Last week I read a smart post about some of the shortcomings of the now 20-day-old California Consumer Privacy Act (CCPA), and how it may not cover downstream data resellers in any kind of an effective way. I encourage anyone working in the data protection space to...
Reforming Copyright Law Last time, I questioned the premises and theses of the common notion that the “Blurred Lines,” “Stairway to Heaven” and “Dark Horse” cases are chilling creativity. My main point was that the only way to determine whether this was happening is...
And What Should We Do About It? Ever since the shocking “Blurred Lines” jury verdict, there has been a steady drum beat about how that case, and some subsequent music-and-copyright cases, has chilled songwriting. Since “Blurred Lines,” the same U.S. District Court has...
2019 will be remembered as the year we still tried to figure out how to get the GDPR right, we spent time trying to understanding what “sale” will mean under CCPA, and we went through about two data breaches a day. Will next year be more of the same? The CCPA will...
When Is it Appropriate to Knock Out a Copyright Case Based on Lack of Substantial Similarity? Last week, the Ninth Circuit Court of Appeals revised its opinion in the “Haters Gonna Hate” case, Hall v. Swift, which I blogged about recently. The main holding remains the...
Why Did the Easy One Fail and the Hard One Succeed? Many years ago, the Vinh-Sanh Trading Corporation began selling rice it imported from southeast Asia under the following trademark, which it called the THREE LADIES BRAND: Here it is on a bag of Thai jasmine rice:...
Strangely, this quote comes right after Wang notes that a jury ruled in FAVOR of Led Zeppelin.
I.e., when the Constitution and Bill of Rights were drafted and ratified.
The song “Dark Horse” supposedly infringes on.
It’s bizarre because the musicologists rely on evidence and expert testimony that is not before the court. You can’t do that.
He also sued Kesha’s mom twice in Nashville for defamation.
My own sense here in Nashville is that these cases are kind of ridiculous, but no one is going to change their songwriting method because of them. Then again, I don’t hang out with the sort of upper-echelon types who have more to lose. A struggling songwriter is going to take his or her chances, or else pack it in.
To be clear, fair use might care about how I use your tune, but my own creativity doesn’t much enter into the analysis.
Strictly speaking, everything that happens between the pleadings and trial is “pre-trial,” and discovery is just the most important thing that happens during the pre-trial stage. Also, strictly speaking, the pleadings can be amended well after the “pleadings stage.” So these stages aren’t precisely delineated, but they’re useful.
The plaintiff is not expected to have extrasensory powers, so if the plaintiff merely has a reasonable basis to believe something is so, it may allege that fact “on information and belief.” For example, if you honestly believe the defendant did something knowingly, you can allege, “On information and belief, the defendant carried out these actions knowingly.”
Normally, a defendant’s affirmative defenses can’t be used to attack the complaint, unless the plaintiff alleged facts in the complaint that make out the elements of an affirmative defense. This is rare, because plaintiffs will avoid alleging such facts, but it’s unavoidable.
More rarely, the plaintiff can move for summary judgment, but this is usually much harder.
There are three judges on an appellate panel.
This case is remarkable also because the plaintiff’s case was argued by well-known former Ninth Circuit judge.
There’s some dispute about this, but it appears Vinh-Sanh’s Laotian woman has been replaced with a Hmong woman.
Honest question: what DO we know about this?
Regardless of its reasoning, this denial was justifiable. TROs are drastic. One way to think of them is: can you live even two weeks without it? Few cases are so urgent.
You need not know the name of the company, only that the products come from or are backed by the same “source,” which is why trademarks are sometimes described as “source indicators.”
Wait, isn’t that what trademarks are for, so DON’T have to open up the bag and measure the differences? Oh, never mind.
Full disclosure: I buy my running shoes at Fleet Feet, now that the venerable Athlete’s House in Belmont University has closed.
Er, service mark. Whatever.
Many courts are highly skeptical of the theory of “reverse confusion,” but this court isn’t one.
And it isn’t over. Nike has appealed.
Apparently. I haven’t independently researched this, but if it were otherwise, it seems Nike didn’t raise it or emphasize it enough. Since Nike sealed most of its filings, I can’t tell.
Ironically, the consumers’ interest in “forward confusion” cases, like Vinh-Sanh’s, is much greater than in “reverse confusion” cases, like Fleet Feet’s. The danger facing Fleet Feet is that its goodwill in its marks will be squashed flat by Nike. I doubt consumers would care much.