tag:blogger.com,1999:blog-5764290.comments2024-03-18T07:00:59.438-04:00Rebecca Tushnet's 43(B)logUnknownnoreply@blogger.comBlogger1401125tag:blogger.com,1999:blog-5764290.post-83568077210870853452023-11-15T18:30:12.787-05:002023-11-15T18:30:12.787-05:00Ah, thanks!Ah, thanks!Pamela Chestekhttps://www.blogger.com/profile/09997764091535406126noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-84381826418136791522023-11-15T15:10:22.268-05:002023-11-15T15:10:22.268-05:00No, I just noticed it randomly!No, I just noticed it randomly!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5764290.post-73170926466641479032023-11-15T15:03:42.109-05:002023-11-15T15:03:42.109-05:00Is there a lawsuit over this?Is there a lawsuit over this?Pamela Chestekhttps://www.blogger.com/profile/09997764091535406126noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-66915484440910826642023-10-13T07:49:37.618-04:002023-10-13T07:49:37.618-04:00Prof. Tushnet, you got the parties mixed up. Corn...Prof. Tushnet, you got the parties mixed up. Cornelia is the defendant. Buczkowski was the plaintiff. <br /><br />And perhaps of interest ... the weird part about the case, Under the Nevada Anti-SLAPP law, prong one is that the speech must be true or made without knowledge of its falsity. In fact, it can even be reckless. So, it is an easier hump to get over than actual malice. You, by legal and logical necessity must overcome Prong one en passant if you get over actual malice. <br /><br />But... somehow the judge here found a warp in the space-time-legal continuum and ruled for us on summary judgment for lack of actual malice, but no Anti-SLAPP. <br /><br />(No need to publish the comment if you don't want - and just want to correct the post) Marc J. Randazzahttps://www.blogger.com/profile/10542181211631820397noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-58713570274795901642023-08-11T07:39:08.207-04:002023-08-11T07:39:08.207-04:00I don't know if this comment will ever be seen...I don't know if this comment will ever be seen but I hope someone in 2023 will take a look at Adobe's current practice of allowing direct downloads of all forms of "trial" software from their website, even versions that are no longer officially supported. They then allow the "Buy" button to work in that software but the license generated will not properly activate it. Burried on their massive website there are disclosures that they only sale the current version, but those disclosures are not prominently displayed on the download page where earlier versions of software are found, nor is the "Buy" button on the trial software disabled (grayed out) to signal that the product cannot be activated. If one is a casual user of products such as Photoshop Elements (aimed at consumers, not professionals) or a newcomer to these products it can be difficult to appreciate that the working "Buy" option available on software directly downloaded from the Adobe website is misleading. In fact, upon moving to the Buy screen where payment details are input it will state under specifications that "multiple" operating systems are supported by the product, which can be construed to mean that the license key that will be electronically delivered to the recipient's email will be consistent with the system requirements of the trial product. I can vouch for the fact that this is NOT the case: One will receive a license key wholly INCOMPATIBLE with any prior version of the software, even if that software is only one year earlier (i.e. Photoshop Elements 2022 trial will result in a Photoshop Elements 2023 license key). Essentially what this means is that the company is engaging in bait-and-switch because upon being contacted immediately thereafter they will state that under no circumstances will they provide the license key that the consumer thought they were purchasing. In other words, they will take payment under less-than-clear circumstances and refuse to refund it, even if the customer does not have the ability to run a current version of the software (due to limitations of their Mac or PC hardware). Adobe needs to be taken to task for the practice of allowing WORKING "Buy" buttons to exist in non-supported software downloaded directly from their website. Either remove the software or remove the "Buy" option from the trial. What's more, it should not be legal for a software company to render obsolete only ONE version behind the current version. This is not about retiring 5-year-old products. This is about making ONE YEAR OLD software ineligible for activation even though consumers are permitted to buy it directly from within the software trial itself.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5764290.post-36673914000310677832023-07-10T14:19:56.295-04:002023-07-10T14:19:56.295-04:00When compared to the size of the man, one could ar...When compared to the size of the man, one could argue "yes"Belemahttps://www.blogger.com/profile/15823990478585878090noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-78710890911883426732023-05-31T15:52:18.574-04:002023-05-31T15:52:18.574-04:00Not fair. Amazing that so little is being done to ...Not fair. Amazing that so little is being done to fix this by our governmentEric Goldmanhttps://www.blogger.com/profile/01593907559974631866noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-28138933509910531682023-04-26T14:16:59.660-04:002023-04-26T14:16:59.660-04:00They retroactively lost Article III standing becau...They retroactively lost Article III standing because they failed to prove damages? I'm not a fed courts expert, but that seems fishy.Bruce Boydenhttps://www.blogger.com/profile/02247768315353108904noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-87165972149972087412023-04-25T14:35:49.665-04:002023-04-25T14:35:49.665-04:00"The court was primarily guided by the absenc..."The court was primarily guided by the absence of proof that the false statements were a substantial factor in producing sales" is an interesting point (to me, not a lawyer). I do not know how often false statements are made that aren't intended to produce sales, but I can't imagine that it is ever just a harmless mistake or joke.KChttps://www.blogger.com/profile/04831282354592302843noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-27142572886443508892023-04-01T04:38:39.934-04:002023-04-01T04:38:39.934-04:00sorry, is there a link to the opinion? I do not se...sorry, is there a link to the opinion? I do not see it ... Thankslorenzohttps://www.blogger.com/profile/18356039793253967329noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-26403189220193471162023-03-14T20:12:42.734-04:002023-03-14T20:12:42.734-04:00What are your thoughts on this change in circumsta...What are your thoughts on this change in circumstances? <br />https://www.theregister.com/2023/02/12/software_freedom_conservancy_fights_agplv3/Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5764290.post-69597170145622851742023-01-06T13:01:56.949-05:002023-01-06T13:01:56.949-05:00Obvious jokes about sausageObvious jokes about sausageAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5764290.post-718067344294521772022-12-29T18:45:43.847-05:002022-12-29T18:45:43.847-05:00In addition to my comments about how frivolous thi...In addition to my comments about how frivolous this lawsuit is I forgot to mention that the Plaintiff said he would not have bought the New Balance if he new they had imported parts. My main question to him would be do you wear shoes, and if so where are they made? If he wears shoes other than molded sandals that are like Okabashi then they are either imported or have some imported parts outside of some very limited "Berry Compliant" boots made for the military. There still exist a supply chain for that product because of the Berry Amendment, but that is limited to very specific and type of footwear. New Balance actually Made the model 950v2 for the military and had their own EVA machine in Boston, but that can't be scaled and so these shoes were not available to the public. https://solecollector.com/news/2018/03/new-balance-17-million-dollars-military-shoes. -- https://www.military.com/kitup/2014/09/balance-releases-running-shoe.html<br />SAS has a product that they also make for the military call the Pursuit (Men's) & Tempo (Women's) that uses a PU midsole instead of EVA, but even that shoe when sold to the public has imported parts in it. <br />https://www.sasshoes.com/mens-pursuit-lace-up-sneaker/3710.html Thanks for your coverage of this confusing and frivolous lawsuit. Anonymoushttps://www.blogger.com/profile/11234315234280802154noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-34480389341687231122022-12-29T18:24:03.624-05:002022-12-29T18:24:03.624-05:00The problem with all of this discussion is that si...The problem with all of this discussion is that since the supply chain for footwear especially athletic shoes has gone off shore and that most athletic shoes have literally anywhere from 50 to 100+ parts in making the product it is essentially impossible to meet the FTC standard in this product category. Do we punish the one of 2 companies trying to keep the industry here in the USA and maybe build the supply chain back over time, or do we reward the companies that are exclusively off shore by taking away a competitor trying to make the product in the USA? Instead of a stick, why don't we as a country use the carrot approach when encouraging reshoring? In this case maybe offer a tax credit for some company to open a volume EVA factory in the USA as that is the on crucial part of an athletic shoe that is currently not made in USA in any scale. A company that wants to Make something on a small scale can usually get close to "Substantially All," but like the watch industry our requirements for being able the make a USA Made claim is essentially impossible! Why do we punish our companies with a mainly times unattainable standard for a "Made in USA claim?? It makes no sense! We import Swiss Made watches that wouldn't qualify as USA Made, but they are congratulated instead of criticized! Footwear is the same, as we paise the Europeans (Italy, Spain etc.) for the great products that are made there, but again would not meet our ridiculous FTC standard!!!Anonymoushttps://www.blogger.com/profile/11234315234280802154noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-36252458039246087632022-12-27T18:18:19.347-05:002022-12-27T18:18:19.347-05:00I pity the person assigned to your case. I pity the person assigned to your case. Steve Mancusonoreply@blogger.comtag:blogger.com,1999:blog-5764290.post-86711032282955917622022-12-27T14:21:10.028-05:002022-12-27T14:21:10.028-05:00This would be a great class exercise!This would be a great class exercise!Jessica Silbeynoreply@blogger.comtag:blogger.com,1999:blog-5764290.post-48687058054867949022022-10-31T14:39:08.214-04:002022-10-31T14:39:08.214-04:00I think it must have been distributed at retail; i...I think it must have been distributed at retail; it was still in a storage bag that said "Gemini Rising" but I got it on eBay.RThttps://www.blogger.com/profile/00850241338827117087noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-37481405948939672232022-10-31T14:25:20.811-04:002022-10-31T14:25:20.811-04:00Hah! Was the poster one of the 100,000 sold? How...Hah! Was the poster one of the 100,000 sold? How did you get it, and how much leg work did that involve?Tom Galvanihttp://galvanilegal.comnoreply@blogger.comtag:blogger.com,1999:blog-5764290.post-17591636918515560822022-10-04T09:17:32.081-04:002022-10-04T09:17:32.081-04:00This made me wonder how the court would evaluate &...This made me wonder how the court would evaluate "vegan butter" and "Just Egg"-seems like both could be in trouble in this court.Eric Goldmanhttps://www.blogger.com/profile/01593907559974631866noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-45754351352854787502022-09-24T20:48:51.672-04:002022-09-24T20:48:51.672-04:00RISE was good. Leval came with some heaters in th...RISE was good. Leval came with some heaters in that decision. Really shows how much bite conceptual strength can (and should) have, even in cases with registered marks.<br /><br />How certain are you that the title v. title exclusion still exists in CA2? <br /><br />I've always thought it fishy that neither Cliffs Notes nor Twin Peaks affirmatively blessed Footnote 5, or even really addressed it any length. Cliffs Notes sort of acknowledges the footnote (which explicitly said the "limiting construction would not apply" in title v. title cases), but then effectively says the limiting construction still applied. The court hardly engaged with the footnote. Then in Twin Peaks, the court says absolutely nothing about it. I'm not aware of any CA2 decision from after the trilogy that discusses the footnote's exclusion.<br /><br />So since CA2 has never really addressed or expressly applied the footnote (feel free to correct me if I'm wrong on that point), I do wonder about what the court would say about it nowadays. <br /><br />Maybe MSCHF will shed light. <br /><br />-GiulioAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5764290.post-69458165378233640352022-09-23T18:40:34.267-04:002022-09-23T18:40:34.267-04:00Interestingly, the court doesn't even mention ...Interestingly, the court doesn't even mention the "is the product bigger" part of Gordon, which reinforces my conviction that such a distinction is not about *explicit* misleadingness at all--it's basically an equitable doctrine asking 'did you do enough work?' (the defendants in GvD did create their own work from a (c) perspective, but the 9th Circuit apparently wants more).<br /><br />I think the analysis in CA2 would have to be different because of the title v title exclusion, but, especially after the recent RISE case, I expect the result would be the same. RThttps://www.blogger.com/profile/00850241338827117087noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-89135457597158072742022-09-23T16:05:38.688-04:002022-09-23T16:05:38.688-04:00The registrations can potentially be used to addre...The registrations can potentially be used to address counterfeiting, which can sometimes be a problem for game makers. <br /><br />The case differs from Gordon in that the mark isn't essentially the product, as was the case with the greeting card. The title of a game is a single (albeit important) component of a much larger creative work. Take away "Honey Badger Don't Care" from the greeting cards, and what are buyers really left with? <br /><br />12(b)(6) sounds dubious. But it seems likely MSJ would have yielded the same result for more money. I'm not sure the issue with CA9's standard is so much what the court said in Gordon as much as what the court has said in earlier cases, e.g. the statement in Brown that Rogers liability turns on the user's behavior instead of the impact of the use. They're basically applying an actual-malice standard now, notwithstanding Gordon's purported explanations/guidance. Doubtful discovery would have made a difference here.<br /><br />Do you think warzone.com would have done better if they beat Activision to the punch and managed to file in CA2 or CA5?<br /><br />-GiulioAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5764290.post-851694162900906142022-07-29T12:40:00.540-04:002022-07-29T12:40:00.540-04:00I appreciate your point, but that reason for the c...I appreciate your point, but that reason for the consumer buying it is only part of it and glosses over, as my comment indicates, Vintage's motivation for adopting the marks. The marks have great value and good will specifically associated with the mark owners and their activities associated with those marks. <br /><br />Additionally, I find the decorative use arguments are in bad faith. Vintage Brands knows exactly what they are doing, and such users of other marks are not that same situation as Thundercraft in the Bonita Boats. Trademarks being intangible assets cuts both ways. <br /><br />That being said, I would certainly agree that some of the cases that built the current jurisprudence (UGA/AA v. Laite) gloss over the consumer confusion prong (is "yadda yadda" the right Latin/legal term??). Some of this is driven by the court's belief that the bad faith aspects of the accused infringer covers up less proof on other factors. I assume your hair catches on fire at the mention of LSU v. Smack Apparel!<br /><br />I do not think that the court's comment about the potential consumer's "wrong" assumptions or beliefs that the product has to be licensed is that relevant or dispositive. We do live in a licensed world. If consumers currently believe that the apparel with their team's marks on it was approved by the school, then that prong would be satisfied. If my school signed a multi-million dollar deal with Nike then of course anyone making apparel with my school's logos has a license. <br /><br />The consumer surveys will be really interesting (and expensive). These are existential issues because of the money involved, and it will be curious to see if enough of a Circuit divergence emergences such that the Supremes eventually get involved. We might be in a situation where being a bad actor isn't enough under the statute - if you don't like it then change the statute. That'll keep some INTA committees busy... Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5764290.post-62862409527154488572022-07-28T16:52:06.225-04:002022-07-28T16:52:06.225-04:00No one is likely to convince anyone else in the co...No one is likely to convince anyone else in the comments to a blog post, but I will say that the most striking thing to me in your comment is that it refers to reasons for buying, but not to confusion about source. It's quite possible--indeed I find it probable--that the existence of Penn State is a but-for cause of most purchases of these goods, but that doesn't entail any confusion about who's selling what. The court was pointing to that logical gap between value extraction and consumer deception.RThttps://www.blogger.com/profile/00850241338827117087noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-43791826938394840532022-07-28T16:45:21.137-04:002022-07-28T16:45:21.137-04:00I agree that these cases raise some interesting is...I agree that these cases raise some interesting issues on consumer confusion/source identification, but I do not buy the ornamental argument. The ONLY reason that Vintage Brands uses the Penn State marks is because of the affiliation with Penn State. The consumer is not buying a sweatshirt with the Pozniak Lion on it because they like the design - they may like the lion design, but they bought it because of the association with Penn State. Just because licensing was not a major industry until relatively recently does not mean that schools did not have rights in their logos or names for merchandise, it just meant that they did not have the financial incentives to exploit them. I get why academics love this argument, but, well, that kind of speaks for itself. The court's disclaimer position under these circumstances is hopelessly naïve. Anonymousnoreply@blogger.com