43(B)log

FEBRUARY 24, 2023

Be willing to let go of shorthands: LOC is probably not a useful concept for what TM is actually doing now; so too with distinctiveness and source identification in a world of licensing and outsourcing and merchandising. But the test doesn’t say 1A every time; you just use the test. Ramsey: do it w/broad fair use/general rules.

Trademark 69

Trademark False Advertising Fair Use Brands 69

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.

False Advertising 45

False Advertising Advertising Advertising Copying 45

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.

False Advertising 49

False Advertising Social Media Advertising Advertising 49

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.

Fair Use 45

Fair Use Brands Branding Branding 45

43(B)log

FEBRUARY 18, 2022

A: False advertising context: FTC/state AGs. Tyler Ochoa: Zombie imagery suggests a mark that is actually dead that nonetheless wants to feast on the living who want to use it—which is the opposite of your argument. Ives introduced the idea of functional color but didn’t give us a full definition. Where does it stop?

Trademark 45

Trademark False Advertising Fair Use Brands 45

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.

Social Media 40

Social Media Fair Use Advertising Advertising 40

SpicyIP

DECEMBER 30, 2023

This will potentially impact the copyright licensing landscape insofar as filmmakers will have to enter into dedicated agreements to claim protection for works not listed within the scope of Section 17. Microsoft Technology Licensing v. the licensee. The judgement was authored by Justice C. Telefonaktiebolaget LM Ericsson (PUBL) v.

IP 124

IP Copyright Trademark Intellectual Property 124

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.

Trademark 59

Trademark Fair Use Registration False Advertising 59

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)

Trademark 72

Trademark Marketing Marketing Advertising 72

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. May 20, 2021) (R&R) renting existing equipment; Pine was formerly one of Proactive’s licensed distributors for the pumps.

IP 94

IP Trademark Advertising Advertising 94