Russett v. Kellogg Sales Company, No. 7:2021cv08572 – Document 19 (S.D.N.Y. 2022)

Motion to Dismiss all causes, including N.Y. G.B.L. §§ 349 and 350 and related state torts granted:

“The photograph of the fresh half strawberry on the Product’s front label must be viewed in context. No reasonable consumer would see the entire product label, reading the words “Pop-Tarts Whole Grain Frosted Strawberry” alongside a frosted strawberry pop-tart with sprinkles, and reasonably expect that fresh strawberries would be the sole ingredient in the Product.”

Text of decision in Russett v. Kellogg Sales Company:

russett v kellogg sdny MtD strawberry pop tart

From the decision: Defendants’ Motion to Dismiss Plaintiff’s Complaint. filed by BET Productions IV, LLC, ViacomCBS Inc., Black Entertainment Television LLC. For the foregoing reasons, Defendant s’ motion to dismiss is GRANTED IN PART and DENIED IN PART. Plaintiff has adequately stated a claim for copyright infringement and may thus pursue discovery on this claim. Plaintiff has not, however, stated a claim for breach of implied contract. Additionally, the Court dismisses Plaintiff’s quantum meruit and unjust enrichment claims as preempted by federal law. Defendants are directed to file an answer to the Complaint on or before July 11, 2022.

Text of decision in Walkie Check v Viacom, 1:2021cv01214:

walkie check v viacom copyright 12b6 house party

SDNY: Judge Rakoff applies Rogers test to METABIRKIN NFTs. Plaintiff sufficiently pled that use of BIRKINS mark in relation to digital images of MetaBirkins likely clears “artistic relevance” prong. However, Hermes sufficiently pled that defendant’s use may have been explicitly misleading. For example, defendant had referred to the reputation of the BIRKINS mark and his desire to create a metaverse equivalent.

metabirkins decision mtd

 

Plaintiff and Defendant manufacture microphones (pictured above, plaintiff’s on the left). Plaintiff define its trades dress as:

(1) two vertical bars on either side of the microphone with two circular enclosures near the top and bottom, (2) a small portion of the microphone’s mesh protruding above the top circular enclosure, and (3) a threaded adapter with rounded hinges and a tapered bottom containing the microphone’s cord port.

Court finds that plaintiff didn’t show secondary meaning and denies prelim. I am a little puzzled by this discussion, however, after the court notes that plaintiff failed to submit a survey:

“Instead, Audio-Technica repeatedly and emphatically points to writings by online reviewers and commentators that Audio-Technica argues demonstrate a likelihood of confusion. However, these writings support the opposite conclusion at least as much as they support Audio-Technica’s desired conclusion, if not more so. The online reviewers and commentators variously observe that the BX2020 is a “knockoff” or a “clone” of the AT2020 and that it was an “absolutely shameless” copy. (Mot. 8–11.) These reviews indicate that writers and readers understand very well that the AT2020 and the BX2020 are manufactured by different producers, supporting the absence of confusion. See JL Beverage Co. v. Beam, Inc., 899 F. Supp. 2d 991, 1005 (D. Nev. 2012) (finding evidence of consumers noting the goods look alike showed a lack of confusion, as consumers understood the goods were distinct products). No reviewer was under the impression that the two microphones came from the same manufacturer; instead, they were all well aware that the microphones were made by two different manufacturers, and one of the purposes of the reviews was to describe the differences between the two microphones. For these reasons, the online reviews do not demonstrate a likelihood of confusion. ”

First, some of these online reviews might constitute evidence of secondary meaning. Also, an online reviewer, who is knowingly discussing defendant’s product, does not represent a consumer encountering these products in the marketplace.
Text of Audio Technica v Music Tribe, CD Call May 5 2022:

 

 

CIPLA – New Haven, Connecticut: March 30, 2022

Slides:

CIPLA NFT final

ARTISTIC RELEVANCE DECISIONS

Trademark Reporter surveying artistic relevance/ Rogers decisions

TrademarkBlog links to Rogers test decisions

INTA Amicus brief in Bad Spaniels Bad Spaniels -Amicus-Curiae-Brief-of-the-International-Trademark-Association-in-Support-of-Petitioner Bad Spaniels -Amicus-Curiae-Brief-of-the-International-Trademark-Association-in-Support-of-Petitioner

Law Professors amicus brief in Bad Spaniels Prof Tushnet amicus bad spaniels cert

SDNY case on Artistic Relevance: AM General v Activision (call of duty): am general v activision sdny call of duty

Article discussing Bad Spaniels

Discussion of Wild America case – D Colorado modifies the Rogers Test

NFT LEGAL EXPLAINER

Quinn Emmanuel guide

NFT LAWSUITS

Hermes v Rothschild re METABIRKENS

Defendant Rothschild’s memo of law in support of motion to dismiss  hermes def memo of law iso mtd

Sotheby’s Guide to the top 10 Birkins

Nike v StockX complaint: nike v stockx nft complaint sdny

NFT OPEN MARKETPLACES

OpenSea

Nifty Gateway

 

NFT Explainers

Defiant guide to NFTs:

Beginner’s guide to minting NFTs

A16Z NFT CANON

Aidadas v Skechers

Justia Opinion 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.

Court Description: Lanham Act / Preliminary Injunction. The panel affirmed in part and reversed in part the district court’s preliminary injunction prohibiting Skechers USA, Inc., from selling shoes that allegedly infringe and dilute adidas America, Inc.’s Stan Smith trade dress and Three-Stripe mark. Affirming in part, the panel held that the district court did not abuse its discretion in issuing the preliminary injunction as to adidas’s claim the Skechers’s Onix shoe infringed on adidas’s unregistered trade dress of its Stan Smith shoe. The panel concluded that adidas was likely to succeed on the merits of this claim because the trade dress was nonfunctional, the trade dress had acquired secondary meaning, and there was a substantial likelihood of confusion between the parties’ products. In addition, the district court did not clearly err in finding a likelihood of irreparable harm to the Stan Smith. Reversing in part, the panel held that the district court erred in issuing a preliminary injunction as to adidas’s claim that Skechers’s Cross Court shoe infringed and diluted its Three-Stripe mark. The panel held that the district court did not err in finding that adidas showed a likelihood of success on its trademark infringement and trademark dilution claims. Nonetheless, the district court abused its discretion in issuing
Text of adidas v Skechers: adidas v skechers stan smith 9th cir