of the jury.


Beijing Diaper Company Sues Chinese eCommerce App PINDUODUO In SDNY On Eve of IPO

Pinduoduo is a fast-growing Chinese eCommerce app.  It filed a Form F-1 to start the IPO process in the U.S. on July 16.  Chinese diaper company Beijing Daddy’s Choice  sued Pinduoduo Friday in the Southern District of New York,, alleging trademark infringement arising from PinDuoDUo’s allegedly allowing the sale of infringing PADDY’S CHOICE Diapers on the app, with the knowledge that such infringing diapers are sold into the U.S.

NY Times coverage here.



Chronicled Brand Protection


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.



Lemley: The Modern Lanham Act and the Death of Common Sense

The Modern Lanham Act and the Death of Common Sense

Abstract: Trademark law has expanded dramatically in the last fifty years, with a number of trends combining to give trademark owners something they have never had before–protection of marks akin to the protection given real property. Professor Lemley evaluates these changes, and suggests that they are not supported by the economic learning on the functions of trademarks and advertising. He argues that many of these legal developments are unwarranted, particularly the cases which give trademark owners power to prevent political and social commentary, or to own the trademark as a thing in itself.


“Rewriting Racist Headlines” – Video On ‘Framing’ The News