Barbour Brings SDNY DJ Action Against Levis re Shirt Flag Tab

Barbour, a UK apparel company, sells shirts with a ‘flag’ on the breast pocket:

Levis sells apparel which has ‘tabs’ on the pockets.  It owns various registrations for the tab.

Levis aggressively polices its tab trademarks.  It sent a demand letter to Barbour, alleging infringement and dilution.  Barbour brought a DJ action. Barbour notes third-party use of tabs.


Disclosure: I have a heavy cable-knit Barbour sweater which is over twenty years old, and a more recently-purchased Barbour wind-breaker.




Applying Lexmark, ED Pa. Holds 43(a)(1)(A) Claim May Be Brought Against Competitor But Not Competitor’s Customers

Plaintiff extracts spring water. One defendant allegedly extracts well water, which it misrepresents as spring water to other defendants, who are bottlers, and who also misrepresent the water as spring water.

Applying Lexmark, court holds that bottler defendants’ alleged false statements do not proximately injury plaintiff (as opposed to the false statements by extractor defendant,  a competitor of plaintiff, which statements could proximately injure plaintiff).

43(B)log discussion here.


Text of SDNY Decision in Knight Institute v Trump (Twitter Blocking Case)

Plaintiff Knight Institute’s summary of issues in lawsuit:

The Knight First Amendment Institute filed suit in the Southern District of New York contending that President Trump and his communications team violated the First Amendment by blocking seven people from the @realDonaldTrump Twitter account because they criticized the president or his policies.

The suit argues that the @realDonaldTrump account is a “public forum” under the First Amendment, meaning that the government cannot exclude people from it simply because of their views. It also argues that the White House is violating the seven individual plaintiffs’ First Amendment right to petition their government for redress of grievances. Finally, the lawsuit argues that by altering the @realDonaldTrump public forum, it is violating the rights of people who have not been blocked — such as the Knight Institute, another plaintiff in the case — who must now participate in a forum that has been purged of many critical voices. 

At summary judgment, Judge Buchwald ruled that the president violated the First Amendment by blocking access to the @realdonaldtrump Twitter to several of plaintiffs, based on their  political views.


False Advertising Suit by LegalForce Against Trademark Filing Firm TM411 Dismissed

Law firm LegalForce RAPC is the largest filer of trademarks in the U.S.. It has filed several lawsuits against document preparation services, generally premised on the allegation that these firms are engaged in the unlicensed practice of law.

In this action against document preparation service TM411, LegalForce’s false advertising claim was dismissed as it insufficiently plead facts that various statements on TM411’s website would mislead consumers. With the federal claim out, the Court dismissed the remaining state unfair competition claims as well.

43blog discussion here.


Text of 9th Circuit Decision in adidas v Skechers (three stripes)

Justia summary: Skechers challenged the district court’s issuance of a preliminary injunction prohibiting it from selling shoes that allegedly infringe and dilute adidas America, Inc.’s Stan Smith trade dress and Three-Stripe trademark. The panel affirmed in part, holding that the district court did not abuse its discretion in issuing the preliminary injunction as to adidas’s claim that Skechers’s Onix shoe infringes on adidas’s unregistered trade dress of its Stan Smith shoe. However, the panel reversed in part, holding that the district court erred in issuing a preliminary injunction as to adidas’s claim that Skechers’s Cross Court shoe infringes and dilutes its Three-Stripe mark.


Text of SDNY Alibaba v Alibabacoin decision

Alibaba fails to show that defendant promoting ALIBABACOIN crypto-currency, has minimum contacts with NY.


10,000 Dead Bugs and All Similarly Situated

My colleagues Mel Garner, Rob Isackson, Lauren Emerson and I co-authored an amicus brief on behalf of the New York IP Law Association, filed in a Federal Circuit appea, Syngenta v Willowood. We argued that FIFRA, the Federal Insecticide, Fungicide and Rodenticide Act, does not preclude application of the Copyright Act, and thus a copyright claim could conceivably be brought against a pesticide label. We attached illustrations of potentially original, distinctive ways of rendering dead bugs.


Text of Decision in SDNY Cybersquatting Gripe Site case: McAllister Olivarius v McAllisterOlivariusTruth.com

Law firm McAllister Olivarius sues a client for unpaid bills. Client registers the domain name McallisterOlivariusTruth.com. Law firm sues for cybersquatting. Client moves to dismiss. Motion to dismiss denied.


NY Court Of Appeals: Modern Beach-Going Young Woman Not Identifiable As Lindsay Lohan

Lohan v Take-Two Interactive:

Lindsay Lohan’s New York right of publicity suit against the publishers of Grand Theft Auto, arising from use of avatar Lohan asserted was a ‘portrait’ of her, dismissed by NY Court of Appeals:

“.. . we conclude that the amended complaint was properly dismissed because the
artistic renderings are indistinct, satirical representations of the style, look, and persona of
a modern, beach-going young woman that are not reasonably identifiable as plaintiff . . .”

lower court decision here.


Match v Bumble re TINDER

the history of swiping left and swiping right detailed.