$102, which includes $2 for Credit Cards vs. $102, with a $2 Discount for Cash – SCOTUS Oral Argument Transcript

cash credit

From blog post by Jane Yakowitz frames the issue in Expressions Hair Design v. Schneiderman (heard yesterday by SCOTUS) as follows:

Imagine an electronics store in New York needs to recoup $100 on the sale of a television. If the store owner labels the television with a sticker price of “$100 plus $2 for credit card sales” or “$102, which includes $2 for credit card sales,” the owner risks jail time. But if the label reads “$102, with a $2 discount for cash sales,” the store owner is in the clear.

Ultimately, that is what this case is about: the criminalization of truthful commercial speech. New York has enacted a law that prohibits sellers from announcing a surcharge for credit-card sales. This surcharge ban does not mean, however, that sellers must charge identical prices for credit-card sales and cash sales. Instead, New York enforces its surcharge ban by instructing sellers to inflate their normal sticker prices and then announce “discounts” from these prices for cash sales. Sellers must then tread carefully in explaining this situation to inquiring customers in order to avoid referring to a surcharge and thus committing a crime. See id. The most sellers can disclose is a half-truth: that their sticker prices do not apply to those who pay with cash.

The oral argument transcript is below.

Prof Tushnet on the 2d Circuit decision here.

Bonus resource: “Priceless? The Competitive Costs of Credit Card Merchant Restraints” by Adam J. Levitin


Plaintiff Alleges Photo of Her Earned $2.2 Billion for Chipotle and Now She Wants That Money Back

A woman whose picture was taken in a Chipotle Restaurant, has sued Chipotle for displaying the photo without her authorization (and editing in a glass of alcohol in front of her). She seeks $750 in actual damages and another $2.2 billion in punitive damages.

Blurry copy of photo seems to be Exhibit A of Complaint.

Note: This case was transferred to D Colorado.


I’ve Come Here With A View To Asking You To Try Google Translate

I try to read all UDRP decisions in which complaints are rejected, but I have to skip two or three a week because they’re not in English. Today I came across the Spanish-language decision below in which Pernod’s complaint against the registrant for DOMECQ.WINE was rejected. I had read this NY Times article regarding rapid improvements in Google’s translation program (due to advances in artificial intelligence), so I gave translation a try. I was amazed. Read the decision below. There were some ‘errors’ but I definitely understood the case and the holding (Respondent was part of the Domecq family associated with the original brand, so the complaint fails under the second UDRP prong). Granted, I supplied my contextual knowledge to smooth over some ambiguities, but in the context of free and immediate translation, the quality of the translation opens a new world (to me at least)as to accessiblity of foreign language legal resources.

PEOPLE WHO HATE ‘LOVE ACTUALLY’ STOP READING NOW: So I’ve come here with a view to asking you to try Google Translate (it’s built into Chrome). I know I seems an insane person because I hardly knows you but sometimes things are so transparency, they don’t need evidential proof. Of course I don’t expecting you to be as foolish as me, and of course I prediction you say no….


Read This 2009 Letter From McConnell Regarding Confirmation Hearings

Republicans will attempt to hold 5 hearings for cabinet-nominees on Wednesday, even if their ethics reviews have not been completed.

Read McConnell’s 2009 letter on his view regarding the confirmation process.

Politico coverage here.

Politifact commentary on McConnell letter here.


Decker Sues H&M Over UGG Bailey Button Trade Dress


Deckers, owners of the UGG trademark, sues H&M over sale of UGG Bailey Button boot. Prior Bailey button suits here. Definition of Bailey Button trade dress on page 5.


Lombardo v Seuss Enterprises – Fair Use of Grinch?

Playwright sues for damages after copyright complaint by Seuss estate results in cancelation of play. Plaintiff seeks declaration of non infringement (fair use), and damages from tortious interference.

NY Times coverage here.


US Trade Representative Report on Notorious Markets (Bad Guy List)

From the introduction:

The Office of the United States Trade Representative (USTR) has developed the List under the auspices of the annual Special 301 process. USTR solicited comments regarding potential markets to highlight in this year’s List through a Request for Public Comments published in the Federal Register (WWW.REGULATIONS.GOV, Docket Number USTR-2016-0013). The List is based on publicly-available information.

USTR highlights these markets not only because they exemplify global counterfeiting and piracy concerns, but also because the scale of infringing activity in such markets can cause significant economic harm to U.S. intellectual property rights (IPR) holders. Some of the identified markets reportedly host a combination of legitimate and unauthorized activities. Others reportedly exist solely to engage in or facilitate unauthorized activity. The List is not an exhaustive.

The list of bad guys begins on page 7.


Text of 2d Cir Summary Order Dismissing LV Claim re ‘My Other Bag’ Parody



2d Circuit dismisses LV infringement suit re MY OTHER BAG, canvas bag with photo of LV bag on one side, words ‘My Other Bar’ on the other side. Canvas bag is ‘conscious departure’ from LV bag.

Text of lower court decision in LV v My Other Bag.


Your LinkedIn Endorsements May Get You In Trouble


I recently became aware of this opinion of the Ohio Board of Professional Conduct regarding “Client Testimonials in Lawyer Advertising and Online Services” It suggests that lawyers have an obligation to monitor testimonials they publish or allow to be published in social media, which would seem to include endorsements on LinkedIn. In relevant part:

A lawyer may place information about his or her services on a website or online
legal directory. This information is a form of advertisement that a lawyer must ensure
complies with Prof.Cond.R. 7.1 and 7.2. A variety of websites, online legal directories,
and social media permit clients and others to endorse or post a review about a lawyer. A
client typically provides a review on his or her own volition and waives the attorneyclient
privilege as to any information revealed in the review or comment. A lawyer with
an online presence, who is able to control the content of his or her online profile, should
periodically monitor the content of the profile to ensure the communications about the
lawyer or the lawyer’s services comply with Prof.Cond.R. 7.1. False, misleading, or
nonverified testimonials in the form of client comments or endorsements should be
removed by the lawyer when he or she has control over the content of the profile. See
Penn. Adv. Op 2014-300 (2014). Emphasis added.

I have never paid a great deal of attention to my endorsements on LinkedIn, and I worry more about complying with New York law than that of Ohio, but this opinion motivated me to look at my LinkedIn profile and endorsements just now, to see if anything could be thought of as misleading. OK, I don’t do patent prosecution so I deleted those endorsements. ‘Patents’ is a skill of mine if by skill you mean do I have world-class patent partners. One or two endorsements are from people I’ve never worked with (I did not see a method of deleting a specific endorsement). To paraphrase a joke “I love your lawyering, I heard it was great.”

Its always something.

HT Law for Lawyers Blog


Trade Dress Complaint: BULLEIT Whiskey (Diageo) v DR McGILLICUDDY Whiskey

This is Diageo’s BULLEIT RYE Whiskey:


It is sold in a (1) clear (2) canteen-shaped bottle with the trademark in (3) arched (4) embossed lettering above a (5) rectangular label (6) two thirds of the way down the bottle with (7) a divider between the trademark and product descriptor and (8) a border on the label, all intended to (9) evoke the rugged look and feel of the American frontier.

This is Sazerac’s DR. McGILLICUDDY Whiskey:

dr mcguillicuddy

This is Diageo’s trade dress complaint: