The Ninth Circuit STILL Thinks Keyword Metatags Matter in 2018–Adidas v. Skechers

13 08 2018

Technology & Marketing Law Blog

May 11, 2018

[ed’s note: Eric always argues that metatags are old school, irrelevant, and don’t mislead. He does so, even when a Circuit court case rules that THEY DO STILL MATTER].

Yesterday, the Ninth Circuit ruled about trademarked stripes on tennis shoes. To me, legally weaponizing dots in three lines on a shoe predictably leads to wasteful and possibly anti-consumer litigation. However, instead of critiquing the opinion generally, I’ll isolate just one aspect.

The court says:

Skechers placed metadata tags on its website that directed consumers who searched for “adidas Stan Smith” to the page for the Onix shoe. “Using another’s trademark in one’s metatags is much like posting a sign with another’s trademark in front of one’s store.” Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1064 (9th Cir. 1999). We agree with the district court that “the only reason ‘adidas Stan Smith’ is a useful search term is that consumers associate the term with a distinctive and recognizable shoe made by adidas.” Therefore, the district court did not clearly err by finding that the Stan Smith had acquired secondary meaning.

Instead of the multitude (dozens?) of Ninth Circuit cases interpreting online trademark law in the past two decades, this court in 2018 actually reaches back to the Brookfield billboard analogy from 1999? FFS. As I explained in 2005, Brookfield’s billboard analogy is irreparably flawed. Even in keyword metatag’s halcyon days when they had minor technical relevance, keyword metatags that are processed only by automated bots bear zero resemblance to a physical space sign that consumers see.

Case citation: Adidas America, Inc. v. Skechers USA, Inc., No. 16-35204 (9th Cir. May 10, 2018)

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Lanham Act Injunction Floored Where Social Media Criticisms Were Not “Commercial Advertising”

13 08 2018

Proskaueh on Advertising Law

Lawrence Weinstein, Alexander Kaplan and Evelyn Pang

May 21, 2018

[ed’s note: this is not an IP law case per se. However, it applies the Lantham Act in a social media context, or more to the point, it shows that the Lanthan Act cannot be used merely to constrain criticism on social media]

A judge in the Western District of Wisconsin recently denied a motion for a preliminary injunction that sought to prevent a customer from criticizing the plaintiff’s products over social media.  Buckeye Int’l v. Schmidt Custom Floors, 2018 WL 1960115 (W.D. Wis. Apr. 26, 2018).  Plaintiff Buckeye sells floor finishing products, and defendant Schmidt is a flooring installer and refinisher.  Schmidt purchased Gym Bond, Buckeye’s floor finishing product, to facilitate the bonding of a clear topcoat to finished hardwood sports courts.  When the topcoat peeled off, Buckeye blamed Schmidt and refused to pay for repairs and refinishing.  Schmidt then complained about Gym Bond and Buckeye on social media, which caused Buckeye to sue Schmidt for false advertising under the Lanham Act and seek a preliminary injunction barring Schmidt’s social media postings about Buckeye and its product.

 

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Another Court Says Competitive Keyword Advertising Doesn’t Cause Confusion

2 08 2018

Technology & Marketing Law Blog


May 1, 2018
This is a lawsuit between two Alzheimer’s-related non-profit organizations, the Alzheimer’s Association (the more established and better-funded group) and the Alzheimer’s Foundation (the relative upstart). I blogged a prior 2015 ruling.

The potential for brand collisions in consumers’ minds seems obvious. For example, “Between 2007 and 2012, Alzheimer’s Association received more than 5,700 checks made payable to “Alzheimer’s Foundation” or a variant totaling over $1.5 million…AFA, in turn, received more than 5,000 checks between 2006 and June 2016 made payable to “Alzheimer’s Association” or near variants.”” . . . .

Both parties used competitive keyword advertising.

The Court Ruling

Case citationAlzheimer’s Disease and Related Disorders Association, Inc. v. Alzheimer’s Foundation of America, Inc., 2018 WL 1918618 (S.D.N.Y. Apr. 20, 2018)

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GoDaddy & Instagram Avoid Liability for Users’ Photos of Knockoff Goods–Franklin v. X Gear 101

26 07 2018

Technology & Marketing Law Blog

July 25, 2018

[ed notes: copyright, trademark, patent, all three]

The plaintiff owns copyright and trademark registrations in a bear logo. He claims a defendant created a similar-looking bear logo and marketed goods using that logo:

I’ll focus on the court’s treatment of plaintiffs’ claims against GoDaddy and Instagram. The court summarizes:

The Complaint’s only allegations that explicitly reference Instagram and GoDaddy are that GoDaddy provides web hosting services to X Gear and Tydlacka, and that Instagram provides an application on which X Gear and Tydlacka publish images of the infringing logo. We thus construe the Complaint to allege that Instagram and GoDaddy are contributorily liable for trademark and copyright infringement because they induced X Gear and Tydlacka’s actions.

The magistrate recommends dismissing both parties from the lawsuit:

Case citation: Franklin v. X Gear 101, 2018 WL 3528731 (S.D.N.Y. July 23, 2018).

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Trademarks, social media and lessons learned

17 07 2018

Brand Protection Blog
Susan Ross (US) on July 10, 2018

On June 14, 2018, a federal trial court in New York issued a decision relating to a restaurant owner’s claim that the restaurant manager was using the owner’s trademarks on social media in violation of the federal trademark law known as the Lanham Act. The trial court denied the owner’s claim, in a ruling that provides some useful lessons to anyone who licenses a trademark. (Thousand Island Park Corp. v. Welser, 5:18-CV-117 (N.D.N.Y. June 14, 2018 (2018 WL 29803231)).)The case

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Competitive Keyword Advertising Doesn’t Show Bad Intent–ONEpul v. BagSpot

30 04 2018

Technology and Marketing Law Blog

Eric Goldman

April 28, 2018

This case involves dispensers of plastic bags for picking up dogshit. The plaintiff has a registered trademark in the brand “ONEpul.” The defendant describes its bags as “one-pull” (and yet, the term “descriptive fair use” doesn’t appear in the opinion once…). It also buys Adwords on another trademark of the plaintiff, “zerowaste,” but the appellate court doesn’t discuss a trademark infringement claim over the zerowaste mark. My prior blog post on the district court ruling.

The court analyzes the ONEpul trademark claim.

The court concludes: “Taken as a whole, the evidence that ZW submitted at summary judgment showed only that ZW and PWD were in competition with one another.” Summary judgment affirmed.

Case citation: ZW USA, Inc. v. PWD Systems, LLC, 2018 WL 1956417 (8th Cir. April 26, 2018)

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PUBG creators finally decide a copycat game has gone too far, file suit

10 04 2018

Ars Technica

– 4/5/2018

As expected, the massively popular online shooter Playerunknown’s Battlegrounds (PUBG) has been followed by a wave of imitators, particularly on smartphones. But it has been unclear if or when the game’s creators would ever consider legal action against any of these copycats. In particular, a brief chest-puffing incident involving the similar, and hugely popular, Fortnite Battle Royale came and went last year without incident.

That changed on Monday with a suit filed against NetEase, a Chinese game publisher with two very PUBG-like games on smartphones. The suit, filed in Northern California’s US District Court by PUBG Corp (a wholly owned subsidiary of Korean game publisher Bluehole), alleges both copyright and trademark violations by NetEase’s mobile-only games Rules of Survival and Knives Out.

Much like PUBG, NetEase’s games offer 100-person online battles on an island that players parachute onto. The battles revolve around a constantly shrinking “safe zone,” a specific set of military-grade weapons and armor, and a variety of island-crossing vehicles. What’s more, NetEase’s games beat PUBG to iOS, which invited a substantial number of “PUBG on phone” comparisons before the official version finally hit mobile devices.

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Intellectual Property in the World of eSports

4 04 2018

IP Watchdog

Roman Brtka
April 2, 2018

eSports is an exciting new area — not only in the sporting industry but in legal terms. There are various key players such as eGamers, game publishers, and organizers of eSports events, who are facing the challenge of sufficiently protecting their rights. Organizers need to ensure that they obtain all necessary usage rights from the game publishers and the participating eGamers, and these parties need to be aware of their possible ancillary copyrights and should take appropriate precautionary measures to protect them.

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2H 2017 & Q1 2018 Quick Links, Part 1: Copyright, Trademarks, Keyword Ads

4 04 2018

Copyright

* The Executive Corp. v. Oisoon, LLC, 2017 WL 4310113 (M.D. Tenn. Sept. 28, 2017). A default judgment:

* The Leader’s Institute v. Jackson, 3:14-CV-3572-B  (N.D. Tex. Nov. 22, 2017): “

* Julia Reda:

* Chicago Tribune: Halloween is here with a copyright lawsuit over banana costumes

* Law 360: Cheerleader Uniform IP Case Ends With Unusual Settlement

* Quartz: With no more income from album sales, a 69-year-old rock legend has to go back on tour

* Billboard: Inside the Secretive, Difficult Struggle Between Artists & Labels Over Album Copyrights

* Recode: “Inside Oracle’s cloak-and-dagger political war with Google”

* Techdirt: ‘Six Strikes’ May Be Dead, But ISPs Keep Threatening To Disconnect Accused Pirates Anyway

* NY Times: HuffPost, Breaking From Its Roots, Ends Unpaid Contributions

* Artsy: Copying Other People’s Art Can Boost Creativity, Study Finds

* Washington Post: Meet the sometime-streamer: TV watchers who sign up for one show — then cancel

* WSJ: Millennials Unearth an Amazing Hack to Get Free TV: the Antenna

Trademark and Publicity Rights

* Fischer v. Forrest, 2018 WL 948758 (SDNY Feb. 16, 2018):

* Blue Water International, Inc. v. Hattrick’s Irish Sports Pub LLC, 2017 WL 4182405 (M.D. Fla. Sept. 21, 2017)

* Slate: Let’s Uber. I’ll Call a Lyft. Why conscientious consumers no longer want to use Uber, except as a verb.

* The Economist: A firm that shares a name with its founder earns higher profits.

* NY Times: Who Is Really Making ‘Chihuly Art’? Bonus: photos from my visit to the Chihuly Museum in Seattle.

* Roe v. Amazon. Sixth Circuit upholds dismissal of Gronking to Remember book cover photograph case. Prior blog post.

Keyword Ads

* Altinex Inc. v. Alibaba.com Hong Kong Ltd:

* Wendy Davis: “Contact Lens Seller Agrees To $7 Million Settlement Over Search Ads”

* SearchInsider: Most Expensive Keywords In The U.S.

* Search Engine Land: Google drops support for meta news keywords tag

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Nine Lives Indeed: Grumpy Cat Wins IP Lawsuit Against Beverage Company

27 03 2018

Adlaw by Request

Andrew Levad and Jason Gordon on 26 March 2018

… “Grumpy Cat,” real name Tardar Sauce, …. owners Tabatha and Bryan Bundesen founded Grumpy Cat Ltd., which owns various IP rights associated with the Grumpy Cat brand.

In late 2015, Grumpy Cat Ltd. filed suit against beverage company Grenade Beverages LLC and its owners Paul and Nick Sandford for trademark and copyright infringement. Grumpy Cat Ltd. entered into a license agreement with Grenade in 2013 allowing the company to market a line of iced coffee beverages, which was later allegedly breached when Grenade began marketing additional products featuring Grumpy Cat’s brand.  Two years of litigation later, in January 2018,

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