Discussion of reasonable hourly rates in the New York market.

sub-zero v zub-zero repairsub-zero v zub-zero repair

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A trademark is abandoned if its ‘use in commerce’ has been discontinued with no intent to resume use. The intent to resume use must be formulated without the three years of non-use. Plaintiff ceased use at the end of 2002. It attempted to sell the assets of the business in ’03 and ’04, but that is not trademark use. The website was operational until 2005, but plaintiff could not establish that goods or services were provided though or in connection with the website. Plaintiff two sales efforts in 2007, one a mass mailing, but those efforts were ‘isolated and not sustained.’ It didn’t help that they appear to come about one month after Google’s first use.

Bonus evidentiary point: Plaintiff wanted to enter screenshots from 2005, obtained from an archive service. It was prepared to offer the creator of the webpage itself, but didn’t have testimony from the archive service. Held: screenshots were not properly authenticated.

android v googleandroid v google

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Decker (owner of the Uggs brnad) claims trade dress and owns a design patent covering its ‘Bailey Button’ style, two versions of which are depicted on top. The Bailey Button style is characterized by: (1) suede boot styling, (2) overlapping of front and rear panels on the lateral side of the boot shaft; (3) curved top edges on the overlapping panels; (4) exposed fleece-type lining edging the overlapping panels and the top of the shaft; and (5) one or more buttons prominently featured on the lateral side of the boot shaft adjacent the overlapping panels.

Decker now sues Walmart for selling allegedly infringing boots. It is not clear to me from the exhibits in the complaint but I believe that the Brinley ‘wood toggle’ style depicted above bottom is one of the complained-of styles.

ugg v walmart bailey buttonugg v walmart bailey button

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bad to the bone complaintbad to the bone complaint

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As I’ve said many times, High Pressure Processing (HPP) is a method of food processing where food is subjected to elevated pressures (up to 87,000 pounds per square inch or approximately 6,000 atmospheres), with or without the addition of heat, to achieve microbial inactivation or to alter the food attributes in order to achieve consumer-desired qualities. Plaintiff operates a chain of stores under the mark EVOLUTION FRESH, which sells juices, and promotes the fact that its juices are made using HPP. Defendant FRESHER EVOLUTION sells HPP equipment.

evolution fresh hpp complaintevolution fresh hpp complaint

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This page suggests that Urban Tortilla, which sells tortillas in San Francisco Airport, paid $299 for the spiffy U in circle logo above. They have now been sued by the Union of Orthodox Jewish Congregations, owner of the U in circle certification mark that indicates that food is kosher. Among the foods prohibited under the kosher laws are anything that combines dairy and meat, so a cheese and beef burrito is right out.

urban tortilla memourban tortilla memo

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I’m gonna take her down to Mexico
She said oh no
Guadalajara won’t do

Full lyrics here.

guadalajara v guadalajaraguadalajara v guadalajara

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First, a shout out to Prof Tushnet, of 43(b)log, whose article is cited with approval in this case.

Lexmark manufactures toner cartridges. Cartridges can be re-filled by ‘re-manufacturers’, so Lexmark inserted a microchip that prevented re-use (unless the consumer returned the cartridge to Lexmark). A ‘shrink-wrap’ license prohibited the consumer from submitting the cartridge to re-manufacturers. Static manufactured a chip that allowed re-manufacture of Lexmark cartridges despite the presence of Lexmark’s chip. Lexmark brought various claims against Static. Static brought counterclaims under the false advertising prong of 43(a), alleging that Lexmark made two false statements that injured Static’s business:

1. That consumers were legally obligated to return the cartridges solely to Lexmark; and
2. That Static’s chips were illegal.

Static claimed that it sold fewer chips because as a result of those false statements, consumers purchased fewer re-manufactured cartridges.

Lexmark argued that because Static was not a direct competitor of Lexmark, Static did not have standing under 43(a).

Held: The ‘direct-competitor’ test is rejected. Static properly pled the elements of a Lanham Act false advertising claim. It properly alleged that its injuries were in the zone of interests that 43(a) seeks to protect. It further properly alleged that its injuries were proximately caused by a violation of the statute – namely that the deception of the re-manufacturers caused them to withhold trade from Static (which it will have to establish at trial).

lexmark v staticlexmark v static

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