Smuckers asserts trade dress rights in its gingham pattern on lids and packaging. It alleges that Nestles is selling baby food with gingham lids in Puerto Rico. See page 9 of complaint for photos of Nestle products in question.
Plaintiff owns registrations for POQUITO MAS and -MAS variant trademarks. Taco Bell allegedly approached plaintiff for a consent to use LIVE A LITTLE MAS, and was rejected. Then Taco Bell adopted LIVE MAS.
When I skim lists of newly filed suits, I look out for situations where the defendants are well-known established companies. Most tend to be declaratory judgment situations (which in themselves are more interesting than the ‘normal’ infringement suit. Some tend to be interesting for miscellaneous reasons. This is the latter.
Cabela’s operates a large chain of outdoor-recreation stores. Plaintiff owns registrations for GANDER MOUNTAIN and sued Cabela’s. The first count, cybersquatting, alleges that Cabela’s registered GanderMountainCatalog.com and GanderCatalog.com in violation of plaintiff’s rights.
Well that’s an odd thing for a reputable company to do.
Now read this backgrounder.
OK – what do you guys think? There is a school of thought that you identify the elephants in the room first, so that your opponent doesn’t get first crack at defining it. What arguments favor plaintiff’s approach in this complaint?
Buttner v RD Palmer, NDNY, November27, 2013: Plaintiff alleges copyright infringement, as well as unjust enrichment. Discussion of relationship between federal copyright act and NY state business torts, as well as discussion of punitive and statutory damages under the Copyright Act.
My colleagues Yuval Marcus and Cameron Reuber successfully represented Defendant Marshak before the Ninth Circuit, which reversed the grant of a preliminary injunction.
Defendant had sold US-manufactured BOSE home theater systems in the UK. Bose sued in the UK, the parties signed a world-wide settlement agreement. Defendant allegedly continued to sell in Australia. Bose sues in Boston. Defendant makes some (imho) not well-taken arguments against the enforceability of the agreement. Defendant also argues that the $50k per incident liquidated damage clause was unconscionable. 1st Circ: $50k is proportionate to the damages from an infringing sale of a $6500 product, when considering legal fees, etc.
Interesting question: defendant apparently purchased the items in the US, and shipped to Australia. Which country’s trademark laws should apply?
Short note on the extraterritorial effect of the Lanham Act here.
Plaintiff alleges that it uses the mark HANGINGOUT for a mobile video app. Google adopted GOOGLE HANGOUTS for a mobile video app at a later date. Drafting pointer: It’s advisable, when alleging trademark infringement, to have a straightforward allegation such as “Plaintiff uses the Mark in interstate commerce, and has made such use prior to Defendant.” This complaint doesn’t have such an allegation (or I missed it the three times I looked for one). The complaint does allege that plaintiff owns a pending use-based trademark application. The App Store does carry plaintiff’s app, and indicates that the app was listed prior to Google’s alleged adoption. The absence of a clear-cut allegation of trademark use raised questions as I read the complaint – don’t raise questions in your readers’ minds unnecessarily.
Here’s an interesting fact pattern. Who is the source of the jewelry pictured above? This jeweler. Jewelry companies purchase luxury clothes and ‘re-purpose’ the buttons (bearing the logo) into jewelry, and sell them on sites like this one. Val Colbert has brought a DJ action against Chanel.
Here is a post from Prof Goldman’s blog on the First Sale doctrine with several useful links.
The button designs might be copyrightable, too. If you’re so inclined, you can begin your reading with Lee v A.R.T.
Plaintiff sells amusement park rides. Above we see two of plaintiff’s rides, JUMP AROUND and the SAMBA BALLOON. Plaintiff accuses defendant of copying its trade dress (as well as advertising materials). Plaintiff has previously obtained an injunction against Defendant.