Nintendo Files Copyright, Trademark Infringement Suit Against Operator of ROM Websites

21 08 2018

IP WatchDog

Steve Brachmann
August 17, 2018

Nintendo’s complaint targets the operator of LoveROMS.com and LoveRETRO.co who has made thousands of Nintendo titles available online for free from platforms including the Game Boy, the original Nintendo Entertainment System, Super NES, Nintendo 64 and Nintendo DS, among others. Nintendo alleges that just the top 10 games on the LoveROMs site in which Nintendo is a copyright claimant and trademark owner have been downloaded more than 60 million times. Further, the LoveROMs website allegedly receives more than 17 million visits each month.

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Negative Keywords Help Defeat Preliminary Injunction–DealDash v. ContextLogic

17 08 2018

Technology & Marketing Law Blog

Eric Goldman

August 14, 2018

DealDash and Wish are e-commerce vendors. For a while, Wish offered a service called “Deal Dash” for time-limited bargains. Immediately after DealDash sued, Wish renamed its service “Bargain Blitz” and pulled the “DealDash” term from all advertising. DealDash still pressed for a preliminary injunction that restricted, among other things, using “DealDash” as keyword ad triggers in search engines and app stores.

Wish submitted an affidavit that it had blocked “DealDash” or “Deal Dash” as negative keywords in AdWords. The court responds:

 

Case citation: DealDash OYJ v. ContextLogic, Inc., 2018 WL 3820654 (N.D. Cal. Aug. 10, 2018)

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/08/negative-keywords-help-defeat-preliminary-injunction-dealdash-v-contextlogic.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

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Google’s servers housed by a third-party ISP qualify as a regular and established place of business to establish proper venue in the Eastern District of Texas

17 08 2018
Lex Blog
AUGUST 15, 2018
In our continued post-TC Heartland coverage, Judge Gilstrap in the Eastern District of Texas recently held that venue was proper because Google exercises exclusive control over physical servers implicated by the litigation, as well as the physical space within which the server is located and maintained. The court emphasized that the place where the server is located occupies a physical space, which is more than merely a virtual space or electronic communications from one person…

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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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https://arstechnica.com/gaming/2018/04/pubg-creators-finally-decide-a-copycat-game-has-gone-too-far-file-suit/

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