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Lifeguard Licensing sues Ralph Lauren for use of LIFEGUARD mark on apparel.
Bonus trivia: Name the band that sang:
Hardly any clothes (lifeguard)
Sand between my toes (lifeguard)
White stuff on my nose
And what was the only station to play that song? 92.7 WLIR. You’d put the Milky Way bars in the freezer the night before. You had to get to Jones Beach before 10 or you’d be stuck in traffic (this would be before you knew someone with a Fire Island share). You’d listen to WLIR play The Waitresses (or Soft Cell). Sunscreen came in SPFs 2 through 8. You left the beach by 2, or you’d be stuck in traffic. Then that night you’d go to The City, perhaps to hear The Waitresses at CBGB (or back to Jones Beach to hear a concert or one of those concerts on the pier in The City). And you could have three slices of pizza at 1 AM.
Complaint Lifeguard

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Coke’s POWERADE brand sports drink was contemplating how to take market share from segment leader Pepsi’s GATORADE product. It decided to tout the addition of calcium, magnesium and potassium. It ran a campaign describing these minerals as ‘critical’, describing POWERADE as ‘complete,’ describing GATORADE as ‘incomplete’ alongside a depiction of half a GATORADE bottle (pictured above is the cover of ESPN magazine containing a fold-out ad – the cover says ‘you wouldn’t settle for an incomplete cover’ and then folding out to contain the POWERADE ‘incomplete’ ad).
Interestingly, Pepsi had intended to pursue a similar strategy, but ran into a problem sourcing sufficient calcium. It then removed references on its website to calcium as being beneficial. (Ed Note: I would be interested if anyone has scoop on why the worldwide calcium shortage affected Pepsi but not Coke).
So Pepsi sues in the ‘complete vs incomplete’ claims, the ‘critical’ claims, use of the slogan ‘UPGRADE YOUR FORMULA, UPGRADE YOUR GAME,’ and the half a bottle depiction.
The campaign began in late March, Pepsi sued on April 13, Coke pulled some of the ads in late May (after the campaign ran its intended 60 days). Pulling the ads mooted some of the claims, including the half a bottle one, which is too bad from my point of view, because I’m interested in post-Federal Dilution Act analyses of ‘scared john deere’ type claims.
The SDNY rejects’ Pepsi’s motion for preliminary injunction on straight-forward grounds. “Complete’ and ‘critical’ are the sort of vague types of puffery that we expose ourselves too all the time. The Court notkes that Coke was sophomoric and boorish, but not deceptive. As for ‘UPGRADE YORU GAME;’ the Court notes:

No reasonable consumer, having read the slogan, would be justified in believing that it would actually result in improved athletic abilities such as playing a better game of basketball.

Ha! Take a look at who Pepsi and Coke pay to endorse the product. Look at the ads. Spend time with thirteen year old boys. These products thrive on unreasonable consumers relying on unjustified beliefs.
Beverage industry commentary here.
Duets Blog commentary here.
43(B)log commentary here.
Decision Stokely

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WSJ: “Tide Turns ‘Basic’ for P&G in Slump“:

In a subsequent meeting with Tide marketers, the packaging discussion focused on whether to abandon Tide’s trademark orange. Shoppers on average spend 45 to 60 seconds in the laundry aisle, devoting just seven seconds to choosing a product, making color a crucial guide for finding the right product, P&G research found.
The group considered yellow and blue, the other colors of Tide’s famous bull’s eye. A handful of other laundry brands used blue but few had yellow. “People kept insisting, ‘Tide isn’t yellow,'” says Mr. Tosolini. “But then we thought maybe it could discourage current Tide users, which is what we wanted.”

Virginia defendant operates a website that allows listeners to listen to music, create playlists and to download ringtones. Site is advertiser-sponsored and targeted at the Indian non-resident population. NY plaintiff sues in NY. It has no specific allegations of sales or other contacts with NY, but makes inferential arguments based on fact that 15% of Indians living in the US live in NY state.
Court applies three level active/passive test and finds that defendant’s site is in the middle – not fully interactive because it does not transact traditional business over the Interent because it neither sells goods or services through its website nor charges membership fees (Ed. note: I assume that if defendant charged for ringtones, that would be a traditional business, but here it distributes ringtones on an advertiser supported basis). Here there was no evidence that NY residents engaged in downloading materials from the website.
Of interest was the fact that Plaintiff was denied the opportunity to take expedited discovery relating to jurisdiction as plaintiff failed to allege any plausible basis for finding jurisdiction, nor did it identify any particular facts it would seek to adduce through discovery (Ed. note: defendant’s list of registered members?? Download logs??).
Motion to dismiss for lack of personal jurisdiction granted.
Decision Dishant

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The Heisman Trophy Trust prevails on summary judgement that defendant breached prior settlement agreement not to distribute confusingly similar HEISMAN TROPHY shirts. Decision discusses HE IS the MAN shirts but I can’t confirm that the design illustrated above was part of the suit.
Question for discussion: Where the name of an award is trademarked (HEISMAN, OSCAR, GOLDEN GLOBE) to what extent can third parties make fair use in advocating candidates?
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