Burger King franchisee alleges that McDonalds is liable for false advertising in connection with statements made by McDonalds not about Burger King but about McDonalds’ own promotions (which in itself was interesting – it turns out that a company that McDonalds paid to run one of its sweepstakes promotions had embezzled winning game pieces, therefore representations made by McDonalds that its sweepstakes was fair, was false – however McDonalds pled an intervening cause defense).
Anyway: given that the Lanham Act accords standing to any person who believes that they are likely to be damaged by the bad act in 43(a), does the BK franchisee have standing:
11th Circuit: No. There is a five factor test in the 3d Circuit case, Conte Brothers, 165 F.3d 221, 225 (3d Cir. 1998) that weights factor such as proximitiy of the bad act to plaintiff’s harm, the speculativeness of the damages, and possibility of duplicative damages, among other factors, and in this situation, found that the franchisee was too far from the action to have standing.

Phoenix of Broward v. McDonalds, 06-14726 (11th Cir June 22, 2007).
HT IP Law Chat.

A very long list of things to do for brand protection on the Internet, written by Erik Heels. This is a very comprehensive list – and as I read it, I think of the inhouse departments that feel that they don’t have the resources for the ‘gotta haves,’ let along the ‘nice to haves.’ So I wonder: what are your thoughts about prioritizing the items on this list?

kwik e mart.jpg
“Simpsons Get Real-Life ‘Kwik-e-Marts”
“The Fox/7-Eleven deal is an example of a practice called reverse product placement. Instead of just putting products prominently in a movie or TV show, fake goods move from the screen to reality.”
Wiki entry on Kwik-E-Mart.

Australian Duff Beer case.
Albuquerque Isotope dispute here.
Famous products that don’t exist here.

OSN: “Bausch & Lomb files lawsuit against Alcon alleging false advertising”
“Bausch & Lomb has filed a lawsuit against Alcon, alleging that it made false advertising claims about Bausch & Lomb’s contact lens solution, ReNu MultiPlus. The company seeks an injunction against Alcon’s advertising campaign and damages for loss of sales due to the campaign, according to a press release from B&L.”

Following on the heels of Site Pro-1 v. Better Metal, the Eastern District of NY has again held that neither use purchase of a keyword nor use of a competitor’s trademark in a meta-tag, rises to use of a trademark. Congratulations to my Moses and Singer colleague David Rabinowitz, who successsfully represented defendant.
Copy of decision in FragranceNet .com v. FrangranceX.com here.
Prof Goldman analysis here on why the Second Circuit has become a pro-defendant forum in search engine cases.

Prof Goldman: “Google Sued in Domainer Lawsuit — Vulcan Golf v. Google:
“Domainer litigation is heating up, and this lawsuit may be the most ambitious anti-domainer lawsuit to date. First, it is a putative class action lawsuit. Second, in addition to naming four leading domainer firms, the plaintiffs provocatively go after Google for providing ads to domainer sites. I believe this is the first lawsuit against Google for its domainer relationships.
The complaint itself is a 121 page, 638 paragraph (with one paragraph enumerating 47 defined terms), 4.3MB behemoth alleging trademark infringement and dilution, ACPA violations, RICO and other claims.”

Balkinization on the BongHits 4 Jesus decision:
“Roberts’ opinion creates a new rule allowing schools to ban student advocacy of illegal drug use– but this rule would apparently not extend to student advocacy of changing the drug laws. (Which raises the obvious question: How can we tell whether “Bong Hits 4 Jesus” is advocacy of illegality, political advocacy of drug liberalization, or just a joke?”