The IP Law Blog

DECEMBER 29, 2023

3: What Now for Fair Use After Warhol v. Goldsmith that Andy Warhol’s portrait of music legend Prince did not qualify as fair use under copyright law. As we look back, we want to share The Briefing’s most popular episodes in 2023. Goldsmith The U.S. Supreme Court ruled in Andy Warhol Foundation v.

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False Advertising Intellectual Property Fair Use Music 62

LexBlog IP

DECEMBER 29, 2023

3: What Now for Fair Use After Warhol v. Goldsmith that Andy Warhol’s portrait of music legend Prince did not qualify as fair use under copyright law. As we look back, we want to share The Briefing’s most popular episodes in 2023. Goldsmith The U.S. Supreme Court ruled in Andy Warhol Foundation v.

False Advertising 52

False Advertising Intellectual Property Fair Use Music 52

Copyright Lately

MARCH 31, 2024

Atari asserts claims not only for copyright infringement but also “business disparagement,” unfair competition and false advertising as well. Fair Use Fair use would typically be the other go-to defense in a case like Atari Interactive v.

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Copyright Fair Use Social Media Artwork 78

43(B)log

MAY 19, 2023

Defendants allegedly marketed the My Avastars dolls with a “code” that could be used in the Roblox platform. The court also found that the alleged use of the Roblox name was not, as a matter of law, nominative fair use.

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43(B)log

NOVEMBER 1, 2022

The court, unfortunately, misapplies nominative fair use, reasoning that “[i]n this case, however, plaintiff alleges that defendants are using plaintiff’s trademark to refer to defendants’ goods or services. False advertising: Sufficiently pled, despite Shkipin’s argument that his reviews were not commercial speech.

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43(B)log

SEPTEMBER 7, 2021

She allegedly falsely represented that she was authorized to deliver Londra’s “recording artist and songwriting services. Big Ligas sued for tortious interference and for false advertising and trademark infringement under the Lanham Act. False advertising: “That Ms.

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False Advertising Fair Use Advertising Advertising 59

IPilogue

JUNE 21, 2022

StockX also claimed their resale methods are protected by the first sale doctrine and their use of Nike products tied to NFTs are descriptive fair use and/or nominative fair use. In addition to the previous causes of action, Nike has asked the court to add counterfeiting and false advertising claims against StockX.

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Non-Fungible Tokens Ownership False Advertising Fair Use 116

43(B)log

FEBRUARY 3, 2024

Mary Katherine Amerine, Reasonably Careless Consumers in TM & False Advertising How do courts treat consumers in TM and false advertising cases? False advertising uses v different framework: consider the challenged ad as a whole, including disclaimers and qualifying language. Dougies for diapers.

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Erik K Pelton

DECEMBER 20, 2022

which will determine the scope of the Lanham Act as applied to trademark infringement that occurs outside the US. The Court has also agreed to hear a patent case this term, and it will rule on a copyright fair-use case brought by the Andy Warhol Foundation for the Visual Arts that was heard this fall. Queen of Christmas.

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43(B)log

MAY 2, 2022

28, 2022) Chanel sued What Goes Around Comes Around (WGACA), alleging trademark infringement, false advertising, false association/endorsement, and related NY GBL claims for deceptive/unfair trade practices and false advertising. Nominative fair use factors: Also for a factfinder. 2253 (LLS) (S.D.N.Y.

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43(B)log

APRIL 15, 2024

Appellee I Dig Texas tried to appeal to consumers’ preference for American-made products; it used Creager’s photographs of its China-made Montana Post Drivers as part of its advertising. Rather than ruling on fair use, the court reached the alternative ground of lack of any nexus to damage, which was fully briefed below.

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The IPKat

MARCH 7, 2024

Setting aside copyright implications, the authors managed to succinctly encapsulate the entire issue of upcycling in the following 49 words: Under current IP rules, upcycling could constitute trademark infringement, trademark dilution, tarnishment, false advertising, and unfair competition.

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Intellectual Property False Advertising Settlement Editing 57

DuetsBlog

OCTOBER 5, 2020

Hearty thanks to Colette Durst , Stephen Lee , and Susan Perera , for generously sharing their insights and perspectives about trademark nominative fair use. In case you missed it, here is my Trademark Nominative Fair Use of Another’s Logo post from March, leading up to the 2020 AIPLA Annual Spring Meeting.

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Fair Use IP Trademark False Advertising 59

43(B)log

AUGUST 26, 2022

24, 2022) This seems like a silly result to me, shifting the burden to comparative advertisers, but it's often much harder to get summary judgment in a trademark case than in comparable cases. PennEngineering claims a PEM family of marks and sued Peninsula for trademark infringement, counterfeiting, false advertising, and unfair competition.

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43(B)log

FEBRUARY 18, 2022

A: False advertising context: FTC/state AGs. But using yellow for a saccharin packet might be false advertising, b/c it would communicate the presence of sucralose rather than saccharin. Ives introduced the idea of functional color but didn’t give us a full definition. Might also be a third type of fair use.

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43(B)log

MAY 22, 2023

May 19, 2023) Whereas the timeshare false advertising cases might be making law largely applicable to other timeshare cases, what’s going on in the strip club advertising cases might have somewhat broader implications. The district court concluded that plaintiffs’ false endorsement claims were foreclosed by Electra v.

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Social Media False Advertising Advertising Advertising 49

IP and Legal Filings

APRIL 28, 2022

Tiffany filed the present application against Costco two months after it stopped using the “Tiffany” mark in the District Court for the Southern District of New York, alleging trademark infringement, counterfeiting false advertising among other things.

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SpicyIP

OCTOBER 27, 2023

These patterns can intersect with the trademark and other intellectual property (IP) in various ways, although it’s important to note that the use of dark patterns is unethical and often violates principles of fair use and consumer protection.

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43(B)log

FEBRUARY 16, 2024

Static Controls in 2012, a Lanham Act false advertising case, the Court gave us two more principles for interpreting section 43: a statutory cause of action extends only to plaintiffs whose interests “fall within the zone of interests protected by the law invoked.” None of those were branding uses. Then, in Lexmark v.

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Trademark Fair Use Registration False Advertising 59

43(B)log

FEBRUARY 24, 2024

Can enshrine things like notice & takedown in © law, but that has effects on the ability to assert fair use. We know that automated systems designed to flag infringements get lots of false positives b/c they can’t recognize fair use; may also be false negatives, though that’s not the focus.

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43(B)log

JANUARY 19, 2022

Grimaldi and nominative fair use support this result, the deeper core is that the Lanham Act shouldn't be read to cover noncommercial speech in the first place. Although doctrines like Rogers v.

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Fair Use Trademark False Advertising Advertising 59

43(B)log

OCTOBER 11, 2021

Both sides now claim the other is liable for false advertising, among other claims.” Defendants also allegedly infringed RCI’s trademarks by using photographs of Roberto Coin jewelry and RCI’s logo in Kings Stone’s advertising after RCI terminated the relationship. And yes even borsheims has to be held accountable.”

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43(B)log

MARCH 10, 2023

Both copyright and false advertising claims (based on Sports Mall’s disparagement of eBay sellers as unreliable) survived a motion to dismiss, but the false advertising claim can’t make it past summary judgment, while Krikor received partial summary judgment on the copyright claim. Nor was the use of the photos fair use.

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43(B)log

JULY 21, 2023

but also narrows the issues somewhat; the larger infringement, cybersquatting, and false advertising claims can’t be resolved on summary judgment. Even if they were generic uses, two articles and one opinion weren’t sufficient to overcome the “strong presumption” of validity of a registered mark. But is it a nominative fair use?

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43(B)log

FEBRUARY 3, 2024

Allowed producers to control coffee machines by putting software in them; can prevent use, resale, using unsupported coffee. In fair use, 3 of 4 factors center on the copyrighted work, while the first attends to the use, but not to the policy implications of the use or the moral/political status of the user.

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Privacy Fair Use Fanworks Government 59

43(B)log

NOVEMBER 8, 2023

Malwarebytes, which allowed a false advertising claim to proceed based on one software provider’s use of the terms “malicious” and “threat” to describe its alleged competitor’s software, despite a dissent raising free speech arguments. Then I’ll talk about the 9 th Circuit case Enigma Software v.

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43(B)log

AUGUST 3, 2023

Matthew Sag, Copyright Safety for Generative AI Not addressing whether training is always fair use in every circumstance; explain how generative AI fits w/in existing law (nonexpressive uses) and identify best practices to make generative AI fairer. Implications: too much memorization undermines arguments in favor of fair use.

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Social Media Fair Use Advertising Advertising 52

LexBlog IP

FEBRUARY 1, 2023

VIP Products, on the other hand, argued that their toy was protected under the doctrine of “fair use” as it was being used in a non-trademark sense, and that it was not likely to cause confusion among consumers. ” Id. In VIP Products v. Jack Daniels Products , 953 F.3d 3d 1170 , 1172 (9 th Cir.

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Trademark Intellectual Property Branding Brands 52

SpicyIP

DECEMBER 30, 2023

These guidelines target practices such as false urgency, basket sneaking, subscription traps, confirm shaming, forced actions, nagging, interface interference, bait and switch, hidden costs, and disguised ads. d) Other IP Developments 1. Acko General Insurance. Delhi High Court passed an interesting order in Anubhav Jain v.

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IP Copyright Trademark Intellectual Property 124

43(B)log

FEBRUARY 25, 2023

Discussant: Mark Lemley Maybe corpus linguistics can help w/things like descriptiveness and nominative fair use, though skeptical about confusion or fame (b/c you need a standard). 3) double identity and advertising: note that in the US comparisons for house brands are often made on the bottle or package! (4)

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43(B)log

FEBRUARY 24, 2023

Every time a court uses Rogers, it’s covertly holding that it would be unconstitutional to apply a broader set of rights; we’re tailoring the test with this in mind. But the test doesn’t say 1A every time; you just use the test. Ramsey: do it w/broad fair use/general rules.

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Trademark False Advertising Fair Use Branding 69

43(B)log

OCTOBER 4, 2021

For about a decade, courts had realized that IIC had gone way too far, and had expanded liability in ways that didn’t protect consumers and facilitated anticompetitive claims about false advertising. It then sued the City for this Instagram post, alleging that it would cause confusion about affiliation or sponsorship.

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