WIPIP Panel 4: Emerging Technologies

The European Accent of U.S. Digital Platform Speech (Brian Downing)

We are often told that self-governance by corporate platforms is better than government control, but his experience was that freedom of action wasn’t free. US gov’t defers to platforms, but they in turn defer to the EU. Thus, deregulation doesn’t promote freedom of action by platforms, who instead subordinate speech and security values. US is abdicating values it might want to inculcate into platforms.

Many things in EU regulation are good and should provide a US model—DSA rights of appeal are desperately needed. But codes of conduct etc. have no bargaining dynamic with US free speech principles. We should craft regulation to bargain with the EU vision. Our involvement in laws helps shape future regulation in ways that are better than our absence.

US approach, Moody v. Netchoice: few greater dangers to free expression than allowing gov’t to “change the speech of private actors in order to achieve its own conception of speech nirvana.” Corporate speech is protectable. Content moderation: we will have a light touch so we won’t break the internet.

EU: GDPR, DSA, DMA, AI Act—all implemented by many platforms globally. Even if you could segregate as a practical matter, you can’t build out a system like that just for Europe. You build it and implement it worldwide.

Also, technolibertarians have turned into compliance departments who just give a bottom line and they implement that globally.

Where the US stands back and doesn’t want to mess with US companies, what has actually happened is the DSA codes of conduct have removal policies that have a pseudo balance of privacy and speech, but the real way it works is that speech is subordinated to privacy or other interests. Companies are told they need to “voluntarily” agree.

If we want different rules, we have to bargain with this dynamic. We should have privacy regulation as a bargaining chip for alternatives to GDPR. You may hear “the EU is stepping back b/c they see their lack of competitiveness” but they are pretty modest; do not touch DMA or DSA. Just change some consent definitions for GDPR and timelines for AI Act, but not fundamentally changing balance of power. Changed definition of PII. Anonymization is helpful, but doesn’t cause a company that was setting its privacy standards based on the GDPR to ignore the right to be forgotten.

Q: what about economic dimension of Data Act? Applicable to internet of things, wider scope—does this affect platform economy?

A: lots of confusion about Internet of Things applying to mobile phone OSes. Platforms think that the definitions were broadened to future-proof them, but that means the rules don’t seem to match mobile OS. His guess: this will be private room meetings, nonenforcement agreements (rule says only imports of data are allowed, not exports; that will frustrate users of Android phones—do you really want that? Quiet nonenforcement agreement).

Right posture: enter regulatory game to influence it. AI: product liability approach w/safe harbors, not mandates to stifle user questions on sensitive topics.

Interoperability requirements threaten security and we need pressure on that. Maybe there should just be competition, not forced openness.

RT: in the abstract, very persuasive, but hard to agree when you see what the current US gov’t is doing: deliberately boosting right wing content outside the US. Also: bargaining requires a reliable partner, which we may not be capable of right now. Idea of passing federal legislation is a bit of a stretch.

Separately: current regime has differential effects on SMEs versus Meta, Apple and Alphabet (including differential requirements imposed by European regulators). [That is, the SMEs may not be building the worldwide systems that those big companies are.] Mismatch of understanding: The quiet nonenforcement agreement is understood as the operation of the rule of law in Europe but corruption in the US. That may make it hard to speak in the same register.

Bargaining chip implies that we’d want to continue to influence/control global rules. Compare mandating geofencing. (Blake Reid’s Jawbreaking and counterboning).

A: might be talking about a world that doesn’t exist any more. It is unsettling to confront regulators where quiet backrooms are the way things get done, and when there’s regulator turnover things can change fast. [My view is that this is correct but that Europeans would neither draft laws the way we do nor see compliance with law the way US courts (or administrators) would even if the law’s wording is the same.]

Q: what about the states? California might be able to regulate. Could be a reliable partner even! One difficulty is that there’s an attempt to stifle state regulations.

A: harder to operate on the corporate side where Illinois has one biometric law and California as another—harmonization is important. But there is a ton of action on the state side. Maybe we’d want these state actors as our representatives to the world—almost any actor negotiating would be better than the actors we have!

Venture Capital (Michael Burstein)  

VCs funded electric cars and mRNA vaccines, but recently VCs have concentrated investments in social media, crypto, and AI. Conventional wisdom is VCs pick and choose from promising pitches. It’s the ideas that drive the funding. We argue that’s exactly wrong: it’s the funding that drives ideas. VCs send signals to market about what they’ll fund, which induces entrepreneurs to found startups that will be funded.

VC preferences are shaped by social norms, need for power law returns, and short time horizons. Result: narrowing of innovation. We look at how VCs shape founder behavior—ethnographer’s dataset. Corporate law, contract law, and public policy could expand the possibilities for innovation.

2024: $215 billion from VCs, a little less than half of the pre-Trump science funding. So who makes investments in early stage companies with significant risk and when? Key features of the VC model: large equity stakes for founders, standard 10 year term of VC fund, 2/20 compensation structure. The goal is efficient allocation of capital w/in the funding realm.

But the outside perspective judges policies by innovation outcomes, not allocative efficiency. Here, the big problem of VC is clustering: $100 billion in AI, then $50 billion in healthcare—67% of VC funding, leaving 30 other industry categories like climate tech and hardware mostly unfunded. This carries through across demographic lines: female founders received 1% of funding, Black and Latinx got 1% and 1.5% of funding; 55% of funding was in California.

Innovation scholars shouldn’t treat VC as a black box: we look that entrepreneurs, the ones who decide what companies to found and what innovations to pursue. Entrepreneurs aren’t monolithic in preferences; partially motivated by finance but usually not the only or even the primary motivation for what the entrepreneurs want to do. Some entrepreneurs will trade off financial considerations for solving intellectually hard problems, or for doing good in the world, or something else. Preferences then interact w/market signals: from investors (VC sends signals about what will yield the highest returns 6-7 years post-funding, scalable with $ to increase likelihood of power law return); from product market (measure of success is positive unit economics and profitability); and from social world (divergence b/t private and social value of innovation).

Put preferences w/signals & get the marginal entrepreneur: the one who doesn’t eschew VC funding or just want money but has to decide where to invest innovative efforts.

VCs put a thumb on scale in pre- and post-funding environments. Often built around fads & bubbles; often very explicit in what they’re requesting. Repetitive & exhausting hype cycle.

Distorts investments: (1) misallocating resources, (2) distributive consequences. Wasteful duplication—similar to literature on patent racing. Pre-funding, perception of limited pool of capital induces overinvestment in these kinds of favored tech. Post-funding, VCs favor winner-take-all—you see wasteful investment in trying to capture consumers. VC returns may reflect anticompetitive behavior; unit economics diverges from ROI, and externalities are not fully internalized. This dynamic favors founders who resemble what VCs expect and can tailor their behavior to what VCs like, leaving out women, minorities, noncoastal and rural populations. Consumers are also left out—the tech is disproportionally aimed at the problems of the communities from which VC comes.

What can law do? Change content of VC signals: why is the standard term 10 years? Change the strength of the VC signals: modulate corporate law; promote countervailing signals/amplify other sources of funding.

The Innovation Paradox: How New Forms of Media Confound Copyright (Zachary Cooper)

The more innovation we have, the more © gets confused about dealing with new media. Use of Gen AI doesn’t reveal anything about creative relationship to work—it’s as helpful as saying “used software.” No means of auditing or evaluating. Authorship thresholds won’t work but that leads to problems of scale—too much content out there. We also have a problem of form: everyone can turn everything into everything else.

Copyright often does not recognize innovative new modes of creative expression, or allow innovation if built from other people’s works; innovation increasingly lowers costs of production, and innovation undermines fixedness—the notion that a work will stay itself.

New instruments since the late 70s have not been protected (synths). The sound of EDM for the next 50 years—but no one thought it was protected composition b/c it was just turning dials on a machine. We mined all the latent space in that composition—but the only thing that © protects is the melody. © is protecting the old part of Donna Summer’s I Feel Love, but not the innovative part. Meanwhile music services aren’t paying artists anything for anything they generate.

In 5 years no one will care if you used AI but it will be too late: we’ll have set up a surveillance apparatus that prevents you from creating unobserved.

"shipping protection fee" providing no extra protection was plausibly misleading drip pricing

DeMarco v. DNVB, Inc. (Thursday Boot Co.), No. 25-CV-3076 (GHW) (RFT), 2025 WL 4378637 (S.D.N.Y. Dec. 5, 2025) (R&R)

Thursday Boot sells shoes, apparel, handbags, and accessories on its website, which offers “free shipping and returns in the U. S.” according to a banner at the top of the webpage. Each product on the website is listed with an “Honest Pricing Guarantee,” promising the “Best Price offered year-round.” Upon checkout, however, a “Shipping Protection” fee of $2.98 was automatically added to the customer’s cart, with an option for the customer to deselect the Fee. Customers are told that if the Fee is not paid Thursday Boot “is not responsible for damaged, lost, or stolen items during shipping.” However, defendant ships its products via UPS, which will reimburse purchasers of lost or damaged packages. Defendant also has an Amazon storefront on which it sells its products and offers free shipping, without the Fee.

Plaintiffs alleged violations of NY’s GBL (along with common law contract/unjust enrichment claims which the magistrate recommended rejecting). Although the magistrate thought there was no standing for injunctive relief, the basic deception claim was plausible.

Whether the Honest Pricing Guarantee was a deceptive practice depends on whether the Fee was misleading, which it plausibly was. Defendant argued that there was no misleadingness because (1) the Fee was clearly disclosed on the checkout page “in the same size and font as the product price, together with an adjacent option to remove the charge”; (2) shipping protection is distinct from shipping, so that a charge for shipping protection did not negate Defendant’s promise of free shipping; and (3) the shipping protection bought by the Fee provided value to buyers by allowing them to recover from Defendant for lost or damaged packages, thereby relieving buyers “of the responsibility to pursue relief” for lost or damaged packages from the shipping companies.

But it was plausible the combination of the free shipping representation and the negative option to remove the Fee was misleading to reasonable consumers and that Defendant’s behavior was made more misleading by Defendant’s last-minute inclusion of the Fee, aka “drip pricing.” Plus, the statement that Defendant was “not responsible for damaged, lost, or stolen items during shipping” could plausibly lead “a consumer to believe that they will bear all risk of loss” if they did not pay the Fee, even though buyers were already entitled to such compensation.

Full disclosure occurs when a party “is provided with all the information necessary to understand [a] practice and its consequences.” Whether the disclosure provided plaintiffs with sufficient information to understand the significance of the Fee was a question of fact that couldn’t be assessed on a motion to dismiss. While a reasonable consumer would understand the difference between shipping and shipping protection, “the website provided insufficient information to allow reasonable consumers to understand the nature of the shipping protection secured by the Fee.” A reasonable consumer likely would be unaware that the carrier would, under ordinary contract principles, bear the risk of loss or damage during transit. The check-out statement that if a customer did not pay the Fee, defendant would not be “responsible for damaged, lost, or stolen items during shipping” was “technically accurate,” but the failure to disclose that the carrier was responsible for loss or damage during transit might “undermine [the] consumer’s ability to evaluate his or her market options and to make a free and intelligent choice.”

Also, even if a reasonable consumer would have understood that the shipping fee added defendant’s commitment to bear the risk of loss or damage, it wasn’t clear that they would know that the fee was optional.  Adding the fee to customers’ carts at the very end of the transaction “added to the confusion and could plausibly have misled reasonable consumers about whether the Fee was optional.” Articles cited by the defendant in support of its motion to dismiss, which state that offering shipping protection has become commonplace, “also opine that adding fees for shipping protection at the end of the transaction is misleading to the average consumer.”

WIPIP Panel 3: Deepfakes, Celebrities, and Movies

A Digital Right of Publicity for the AI World (Emma Perot)

Prehistory: ROP covers lookalikes, soundalikes, video game avatars (at least for realism).

Persona as training data. Theories of personality: users informed about use; many social media companies do not allow opt-in or opt-out; performers can be subject to exploitative terms. Unjust enrichment: in absence of compensation for training and licensing to third parties. Incentives undermined, though this won’t apply to the average social media user. We tend to favor art we think is made by humans. W/o proper protection we’ll undermine incentives.

Input stage: is consent obtained? Maybe, sort of, via terms of service, contracts with publishers, agreements made pre-AI.

Output stage: could be identifiable or unidentifiable. The latter isn’t really a problem for ROP. But the ability to create unidentifiable persona makes input approach important—persona has been used for the training. Risk of nefarious uses already addressed in many situations; but expressive uses could be covered which could interfere with realistic depictions, e.g. in biopics. If you’re conveying information about the person perhaps we want to allow that (as opposed to casting them in a role).

No FAKES: positives—exception for satire/parody, disclaimers not permitted. Negatives: doesn’t address training, uses to create composite figures, licenses last too long (10 years). SAG-AFTRA agreement: more positive b/c TV/theatrical uses they say: each capture and use of digital replica should be consented to and compensated.

Need clarity on how consent for input is sought and how outputs will be treated in expressive works. Avoid labor displacement.

Betsy Rosenblatt: Different interests from people who make a living from their persona v. someone who is more concerned w/privacy.

Lisa Ramsey: theories of persona is one framing, but what are the goals of the law is another. What are you trying to protect? Right to make $ from performing? Right to stay out of database?

[Persona is a bad fit for a consent-to-train framework because the details of a person’s life etc. are facts. You may be thinking about songs and movies, but the NYT wants to be able to license its news stories w/o being overridden by the subjectss. Moreover, persona is constructed with others. When I tell my life story, my husband’s life story is inherently implicated.

Incentives: if you are relying on the preference for human-made work, what you want is a disclosure regime; licensing by the person will lead to lots of deception.]

Transformative Celebrity (Rebecca Curtin)  

ROP claims might be implicated by methods users use—Zarya of the Dawn looks a lot like Zendaya, and that’s b/c the prompter used her name to produce a character who resembles Zendaya. Use of names in prompts alone, w/o reference to whether an infringing result is produced, has been raised by artists who alleged that allowing users to request art in the style of X was a violation of the ROP.

Transformative use was imported into ROP from ©, but © has recently devalued new meaning and message. Should ROP follow ©? Should © return to focus on new meaning, especially for use of persona? Does it make sense for © and ROP defenses to differ?

Transformativeness is not the worst approach of the possibilities in ROP.

Warhol’s commerciality test sounds a lot like the predominant use test in ROP cases (yuck).

Thinks Griner v. King was wrongly decided by 8^th Cir.—use of “success kid” meme was not fair use even used in political speech. Inherently expressive way of using image as cultural reference, but court reasons that controlling the commercial use of the template was the point of seeking © and thus not transformative—devalues what the politician was trying to say. Warhol is undervaluing new message & meaning, and expanding that approach to ROP would be devastating to the transformative power of celebrity itself.

Brian Frye [edited to correct attribution]: the speech is out there; it’s just a question of who gets paid/the rents.

A: chills speech by future potential speakers.

RT: experience w/state dilution law suggests courts are neither willing to use nor capable of using two different tests with the same name. Return to productive use, but this time for the ROP?

Trademark Law's Trouble with Titles (Stacey Dogan)         

What would have happened if Barbie, the movie, was made by a truly subversive entity instead of by Mattel? TM handles titles very badly in ways that are becoming more problematic after JDI. Alone in the Dark lawsuit—based on video game suing over title of movie Alone in the Dark, one of many films under the same name.  Several courts in the wake of JDI have concluded that titles may be source indicating, meaning that Ds have to go through the regular LOC standard, which is much less speech-protective. But these courts have gotten it wrong.

Titles and TMs do have some things in common. But differences in purpose function and impact on audiences versus impact on consumers; differences in consequences of extending legal rights to titles (speech impacts)—which should mean different legal rules. Reference to titology, literary theory of what titles mean.

Looks at different contexts: titles as TMs, recognized by early 20^th-c courts as basis for unfair competition claims, but rightly with a high standard requiring explicit misleadingness; Rogers and titles as alleged infringement; Dastar and its conception of TM’s relationship to expressive works (TMs identify source of physical object; titles are not TMs in this view, but indicate a relationship b/t author & expression); and then JDI and Kagan’s understanding of “use as an indication of source.” This should be understood narrowly to preclude the treatment of titles as TMs.

Goal: easy resolution of most cases. Presume titles are not source-indicating uses, which means that Rogers-like speech protection is appropriate. But Rogers needs an update: can’t later claim TM rights based on expressive uses. Some kind of estoppel, though implementation is tricky.

How to draw the line b/t mere use in title and other uses? Advertising of title/work should clearly be allowed, but what about merchandise? Advertising in connection w/merch?

Ramsey: would only apply rules against people who asserted TM rights by applying for registration, claiming in a pleading, or maybe using TM symbol—treat as an admission by the defendant. But what about Harry Potter and the ___? If there’s no inherent meaning before adopted, maybe allow TM, but something like Alone in the Dark already had meaning and thus shouldn’t ever be protectable.

A: two different forms of expressive use: one set of terms involves common meaning like Alone in the Dark; also important to be able to engage in nominative fair use-like titles like Barbie Girl.

Rosenblatt: how much do we need title exceptionalism to get to this place? Dastar: relationship b/t title and content is not a source relationship. We can understand that some titles are descriptive, generic, arbitrary and approach them that way. (I don’t think arbitrary titles are marks! Use as a mark is a separate requirement from placement on Abercrombie.) But she’d limit that to rights claims; whereas when titles are the source of alleged infringement we should treat that differently.

A: we have title exceptionalism on the protection side and should retain it b/c of the expressive cost of granting rights. Titles are creating more problems than characters—most of the Rogers character cases are easily resolved in favor of the defendant b/c courts have found that use w/in a work is more purely expressive.

FIRST: Archival Encounters That Set History in Motion (Claudy Op den Kamp)

Videographic presentation of history of first film © registration in US.

WIPIP Panel 2: Copyright and Culture

  Copyright’s Invisible Hand: Subsidizing America’s Cultural Institutions (Guy Rub)

© sometimes requires payment from more intensive users, sometimes not. Exclusive rights: unbundling—buy a book to read v. buy a book to adapt to movie. Fair use is sometimes bundling: buy a book to parody it, treated together w/ordinary readers; buy a book to extract facts for own work, fact/expression distinction bundles that user with other just-readers.

First sale: also bundling—museums and libraries pay the same as private purchasers. Subsidizes cultural institutions. Legislative process: ensure that libraries won’t be harmed by Copyright Act; 109(2) does not apply to libraries. Congress spent a lot of effort over time to treat libraries separately and promised to revisit the law if libraries started to suffer.

Why does this matter? Digital distribution is the elephant in the room, and the Internet Archive case with CDL.

Lemley: are we balkanizing fair use?

A: that ship may have sailed.

Theory, Technology, and Culture in the Development of the Legal Musical Work (Lauren Wilson)                    

Gap between legal and musical understandings of what a musical work is. Structure: Before the 1909 Act; 1909 hearings; before the 76 Act; 76 Act hearings.

Before 1909: the musical work was lines on a page, thus writings. But most major American cities developed an orchestra in the second half of the 1900s, exposing them to more music. Phonograph invention: originally for preservation; 1890: gramophone introduced. Sound recordings quickly recognized as a teaching tool for rhythm, tempo, accent, etc. Also as brutally honest records.

1909 Act hearings: Music publishers brought figures it hoped Congress would find sympathetic, like John Philip Sousa who hated records. Recording industry didn’t have household names; appealed to egalitarianism/access to music even w/o resources to invest in intensive musical training. Publishers won: Congress recognized records as ©able for the musical work authors, but not as works of their own.

Claim made by industry: Sound recordings were neutral records of sounds as they happened. But Victor published ads “Both are Caruso”—the singer and the record. Authenticity was a non-issue until record companies needed to convince the public that recordings were authentic.

By the mid-20^th century, recordings are standard way to experience music. Music publishers adopt similar strategy of putting composers on the stand, but they aren’t household names as they were before. Claimed that © protection for recordings would boost revenue allowing them to support “good” music, “serious” music that members of Congress would enjoy. Received some protection, though that protection is still limited compared to that for the musical work. Fictions about musical technology and taste led to a failure of imagination. Publishers could have brought the Beatles or the Beach Boys, Janis Joplin or Jimi Hendrix—the industry was buzzing with innovation. Congress squeezed concepts of creativity into existing legal boxes.

Q: quoting from a sound recording is almost always infringement so there’s more rights there.

A: yes, but no general public performance right. “Literal” copying is very strictly prohibited, but imitations are fine.

Matt Sag: Class, race and gender seem likely to have been important.

A: 76 hearings particularly—they chose only Western art music composers so excluded Black artists.

Caponigri: Comparative insights? Enrico Caruso—artists traveling from different places to different audiences.

Lemley: interesting to think about how those structures differ as b/t music and e.g., movies which we don’t pull apart. Plays also preexisted movies, just like the musical work.

Buccafusco: we weren’t worried about record piracy until the 1960s [side note that I think that “we” is doing a ton of work here; there were big “pirate” operations but not much home taping before that], but want to make sure it doesn’t screw up the mechanical reproduction right for musical works, so we have to limit the sound recording reproduction right in new ways.

Reproduction v. Reference (Benjamin Sobel)

Copyright cases are treating references as reproductions. Example from Salinger v. Colting: do you deny that he is Holden Caulfield? A: No. That is a key example of the mistake made in certain derivative works cases: treating a reference as sufficient to create an infringing derivative work. Inexplicable cases where substantial similarity of expression isn’t there: character names, sequels, and other noncopying derivatives. Maybe answer keys. Referring to expression in some other work, evoking it in reader’s mind—that’s not the same as reproduction.

What is the law they’re actually applying? Apparently they’re measuring referential specificity: it’s about the strength of a referential relationship, not presence of original expression: how tightly the character name corresponds to the characteristics we associate with the character. Towle (Batmobile) case—nothing in the analysis there turns on expressive qualities.

There’s no reason we should care about characters’ names, but they play a central role in some courts’ vision of copyrightability: Posner in Gaiman v. McFarlane—it’s harder if the character has no name. Names aren’t expressive, they’re too short.

Sequels: the law of character copyright suggests that if the character changes significantly across works then I don’t have a copyrightable character at all. But I should have the number of copyrightable works I have written.

Persistent conflation of identity with similarity. Is the character Mr. C Holden Caulfield? It’s irrelevant!

Anderson v. Stallone: does it reproduce copyrightable expression in a short treatment? Or does it just use Rocky’s name. The court says it doesn’t matter b/c the characters “are” the same. But identity is not substantial similarity. Anakin Skywalker from The Phantom Menace “is” Darth Vader but it’s ridiculous to say they’re similar. A child who is not covered in burns who races a pod racer is not similar to the character of Darth Vader.

The reproduction right isn’t a reproduction right—it covers much more than what you would colloquially describe as a “copy.” It has a principle, similarity, but the philosophical concept is exemplification: possession plus reference. A tailor’s swatch refers to the identified fabric & color by possessing the qualities to which it refers. Reference inquiry is copying in fact; possession inquiry: has to possess the relevant aesthetic features.

The problem for these cases is that a name doesn’t “exemplify.” It designates, but does not describe.

What role does the derivative work right play here? Can it be meaningfully distinguished from the reproduction right as expanded?

He believes: the reproduction right in a character can never be infringed by using its name. Assume you replace all instances of Sherlock Holmes’ name in a PD story with “Harry Potter,” that doesn’t appropriate copyrightable expression from JKR. Likewise: Calling something a sequel doesn’t make it a substantially similar copy.

In a suit alleging improper appropriation, a character’s name in both works should be excluded from the substantial similarity analysis (even if relevant to copying in fact). Prejudicial effect far outweighs its probative value.

Maybe the derivative work right would be another story. Reserving judgment. Either the derivative works right could be about something other than similarity, thus substantial similarity is not required for derivative works, or maybe this is a formal argument for why these cases are illegitimate b/c similarity is and should be the bedrock of ©.

Matt Sag: Ordinary observer standard: when the ordinary observer is presented with the name of a character, they remember a whole narrative backstory; isn’t that driving those cases?

A: descriptively accurate, but not reproduction! Maybe that’s what the derivative work right is.

Caponigri: could Dastar help? Content of work/originator of work isn’t supposed to be source indicator. The reference here is sort of like passing off/evoking associations in mind. [Maybe these are just TM cases]

Buccafusco: Barbie Girl is an example where reference doesn’t seem to infringe ©.

Shani Shisha: Courts are saying “I know it when I see it” and applying a but-for causation standard.

Occult Copyrights (Ari Lipsitz)

Rider-Waite-Smith tarot: a © story. The 1909 public domain deck has slightly different colors from the 1971 © claim. The publisher has acted as a steward and exploiter of the legacy of the RWS deck. New matter claimed: lithographic reproduction of designs & text.

Attributes of an occult ©: public domain core, derivative shell, and © owner uses mechanics of system—registration, notice, licenses—to yield a perception of protection & supracompetitive benefits. Evergreening: routinely republishing minor variations to reinforce the “aura” of ©. Litigation avoidance: often no enforcement at all, or only C&Ds, leading to market power: popularity of asset replaces monopoly right. No one else will compete even if they could.

Doctrinal rejoinder: anyone should be able to reproduce the work, and their contributions shouldn’t govern the original, but that’s not the reality. You’re not buying the work for the derivative contributions but for the PD asset.

Lemley: shouldn’t AI & other tech make market entry easy if not for the false © claims?

A: yes, they used to assert exclusive right to use this deck for digital readings, but don’t seem to try to enforce any more. [Presumably they’ve found another path to profit.]

WIPIP, BU Panel 1: Trademark Theory and Practice

Trademarks, Functionality, and Competition (Glynn Lunney)         

Came in late; 3d Circuit is not a good circuit for trade dress (11.8% success for claimants, almost always on functionality (71% of wins)). 5^th Circuit at the other end—50% success, functionality only successful as a defense 20% of the time.      

Functionality is a trump card, not a balancing test. Problem: Inwood test is dicta; the real problem the Court saw was failure to defer to dct on factual finding, but the dct applied the standard “is the feature an important ingredient in the commercial success of the product?” and that’s the Pagliero standard. And dct should only get deference if it didn’t make an error of law. Functionality is for non-branding purposes. Morton-Norwich isn’t beneficial to consumers; we need more attention to whether there is competition and less to whether it is “fair” by avoiding copying of attractive features/role of incentive to create design should be irrelevant.

Err on the side of functionality; just b/c some trade dress may be nonfunctional doesn’t mean we should analogize from Coca Cola bottle to trade dress generally. 5^th Circuit wrongly reverses the hierarchy of the Lanham Act.

Beebe: why not go further and adopt Easterbrook’s approach: if it does anything other than indicate source then no protection?

Lunney: if there’s only one consumer who wants it for its shape alone, that’s a little troubling—average/reasonable/ordinary consumer is a standard construct.

Tertiary Meaning (Sari Mazzurco)                

Concept: Distinctiveness that is cultural and especially indigenous that should trump TM distinctiveness. Genericness/secondary meaning both ask about what the primary meaning is: the producer or the product. Failure to function doesn’t have a uniform test but PTO does ask whether something serves only as an expression of a concept/sentiment and is widely used by third parties so it wouldn’t be perceived as a source indicator for the goods concerned.

Each test applies awkwardly to symbols that are significant to cultural groups. Imagine that Hermes began using a traditional pattern from kente cloth on its bags. Kente cloth is used in rituals, has spiritual/cosmological significance. Hermes could use the coercive power of the state to try to bar those uses even if the third parties are using the pattern in a manner consistent with its cultural purpose. Relevant public for genericness and secondary meaning is likely consumers; F2F looks for wide use by third parties. West Africans likely wouldn’t represent a big enough percentage of those groups.

Meaning-making is a social practice, always emergent and conceptual, rarely universal, never subject to exclusive control—always negotiated and contested, with power dynamics at play. Source distinctive meaning can vary across time and contexts. But people might not silo meaning across groups. And people might fight over meaning in TM context: Matal v. Tam. Groups have asymmetric power—dominant groups have more ways to establish their preferred meaning. Ability to leverage coercive power of state helps. If Hermes wants to establish secondary meaning for a kente pattern, it has many tools to do that, including TM’s privileging of source-identifying meaning.

Conclusions: include cultural groups in relevant public for genericness/secondary meaning; consider cultural meaning in F2F determinations; cultural groups should receive priority even when a third party is first to “use” the mark in concept; recognize that noncommercial uses by cultural groups are outside the scope of trademark law.

Felicia Caponigri: how does the cultural meaning of Hermes bear on this?

RT: (1) Adapt doctrine of foreign equivalents analog: can use for 240,000 people in the US!

(2) Cost-benefit analysis underlies the DFE and other TM doctrines: you consider the interests of the smaller group more significant if they’d lose something significant like a coherent existing meaning and the rest of the public has no particular need for the symbol. Fire cider genericness case; otokoyama for sake; bond-OST for cheese.

(3) Noncommerciality mess: selling kente cloth for cultural uses would not be noncommercial; Hermes would not target the wearers in the US, but the sellers/importers.

21st Century Trademark Surveys (Rebecca Tushnet)

Surveys are a mess; routinely criticized as missing the point and also dispositive in some key cases especially involving free speech issues. Budweiser Oily, JDI.

Repetition of questions: source, business affiliation, again and again—prompting respondents to answer positively.

One survey asked three times what people thought of aluminum as an antacid ingredient until the third question yielded 45% of people who thought that aluminum was bad for them. The court gave the survey little weight. Johnson & Johnson-Merck Consumer Pharms. Co. v. SmithKline Beecham Corp., 960 F.2d 294 (2d Cir. 1992).

Compare L & F Prods. v. Procter & Gamble Co., 845 F. Supp. 984, 996 (S.D.N.Y.1994) (repeating questions “also serves the purpose of clarifying otherwise-ambiguous first responses by probing the implications of previous answers”), aff’d, 45 F.3d 709 (2d Cir.1995), with Am. Home Prods. Corp. v. Procter & Gamble Co., 871 F. Supp. 739, 748 (D.N.J.1994) (excessive probing undermined credibility of survey evaluating arguably implicit messages).

Lack of definition: asking why do you say that is not the same thing as what do you think affiliation means

Lack of clarity about what the statute means: statute uses affiliation to mean two different things in the same section
(a) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association: here, association is something that can be either true or false, thus confusing or nonconfusing

(c) association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark—here, association refers to mental processes and the association is not false; the consumer really does think about Nike when seeing Nikepal 

Ideas: training module; don’t repeat but have choose as many as apply; include an option “this is about the trademark owner” –other thoughts?

Jake Linford: pilot study on tarnishment: we did for a screener try to define tarnishment—lost 1/3 of respondents. We had tried to define it on our own terms—why not use the statute? Part of the work is defining the term.

Lisa Ramsey: Informational uses of TMs/comparative advertising. Expressive: parody, satire. Decorative: colors, shapes. Does this use provide information? [not sure that’s as helpful b/c courts don’t care, they just care about the confused subset]

Laura Heymann: should the survey question think about the harm at the heart of this: when we ask these questions are we trying to figure out solely what consumers think or what they do? [again, minimum change principle, though I appreciate the larger project of course—but consumers are really bad at telling you what affects their behavior so materiality might not be best assessed in a confusion survey]

Lunney: how much do you think controls help? [not much b/c of tendency to elaborate]

Is Teflon really any good?

Caponigri: context of surveys—Instagram might differ.

Stacey Dogan: depends on what affiliation confusion is.

RT: I think this is much easier than you might think. Affiliation specifically is a term of art across many statutes. I don’t love Chief Justice Webster, but we’re in a period where he’s very influential.

Education, Wealth, and Weird Trademark Surveys (Jake Linford with Justin Sevier)             

In the US, and perhaps systematically among scholarly studies, our studies are WEIRD (Western, Educated, Industrialized, Rich, and Democratic). We are undersampling low-education and low-income consumers and not sufficiently correcting for the undersampling. Most surveys don’t even report education or wealth.

Hypothesis: lower education consumers are more likely to be confused. But it might matter either way. In our study of tarnishment, there is directionally a burnishment effect but the sample size is so small as to create a lot of noise.

A null effect is also potentially interesting.

Is wealth as important as education? May be easier to measure one thing than two. Eventually will look at litigated surveys.

[RT: WEIRD usually describes the population: this is implicit in your not challenging whether we’re oversampling Westerners, industrialized, democratic (though political orientation might be increasingly important). Linford: yes, but we are undersampling education/wealth.

Compare surveys among educated consumers: doctors/pharmacists? Luxury goods]

Caponigri: we need the relevant population

Roberts: correcting for those things might be wrong depending on the product

Q: Does dilution have a corollary with considering sophisticated consumers? Or is a dilution survey different in who it should target?

Trade dress protection study: Higher education: the more likely you are to prioritize competition; lower education: more likely to prioritize protecting status.

Heymann: is that a function of the survey format v. actual behavior in the market—the survey context/this is a test that I have to get right/this is like an educational experience? Less experienced with the environment the survey is creating.

A: a fair question, but don’t want to presume.

Lunney: how much do surveys really matter? Judges like them if they agree w/judges’ preconceived outcomes.

A: sure. We have been making claims as we run surveys that they might tell us something about how TM law is or isn’t working; if none of us are asking the right people, then we have to change our claims.

Deadly automatic litterbox might be falsely advertised as "safe"

Gomez v. PetPivot, Inc., 2026 WL 507708, No. 25-cv-5622 (LJL) (S.D.N.Y. Feb. 24, 2026)

“Safe” is the kind of word that is general enough that it might be puffery, but courts think that safety is important enough that they sometimes consider it falsifiable. Here, defendant’s self-cleaning litterbox product gruesomely killed plaintiffs’ cat after they received the litterbox as a Christmas gift. (I will not give you the details but they were awful, and it was difficult to remove the cat’s body.) It was “advertised as remaining partially open at all times, with no complete enclosure that could entrap a pet.” On the PetPivot website, Amazon.com, and promotional materials, PetPivot marketed the Autoscooper as “smart,” “safe,” and “fully automated” and equipped with multiple “safety protection devices,” including that the system would automatically stop operating when a cat was inside the chamber. “The Amazon listing for the PetPivot assured consumers that the device can operate safely without supervision.”

Although individual defendants from PetPivot were dismissed for lack of personal jurisdiction, the court allowed NY GBL false advertising claims to proceed. GBL Sections 349 and 350 require proof of causation but not “proof of justifiable reliance.” “Reliance is the causal link between an alleged deceptive practice and a consumer’s decision to transact business with the defendant, whereas causation refers to the link between an alleged deceptive practice and an actual injury sustained by a consumer as a result of such practice.” Thus, causation can be shown by evidence either that the plaintiff would not have entered into the transaction or would have taken precautionary measures with the product had they known the truth.

Here, plaintiffs didn’t claim they bought the product in reliance on defendants’ representations, but rather that they relied on those representations when accepting and using the product in the home. That sufficed: they alleged a “connection between the misrepresentation and ... harm from, or failure, of, the product.” Also, applying Rule 8, they adequately identified the misrepresentations at issue.

Can the death of a cat qualify for negligent infliction of emotional distress where neither plaintiff was threatened with physical harm? “Bystander” claims for NIED in New York are limited to “immediate family,” but the courts have declined to define the outer boundaries of that phrase.  New York courts have allowed a grandmother to pursue a claim for bystander recovery following the tragic death of her grandchild, relying on the “legislative recognition of the changing nature of society’s understanding of family and the special relationship between grandparents and grandchildren.” By contrast, the relationship between aunts and uncles and their nieces and nephews didn’t qualify. “[T]he inquiry is objective; it asks not whether the grandmother and her grandchild had an exceptionally close bond, but whether New York law has evolved to recognize grandparents as a ‘discrete, limited class of persons that enjoys a special status under modern New York family law.’” 

A lower NY court also found that a pet dog could be classified as “immediate family.” New York Domestic Relations Law (“DRL”) requires a “best interest” framework for determining the custody of pets, similar to the framework for children, in recognition “that ‘for many families, pets are the equivalent of children and must be granted more consideration by courts to ensure that they will be properly cared for after a divorce.’ ” The court also considered societal norms regarding pets in hotel rooms and on planes, and concluded that “considering the various accommodations made for companion animals in general, along with the deep and affectionate bond Plaintiffs shared with their dog, it stands to reason that companion animals ... could also be recognized, as a matter of common sense, as immediate family.” However, it limited the rule to situations in which “the pet was leashed to the plaintiff at the time the negligent act occurred and the plaintiff herself was exposed to danger.” Thus, this case did not support extending NIED to the death of a cat outside the presence of, and danger to, her person. Her exposure to danger “did not go beyond witnessing the mechanical movement of the machine and unplugging it from the wall.”

For the remaining claims, “New York courts treat pets as personal property and consequently do not permit damages for emotional distress or loss of companionship.” But punitive damages might be available for strict products liability and GBL violations under appropriate circumstances.  

Amicus in support of cert in Lanham Act intent/damages case

 Truth in Advertising, Barton Beebe, Mark Lemley, Alexandra Roberts and I just filed a brief arguing that the Supreme Court should clarify the role of intent in Lanham Act cases.

Does "Dead Weeds in 1 Day" mean the entire weed will die, or just the visible part?

Scotts Co. v. Procter & Gamble Co., 2026 WL 482655, No. 2:24-cv-4199 (S.D. Ohio Feb. 20, 2026)

Previously, the court rejected Scotts’ request for a preliminary injunction of the trade dress of P&G’s Spruce brand of weed killer products, finding that it was not likely to be confused with Scotts’ Miracle-Gro. Scotts also makes Roundup and Ortho, relevant to the false advertising claims addressed here. The court dismissed one part of the claim but allowed the rest to survive.

Scotts challenged four different P&G statements (combined with certain visuals).

Dead weeds in 1 day

First, “Dead Weeds in 1 Day” and its accompanying visuals.  Scotts alleged that this was “literally false” because Spruce weed killer will not kill the entire weed within one day. Spruce is a “minimum risk product” as defined by the Environmental Protection Agency, and “[t]o date, all minimum risk products work by making contact only with the exposed portions of the plant and none directly affects the roots of the plant.” Thus, while “[w]ith regular application at certain dosages over time, a minimum risk product may eventually exhaust the roots’ storage of nutrients by repeatedly removing its leaves,” it will not kill the entire weed within one day.

Statement 2 uses the same visuals and has the same alleged problem: “Spruce works differently by dehydrating the weed down to the roots for dead weeds in just 1 day.”

visible results in 1 hour

Statement 3 promises “FAST Visible Results Within 1 Hour” or “visible results in 1 hour,” accompanied by before and after visual depictions. Scotts alleged that these “after-application images do not accurately portray typical results” of Spruce weed killer’s effects after only one hour.

Spruce works differently image

Statement 4 is titled “Spruce Works DIFFERENTLY.” It also says “WEEDS DEHYDRATE TO DEATH,” “1 HR,” and that “Without water, weeds dehydrate and die fast, showing visible results in 1 hour,” and was allegedly misleading for the same reasons.

P&G argued that Rule 9(b) should apply because false advertising “sounds in fraud.” Although this argument routinely works in consumer protection cases (because courts don’t like them), it fails here, as it sometimes does in Lanham Act false advertising cases. (Never in regular trademark cases, as far as I can recall.)

As P&G conceded, “[n]o Circuit has yet ruled on whether Rule 9(b)’s pleading standard generally applies to Lanham Act false advertising claims.” P&G’s theory of the law is that “if an element of any claim ‘requires an allegation of duplicity,’ it ‘implicates Rule 9(b)’s purpose’ and, therefore, Rule 9(b)’s heightened pleading standard applies.” And, because Scotts alleged intentional deception, the claim sounded in fraud.

But, as the court noted, “Lanham Act false advertising claims do not have a scienter element, so it is hard to see how they would require an allegation of duplicity.” The Sixth Circuit has applied the Rule 9(b) pleading requirements to some causes of action missing an intent requirement on par with the intent required for fraud—for example, to innocent misrepresentation. “But typically, courts do so when a ‘unified course of fraudulent content’ forms the basis of those non-fraud claims—especially if pleaded alongside fraud.” This is designed to prevent evasion of Rule 9(b).

Here, though, Scotts’ false advertising claim was based on the allegedly false and misleading nature of the statements themselves, not on the allegation that P&G is “willfully ... intending to deceive consumers.” “That is, if the statements are false, liability could attach even absent intent. So there is no indication that Scotts’ actual claim is fraud, with the false advertising claim only pled to circumvent Rule 9(b)’s strictures.”

More generally, “Lanham Act false advertising claims, while also based on ‘false’ statements, seem different in kind than traditional fraud claims.” Rule 9(b) is designed to ensure defendants have sufficient notice to respond. “But allegedly false or misleading advertisements typically run over an extended period of time, making it ‘unreasonable and contrary to the Sixth Circuit’s liberal construction of Rule 9(b) to require Plaintiff[s] to identify the exact day, hour or place of every advertisement’ that caused them harm.” Scotts clearly identified the statements it challenged, providing P&G all of the notice needed for it to respond. (It would also be possible to decide that this satisfied 9(b), as some cases have done.)

In addition, Lanham Act claims differ because Scotts was not alleging that it itself was defrauded, but that its customers are. “[G]iven that Scotts itself was not the defrauded entity, some of the who, what, when, where, and why questions that form the typical grist for Rule 9(b) may turn on information that Scotts itself does not have—information that instead rests only with the allegedly defrauded customers.”

Turning to the merits, Scotts plausibly alleged that statements 2-4 were false or misleading, but not the literal falsity of statement 1.

Recall that, on Scotts’ theory, Spruce weed killer does not directly affect the weed’s roots, so it does not (indeed cannot) kill the entire weed within one day (as the roots are still alive). P&G pointed out that the visuals do not depict the subterranean portion of the plant, and argued that “a ‘dead weed’ refers to a plant evidencing visible necrosis as featured in the accompanying image.” A statement “cannot be literally false if it reasonably conveys multiple meanings,” and that was the case here. “While consumers might plausibly take ‘dead weed’ to mean that the entire plant is dead, and will not grow back, consumers could also plausibly consider a weed evidencing visible necrosis (i.e., the visible green part is now brown and dead) to be a ‘dead weed.’”

Scotts did plausibly plead that Statement 1 was misleading. Statement 2 could also cross the line to literal falsity by claiming to dehydrate the weed “down to the roots for dead weeds in just 1 day.”

This is not ambiguous. The obvious meaning of this statement is that Spruce works—apparently in contrast to other weed killers—by dehydrating the whole plant, including the roots. It is not plausible that reasonable consumers would take the phrase “down to the roots” to mean just the above-ground portion of the weed. “Down to the [whatever thing]” conveys finality and the exhaustion of that thing. If coffee is good “down to the last drop,” one expects that the last drop will be good, as well. And if an event is planned “down to the last detail,” that means that the last detail is accounted for, too. True, sometimes phrases using this structure can mean something like “everything is gone except the thing.” For example, if a house is burned “down to the ground,” that does not suggest that the ground itself has burned. But even then, “down to [something]” means that the entirety of the thing is exhausted. The house burning “down to the ground” means that everything that can burn has; no part remains. Either way, weeds dehydrated “down to the roots” conveys that the roots, too, are dehydrated. Accordingly, there are not multiple reasonable interpretations of Statement 2 and Scotts has sufficiently alleged that it is literally false and misleading.

Statements 3 & 4 were also both plausibly false and misleading. “Scotts is alleging that weeds treated with Spruce weed killer will not have the visible results in one hour that the images depict. Or in other words, if you spray weeds with Spruce and wait one hour, the weeds do not in fact look like the pictures. Whether these images are actually inaccurate, and if the images and statements together are actually misleading consumers, are issues the Court will address later.”

(c) licensor's claims about competitor's allegedly worse licenses were opinion, not falsifiable fact

Tresóna Multimedia, LLC v. Pre-Cleared Ltd. D/B/A ClicknClear, 2026 WL 480858, No. 25-cv-6202 (GBD) (S.D.N.Y. Feb. 19, 2026)

Tresóna, a music copyright licensing entity, sued competitor ClicknClear for NY state and federal false advertising. The court dismissed the claim.

Since 2009, Tresóna has allegedly been issuing music licenses, on behalf of music rightsholders, to a “niche market” of “scholastic, community, and professional organizations.” Its main clients “include vocal ensembles, marching bands, color guards, show choirs, and other similar performing arts groups.” Its licenses cover certain musical works and sound recordings, including for “print, synchronization, dramatic performance, and remixing.”

ClicknClear entered the U.S. market in or about 2016 and later attempted to move into the “niche market” that Tresóna operates in – issuing licenses for musical works and sound recordings to scholastic, community, and professional organizations. It offers “licenses to various performance sports in which teams perform alongside recorded music, including artistic swimming, cheerleading, color guard, dance, dressage, figure skating, fitness, gymnastics, indoor skydiving, jump rope, and band/vocal ensembles.”

ClicknClear’s website informs consumers that “[t]here is often misleading information about what rights are required for ensembles to make an arrangement of music to accompany your routine.” ClicknClear states that “the rights that are needed to use a song in your performance” include the right to 1) “[p]ractise alone;” 2) “[s]et choreography to the song(s);” 3) “make copies of the arrangement for personal (practise) use; and 4) “[p]erform the routine in public with music: practise and competition.” ClicknClear states that “ClicknClear offer[s] all of these rights with our standard license.”

ClicknClear further purports to offer “legal services,” on its website, including “legal advice for owners and users of intellectual property rights, copyright and related rights.” And it offers a “License Verification System” (“LVS”) feature on their website that purports to evaluate and verify third party licenses, including Tresóna’s licenses. Users select the events at which the user is performing or competing, upload a sound recording of the sound, and upload proof of licensing documentation. The LVS returns one of three possible outcomes for the user; “green” for licensed, “yellow” for unverified, and “red” for unlicensed. The LVS only returns an automatic “green” result if the license is from ClicknClear, while any license issued by third parties will return a “yellow” result. ClicknClear has stated that when consumers receive an “unlicensed” or “unverified” result via the LVS, it causes them to “panic.”

In a prominent Facebook group for marching band arrangers, an individual defendant suggested (and then retracted after Tresóna’s C&D) that ClicknClear is able to offer better licenses at a lower price than Tresóna because Tresóna does not use a “pre-cleared model.” In a presentation given to potential consumers, ClicknClear suggested that its licenses are “stronger” than those offered by Tresóna as they cover “all” of the rights necessary, while suggesting that “Tresóna does not offer a full license but rather only a certificate.”

First, the challenge to ClicknClear’s statements about what rights are necessary: Tresóna argues that the statements were both literally and impliedly false because these are “illusory” rights that consumers do not need in all situations. The court found that these were non-actionable opinions about the law. “As both sides agree, the necessity of these rights involve unclear and contested areas of copyright law. Indeed, ClicknClear and Tresóna devote most of their briefing to arguing whether or not each subset of the necessary rights (to set a choreographed routine, to publicly perform, and to practice alone) are actually needed by consumers.” Given this dispute, ClicknClear is “expressing an opinion on an inconclusive question of law” and “not making representations of verifiable or ‘hard definable facts.’ ”

Even if these weren’t opinions, they were ambiguous: ClicknClear mentions on its website, quite ambiguously, which rights are “required for ensembles to make an arrangement of music to accompany your routine.” “In order for these statements to be literally false, Tresóna would have to plausibly allege that there is no instance in which these rights are required.” But whether or not these rights are needed in a given case depends on the outcome of a “fact-specific and [ ] individualized inquiry” in this “unsettled area of copyright law.”

That didn’t prevent misleadingness, but for that, Tresóna needed to “allege that consumers or retailers were misled or confused by the challenged advertisement and offer facts to support that claim” or allege deliberate, egregious deception. It didn’t. It alleged that “[c]ustomers have told Tresóna that they are facing pressure from their federations and governing bodies to use ClicknClear instead of Tresóna,” and “the pressure is driven at least in part because of ClicknClear’s false and misleading statements as well as the LVS.” But it was not enough to “identify[ ] a broad swath of people [that were] allegedly deceived.” (Now do trademark complaints.) “Tresóna fails to identify any ‘federations’ or ‘governing bodies’ that pressured consumers, nor does Tresona allege how this pressure has caused customers to buy ClicknClear’s licenses as opposed to Tresóna’s. And even if Tresóna did allege that customers were buying ClicknClear licenses as opposed to Tresóna’s, Tresóna does not allege how these decisions were because of ClicknClear’s necessary rights statements as opposed to other reasons for purchasing ClicknClear’s licenses.” [I dunno, ‘take this license and not that one to protect yourself against expensive lawsuits’ seems pretty clear in its pressure effect.]

Merely stating that there have been “LAWSUITS for copyright infringement” was literally true and thus not actionable. It also didn’t relate to an “inherent quality or characteristic of the product [at issue].”

License verification system: Was it misleading that all other licenses issued by third parties, including Tresóna’s, will return a “yellow” result, meaning the license’s legality is “unverified,” or red for “unlicensed”? No: “The LVS, ultimately, is an inherently subjective rating system that evaluates the quality of third-party licenses. Indeed, the outcome of the LVS is dependent on which factors ClicknClear believes to be important in evaluating a license. ‘A reasonable consumer would view [LVS’s] rating as just that – the defendant’s evaluation.’”

And even assuming the statements were impliedly false or misleading, Tresóna similarly failed to allege sufficient indications of consumer confusion. “The unauthorized practice of law is not a basis for a Lanham Act claim.”

Anti-Tresóna statements: ClicknClear’s statements about Tresóna’s “very bad reputation,” its representations that ClicknClear licenses are “better” or “stronger” than Tresóna’s, and its assertions that ClicknClear was in a “strong position” to harm Tresóna were nonactionable puffery.

By contrast, ClicknClear’s statements in 2021, 2024, and 2025, that Tresóna does not use a “pre-cleared model,” or that Tresóna does not offer a full legally compliant license but instead offers a “certificate,” were statements of facts that could be proven true or false. Still, Tresóna didn’t offer facts as to how these statements actually misled the public or affected their purchases, or that the statements were commercial speech: “part of an organized campaign to penetrate the relevant market.” “The statements alleged here, one in a Facebook post that has now been deleted, and two upon information and belief, do not suggest ‘widespread dissemination within the relevant industry,’ and more aptly resemble ‘isolated disparaging statements’ that ‘do not have redress under the Lanham Act.’”

The court didn’t have to reach the state claims, but it commented that Tresóna also failed to allege how ClicknClear’s statement constituted harm to the public interest, as opposed to another business.

Fairlife brand name plausibly misleading where cows allegedly lived abuse-filled lives of suffering

Bhotiwihok v. Fairlife, LLC, № 2:25-cv-01650-ODW (AGRx), 2026 WL 413749 (C.D. Cal. Feb. 13, 2026)

“In 2014, Select Milk, a dairy cooperative, partnered with Coca-Cola to launch Fairlife, a company with an eponymous line of premium milk and milk products…. Fairlife promotes, and charges more for, high levels of environmental sustainability and animal care.”

Fairlife bottles include the phrase “Recycle Me” on their labels and are stamped with a recyclability arrow, and it claims that its farms are “top in the industry for environmental sustainability.” Plaintiffs alleged that 0% of Fairlife bottles are recyclable and that the sustainability practices at Fairlife’s farms cause disproportionate environmental damage.

Fairlife also allegedly claims to follow industry-leading animal care standards and to have zero tolerance for abusive practices at farms supplying its milk, as represented by its logo:

Fairlife logo

But successive independent investigations have allegedly uncovered “horrendous animal abuse” at farms supplying Fairlife’s milk, which I will not recite but are indeed horrendous.

Plaintiffs alleged the usual California claims.   

Although the court found that plaintiffs hadn’t plausibly alleged enough Coca-Cola involvement to keep the parent company in, claims against Fairlife survived. The only allegations with sufficient particularity involved the Fairlife Logo and the recyclability claims on Fairlife’s bottle label. Nor did plaintiffs successfully plead fraudulent omission. Courts have required plaintiffs to “describe the content of the omission and where the omitted information should or could have been revealed, as well as provide representative samples of advertisements, offers, or other representations that plaintiff relied on to make her purchase and that failed to include the allegedly omitted information.” Although plaintiffs pled that Fairlife “intentionally fail[ed] to disclose material information about the products,” including that Fairlife’s products are derived from abused cows and that the products’ packaging is not recyclable, they didn’t identify where this information should or could have been revealed or which specific “advertisements, offers, or other representations” omitted critical information. Leave to amend granted if there was more.

Claims based on the logo survived as a plausible misrepresentation of Fairlife’s animal care practices. “[B]rand names can be an especially powerful source of misleading information,” even if the brand name itself is not a recognized word. Combining the words “fair” and “life” together in a brand name “may reasonably lead to the assumption that the subject of the brand lives a ‘fair life.’” Superimposed on a cartoon picture of a cow, “the implication becomes unmistakable: the cows are living a fair life. Thus, it is well within reason for a consumer to believe that, based on the Fairlife logo, the cows supplying Fairlife’s dairy products are living lives free from abuse.”

Fairlife argues that its logo was nonactionable puffery. But the Fairlife brand name, “at bottom, suggests that the cows are living lives free from abuse.” That was specific enough for a reasonable consumer to rely on, especially in context of the cow image. “Taking as true at this pleading stage the substantial evidence that shows Fairlife sources its dairy from cows that live dreadful and appalling lives, it is plausible that Fairlife’s labeling is misleading.” This may be an example of the line of cases that refuses to find puffery when no reasonable person could agree that an otherwise capacious term applied.

Recyclability claims on the bottle: Fairlife argued that California provided a safe harbor provision through October 4, 2026. The FAL’s specific regulation of recyclability claims specifically does not apply to “[a]ny product or packaging that is manufactured up to 18 months after the date the department publishes the first material characterization study required” by the law (or before January 1, 2024 if that was later). “Read plainly, it appears that the California Legislature intended to give companies eighteen months after publication of a generally applicable material characterization study to comply with recycling guidelines.” This occurred on April 4, 2024. This safe harbor provision foreclosed the recyclability claims until later in the year. When “specific legislation provides a ‘safe harbor,’ plaintiffs may not use the general unfair competition law to assault that harbor.” Nor may they use express warranty claims.

disgorgement can't be a lottery windfall--even when D was engaged in illegal gambling

TNT Amusements, Inc. v. Torch Electronics, LLC, 2026 WL 411747, No. 4:23-CV-330-JAR (E.D. Mo. Feb. 13, 2025)

Previously. TNT leases traditional arcade games in retail locations throughout Missouri. Torch Electronics leases “no-chance” gaming devices in the same market. A jury accepted TNT’s argument that Torch’s devices are illegal slot machines that divert TNT’s customers in violation of state law. Statements that the devices eliminated chance were false, and therefore the statement “this amusement device does not fit any definition of a ‘gambling device’ in the state of Missouri and is not prohibited for use by you” was also false. The jury awarded $500,000 in damages, which the court found was $125,000 for lost profits and the rest for injuries to TNT’s reputation and goodwill. (In a separate opinion, 2026 WL 413322, the court enters declaratory judgment that these are illegal gambling devices in Missouri, given the trial evidence, including from both parties’ experts, that the games contain “multiple elements of chance.”)

The court also found the case exceptional for purposes of attorneys’ fees. “[T]he Missouri Gaming Commission declared Torch Devices illegal in 2019. However, because the Commission’s jurisdiction is limited to licensed operators, Torch simply ignored the Commission’s opinion and continued to operate outside the Commission’s regulatory reach.” The Missouri Highway Patrol and multiple local law enforcement agencies also warned Torch that its devices were illegal, and several prosecutors pursued charges against its customers, and one store was convicted. “Missouri jurisprudence since 1913 has held that a gaming machine with a prize viewer is still a gambling device. Appellate courts in sister states have reached the same conclusion in recent years, as cited in the Commission’s 2019 opinion.”

Thus, “Torch was on notice since at least 2019 that its commercial representations defied the realities of the legal landscape and were therefore willfully and deliberately false when viewed in context. Torch simply chose to ignore existing authority in pursuit of profit. For the same reasons, the substantive strength of TNT’s position, both in fact and law, was exceptionally compelling, as reflected by the jury’s swift and significant verdict in TNT’s favor.” There were also some litigation shenanigans.

The court also planned to award partial disgorgement; out-of-circuit precedent suggests as factors “whether the defendant had the intent to confuse or deceive, whether sales have been diverted, the adequacy of other remedies, any unreasonable delay by the plaintiff in asserting its rights, the public interest in making the misconduct unprofitable, and whether the case involves palming off.” And, as the Supreme Court said, “A ‘defendant’s mental state is a highly important consideration in determining whether an award of profits is appropriate.’ ” Ultimately, “the district court is given broad discretion to award the monetary relief necessary to serve the interests of justice, provided it does not award such relief as a penalty.”

From 2017 to 2023, Torch collected over $5.5 million from 100 machines in locations where it overlapped with TNT, though Torch operates more than 6,000 devices statewide and might have profited by $68 million in the past year alone. The court declined to order statewide disgorgement (which suggests that Torch will still continue to break the law unless stopped by regulators) but did ask for briefing on appropriate disgorgement.

Torch relied on Retractable Techs., Inc. v. Becton Dickinson & Co., 919 F.3d 869 (5th Cir. 2019), “where the Fifth Circuit opined that disgorgement, separate from recovery of diverted profits, would have constituted a windfall to the plaintiff.” The court found this non-binding case “largely inapposite,” but noted that it still affirmed the broad discretion of a district court to consider the equities.

Torch also argued that it had a good faith belief in the veracity of its statements, based on a 2017 opinion letter from a Chicago law firm and the fact that some county prosecutors opted not to pursue charges involving Torch devices. “But the opinion letter was supplied by an Illinois lawyer prior to the Missouri Gaming Commission’s unequivocal warning in 2019, and the county prosecutors who abstained from pursuing charges did so in direct reliance on Torch’s false statements at issue here…. Overall, the evidence belies any objectively reasonable claim of good faith.”

In addition, Truck Equip. Serv. Co. v. Fruehauf Corp., 536 F.2d 1210 (8th Cir. 1976), although based on an earlier version of the statute, supported the view that “where the evidence shows willfulness and bad faith, disgorgement may exceed a plaintiff’s demonstrated losses in order to serve as a deterrent.” The court was also sympathetic to TNT’s argument that “the Lanham Act offers multiple forms of recovery precisely due to the inadequacy of diverted sales and the difficulty of proving the full extent to which a defendant’s misconduct has harmed the plaintiff or impacted the market.” The court wasn’t convinced that the amount awarded by the jury fully compensated TNT for the totality of its market injury, given that TNT was a long-established business that suffered a loss of 35% after Torch entered; some of TNT’s accounts lost to Torch had been TNT customers for 20 to 30 years. Though the parties compete for floor space, TNT’s owner explained that “it’s not a fair fight” and “We can’t generate the revenue that slot machines generate.”

The court also found that deterrence was an important consideration and that disgorgement would serve the interests of justice and further the public interest of making Torch’s conduct unprofitable. “If Torch hadn’t falsely represented and marketed its devices as ‘no-chance’ games exempt from Missouri’s definition of a gambling device, Torch couldn’t have operated anywhere in its current territory. Rather, it could only have operated in licensed casinos subject to state gaming taxes benefiting public education. One hundred percent of its revenue is attributable to its misrepresentations.”

However, given the scope of Torch’s operations, “a disgorgement award sufficient to render Torch’s advertising unprofitable would inevitably result in a ‘lottery-level windfall’ to TNT.” Thus, disgorgement limited to overlapping locations was appropriate to deter Torch’s willful conduct “and render it at least slightly less profitable, to fully compensate TNT for its market loss, and to serve the greater interests of justice given the unique circumstances of this case.” Consumers spent over $32 million on Torch devices in overlapping locations alone during the relevant period. “Torch has profited tremendously from its misrepresentations and had avoided regulation, taxation, and prosecution by virtue of its government relations efforts and the Gaming Commission’s limited jurisdiction. In this regulatory void, TNT’s lawsuit not only vindicates its own competitive interests but also protects consumers from the fallacy of ‘no-chance’ gaming going forward.” Further briefing, and possibly discovery, was required to set the size of the award.

CFP: emerging First Amendment scholars

Second Annual Aspiring Free Speech Scholars Workshop
jointly sponsored by the Sandra Day O’Connor College of Law (ASU)
and the Hoover Institution (Stanford University)

Are you a law student, judicial law clerk, lawyer, or beginning academic hoping to publish a journal article on free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?

If so, send us your draft by Sunday, August 16, 2026. (This should still be a draft article, not an article that’s already published or expected to be published within six months.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop where they can present their papers and get helpful feedback on them. The workshop will be Saturday, October 24, 2026 (with dinner the night before) at the Sandra Day O’Connor College of Law in Phoenix, and we will inform the selected authors by Tuesday, September 8, 2026.

We have funds to pay for transportation and lodging for the selected authors’ trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles. 

We also plan to officially recognize zero to three of the top articles among those we review. If the authors wish, they can also have their articles reviewed for publication in the Journal of Free Speech Law (http://JournalOfFreeSpeechLaw.org), presumably after they revise the articles in light of the workshop feedback.

If you’re interested, please submit your draft at http://tinyurl.com/aspiring-free-speech (Google logon required). Please single-space, and format the article nicely, so we can more easily read it.

Please do not include your name or law school affiliation in the document or document filename, and please do not include an author’s note thanking your advisors and others. Please make your filename be the title of your article (or some recognizable subset of the article title). We want to review the article drafts without knowing the authors’ identities.

If you have questions, please check http://tinyurl.com/aspiring-free-speech-faq; if your question isn’t answered there, please e-mail volokh@stanford.edu.

Many thanks to the Stanton Foundation for its generous support.

* * *

James Weinstein, Dan Cracchiolo Chair in Constitutional Law and Professor of Law, Sandra Day O’Connor College of Law, Arizona State University

Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover Institution (Stanford University), and Gary T. Schwartz Distinguished Professor of Law Emeritus, UCLA School of Law

"ambiguity" is taking hold in consumer protection class actions, but it's not the Lanham Act concept

Ramirez v. S. Martinelli & Co., 2026 WL 272621, No. 25-cv-07569-NC (N.D. Cal. Feb. 2, 2026)

Martinelli’s apple juice products’ front labels state either “Premium 100% Juice Not From Concentrate” or “100% Juice From U.S. Grown Fresh Apples.” The products now contain ascorbic acid, a preservative, listed in the ingredients on the products’ back labels. Martinelli allegedly intentionally designed the products’ labeling so they appear to contain only juice because consumers are willing to pay more for a product without additives, and charges roughly fifty percent more than comparators. FDA and state law allegedly requires “with added preservatives” on the front label.

Plaintiffs brought NY and California statutory claims, which the court declined to dismiss.

The court found deception plausible: “Premium 100% Juice Not From Concentrate” and “100% Juice from U.S. Grown Fresh Apples” were “likely to deceive a reasonable consumer into believing that the products contain only apple juice, without other ingredients. That is, reasonable consumers could see the front label as making an unambiguous representation which would not require further information.”

Under consumer protection precedents, “[j]ust because the labels are subject to two reasonable interpretations—that the product is 100% juice, or that the juice is 100% from fresh apples/not from concentrate—does not make it ambiguous” such that a reasonable consumer is required to consult the back label.  Instead, the labels could be “unambiguously deceptive to an ordinary consumer, such that the consumer would feel no need to look at the back label.” 

[I think it’s bad to have two different definitions of “unambiguous,” one for competitors and one for consumers, applied to the same “false advertising” concept, especially since none of the courts I’ve seen have acknowledged this difference or given a theoretical justification therefor. These conflicting definitions are inevitably going to cause legal confusion. “Plausibly sufficient to convey a specific false message, without the consumer needing to check for more information” might be better than “unambiguous” for the consumer protection class action context; it much better captures the concept although it is of course longer.]

Nor did the claims rest solely on a violation of federal law: the front labels were plausibly misleading and the plaintiffs alleged reliance and resulting injury.

The court did kick out a punitive damages request, but not warranty/unjust enrichment claims or a request for injunctive relief.

conducting dueling internet searches converts attys into fact witnesses in TM case

Vicious Brands, Inc. v. Face Co., No. 24-cv-04996-LJC, 2026 WL 276178 (N.D. Cal. Feb. 3, 2026) (magistrate)

Plaintiff, aka Saints & Sinners, sued Face, aka Skin Saint, alleging trademark infringement and false advertising. The court granted the motion to dismiss the false advertising claims but denied summary judgment on trademark infringement, except for reverse confusion, reflecting the higher barriers to false advertising claims.

Plaintiff has sold Saints & Sinners haircare products since 2016, using a mark that includes two horizontally conjoined instances of the letter S:

It has registrations including that mark.

Defendants sell beauty consultation services and skincare products under the Skin Saint trade name, using a mark that consists of two vertically conjoined instances of the letter S:

They began using it in 2021; Saints & Sinners first learned of it in 2023. “Defendants sell their products through a physical location in Michigan and, to a lesser extent, nationally through their website” and through shop.app. They promote themselves on social media and some national television appearances.

Saints & Sinners alleged that it has been planning to expand into skincare.

False advertising: Saints & Sinners alleged that “Defendants have engaged in false advertising by making misleading and deceptive claims about their products in commercial advertisements and promotions, including representations that their products are medical grade, provide anti-aging results equivalent to that of medical cosmetic treatments like injectable fillers and toxins, and reverse/prevent aging changes in the skin.”

But Saints & Sinners didn’t have standing because there was no imminent injury. (Why is there standing to claim trademark infringement, then? Sigh.)

It alleged that it was “ready to launch its skincare line upon finalization of product attributes and regulatory review,” and that its products would “directly compete with the serums, creams, and other topical formulations marketed and sold under Defendants’ brand … namely: cleanser; moisturizer; creams; cleansers [sic]; toners; masks; skin treatments; and serums, all in Class 3.” It also alleged that both parties sell through e-commerce to the same general consumer demographics seeking moisturizing, antioxidant, and anti-aging skincare products, targeting the same customer demographics— “customers seeking luxury and performance skincare products”—and sold through overlapping channels, including online retail/ecommerce platforms like Amazon.

The Supreme Court has “repeatedly reiterated that threatened injury must be certainly impending to constitute injury in fact, and that allegations of possible future injury are not sufficient.” In Lanham Act cases, the Ninth Circuit has “generally presumed commercial injury when defendant and plaintiff are direct competitors and defendant’s misrepresentation has a tendency to mislead consumers.” A plaintiff can meet that burden “using actual market experience and probable market behavior,” which in the absence of “lost sales data” might be done by “creating a chain of inferences showing how defendant’s false advertising could harm plaintiff’s business.” At issue here was “harm to reputation or sales, which generally arises from direct competition.”

For Article III, the court pointed to the classic Lujan case, where environmental plaintiffs’ “mere profession of an intent, some day, to return” to sites allegedly harmed by the challenged projects was insufficient to satisfy Article III’s injury requirement. As there, “the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff’s own control.”

In Tercica, Inc. v. Insmed Inc., No. C 05-5027 SBA, 2006 WL 1626930 (N.D. Cal. June 9, 2006), the court found false advertising standing against an intended competitor in the pharmaceutical industry where the plaintiff had obtained “FDA approval ... and product distribution [was] likely imminent.” And courts and commentators have stated that “actively preparing to produce the article in question” is sufficient as “the last point before the point of no return” in the context of declaratory judgments. But this wasn’t a declaratory judgment case where the plaintiff would otherwise risk infringement liability. “So long as there are necessary steps beyond Plaintiff’s control, or doubt as to if or when a competing product will actually come to market, Plaintiff has alleged only ‘possible future injury’ as a result of Defendants’ purportedly false advertising, rather than the ‘certainly impending’ injury necessary ‘to constitute injury in fact.’” The allegations here indicated that Saints & Sinners’ products remain subject to “finalization of product attributes and regulatory review” before they come to market, “raising questions of whether their launch could still be derailed.”

This analysis also applied to statutory standing under Lexmark. The court did, however, reject any suggestion that a competitor in a “market [with] numerous participants” lacks a sufficient expectation of “ ‘automatically’ displace[d]” sales to support standing under the Lanham Act— “a premise that would seem to preclude most if not all Lanham Act false advertising claims in typical markets with multiple competitors.” The allegations of the complaint were sufficient to support a plausible inference that, if or when Sinners & Saints products come to market, at least some of them will compete directly with at least some of defendants’ products. Leave to amend granted.

Trademark/summary judgment: I gotta admit, this one seems extremely thin to me, but nonetheless the parties must proceed on the forward confusion theory.

Plaintiff’s double-S mark appears on many (perhaps all) of its products, typically with the double-S mark positioned above Saints & Sinners, which is in turn positioned above a product title. The product packaging tends to be a solid color or gradient, with the mark and text generally displayed in monochrome white, silver, or black. Saints & Sinners products are mostly sold at suggested retail prices ranging from $20 to $95, and in third-party beauty subscription boxes. And, as discussed, Saints & Sinners planned to expand.

Skin Saint’s founder testified at a deposition that she used a “logo generator” to develop a new mark in 2020, and settled on the double-S mark because it was visually appealing and resembled her logo for her related FACE clinic, which “is a wave with an F.” She did not research whether the mark was similar to other marks used by other companies. Skin Saint’s products often display their double-S mark positioned vertically above the words “SKIN SAINT,” in turn above a product name or description. The packaging is white and the mark and text are black. Since they began using the accused mark in 2021, defendants have sold significantly more Skin Saint products through their clinic than through their website.

Saints & Sinners learned of Skin Saint’s mark from a trademark watch report that characterized defendants’ mark as having a “Low risk” of conflict with plaintiff’s mark. Plaintiff nonetheless opposed, which is ongoing.

Plaintiff’s counsel offered “screenshots of searches [he] personally conducted on the SHOP.app website” that show some of defendants’ products among search results for the search query “Saints and Sinners skincare” and other similar queries. But defense counsel was unable to replicate those results and did not find any of defendants’ products when running the same searches on Shop.app. (Hmm… a personalized algorithm might be doing this if, as is plausible, plaintiff’s counsel had sought out defendants’ products before.) Defendants’ sales through Shop.app were 28 orders for a total of $2,468 in the first ten months of 2025 and less in 2024.

There was no evidence of actual confusion or other harm. “A Google search for either party’s name does not return the other party’s website or products in the first ten pages of results.” Several other skincare and haircare brands use marks with a double S, but none use “saint” or “sinner” in their trade names.

Saints & Sinners also submitted an expert declaration from “a beauty industry consultan[t] specializing in market strategy and consumer behavior across skincare, haircare, and adjacent personal care categories” who opined that haircare and skincare markets were converging to focus on scalp care (the “skinnification” of hair), that impulse buying of beauty products in the social media era was common, and that consumer confusion was likely, although the court didn’t rely on that last for its summary judgment ruling.  

As for those searches on shop.app: “Whether intentionally or not, both parties’ attorneys have made themselves fact witnesses, and the Court now orders that the parties may take their depositions regarding the limited issue of their Shop.app searches within the time that the parties have reserved for other specific depositions.” The court wouldn’t disregard either parties’ attorneys’ searches. [Not sure depositions would help if the issue is algorithms! Bringing in the specific computers, or at least logging in as the specific attorneys, might do more.]

Basically, the multifactor confusion inquiry means that it’s hard to grant summary judgment for defendants. Unfortunately, along with deeming the double-S logo arbitrary and possessed of some commercial strength, the court also quoted out-of-circuit precedent that incontestable registrations “are presumed to be strong marks.” [I didn't pull the registrations--but the description that the registrations "include" rather than consist of the double-S would also cut against this conclusion, since what is incontestable is the registration as a whole, not parts of it.]

For reverse confusion, though, “Defendants’ relatively modest sales—at least on the scale of the national skincare or beauty market as a whole—undermine any implication that Defendants pose a serious risk of dominating the public’s perception of the market.”

And, though the parties’ “marks have meaningful differences, such that someone comparing them side by side would never consider them to be the same mark,” there was enough similarity to go to a jury, even though it was perhaps “a close call,” given the parties’ monochromatic color palettes and overlapping use of “saint.”

And, even if a lack of survey evidence should be presumed to favor the defendant, “whether a presumption has been overcome is normally a question for the jury.” [I think this presumption is best applied to large companies with large litigation budgets: if P&G doesn’t submit a survey, we can infer that it expected bad results. I don’t think it’s a good idea to disregard the absence of a survey in all summary judgment contexts, but the court here does because it focuses on the Ninth Circuit’s caution that summary judgment is disfavored in trademark infringement cases.]

Likewise, the court discounted the absence of any actual confusion evidence because the parties weren’t in “direct local competition over a period of several years.” “It remains possible that consumers have confused the two marks, and either purchased or declined to purchase products based on that mistake, without alerting either party to their having done so.” How is the jury to assess this possibility in assessing likelihood?