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General IP News

  • Northern District of Illinois Sets Highly Sensitive Document Rules
    In response to recent questions about a potential breach of the CM/ECF system, the Northern District issued a General Order setting out a definition of Highly Sensitive Documents (HSD). The General Order states that “[m]ost sealed filings in civil cases do not constitute HSDs” and specifically excludes “[c]ommercial [and] proprietary ... Read More
    Source: CHICAGO IP LitigationPublished on 2021-01-27By R. David Donoghue
  • Phase 1 and CAI: A Tale of Two Agreements
    CAI, RCEP and the Phase 1 Trade Agreement all responded to different economic, trade demands and political urgencies. The CAI has been understood as a sign by the Biden administration that the European Union will pursue its own trade relationship with China based on its own interests. While the IP ... Read More
    Source: China IPRPublished on 2021-01-27By Mark Cohen (柯恒)
  • surveys/expert evidence of deception still not required in consumer protection claims
    Hawkins v. Kroger Co., 2021 WL 210843, No. 15cv2320 JM (AHG) (S.D. Cal. Jan. 11, 2021) Hawkins sued, with the usual California claims, because Kroger breadcrumbs said “0g Trans Fat Per Serving”  on the front and the nutrition label said “Trans Fat 0g”; the breadcrumbs included partially hydrogenated vegetable oil ... Read More
    Source: TushnetPublished on 2021-01-25By Rebecca Tushnet
  • when is a publisher sufficiently beholden to a manufacturer to engage in commercial speech?
    Ariix, LLC v. NutriSearch Corp., No. 19-55343 (9th Cir. Jan. 22, 2021) Over a dissent, the court reverses the district court’s dismissal of a false advertising claim against a purportedly independent supplement guide that allegedly is linked, behind the scenes, with one producer, motivating its praise of that producer and ... Read More
    Source: TushnetPublished on 2021-01-25By Rebecca Tushnet
  • Welcome to the Bumpy Ride of Jobs vs. IP?
    Several press outlets are running articles about how the Biden team’s trade posture will  “involve a laser focus on what improves wages and creates high-paying jobs in the United States, rather than making the world safe for corporate investment,”  (See https://www.wsj.com/articles/biden-team-promises-new-look-in-trade-policy-11611484201.) Some articles are also quoting Lawrence Summers – apparently from 2015 ... Read More
    Source: China IPRPublished on 2021-01-25By Mark Cohen (柯恒)
  • Happy inauguration day to Redbubble in particular: 9th Cir. affirms functionality in Lettuce Turnip the Beet
    LLTB LLC v. Redbubble, Inc., No. 19-16464 (9th Cir. Jan. 20, 2021) LTTB LLC sells t-shirts and other goods bearing its registered trademarks, the words and design, “LETTUCE TURNIP THE BEET.”  LTTB sued Redbubble for infringing by selling products containing the same words and design. The district court granted summary ... Read More
    Source: TushnetPublished on 2021-01-21By Rebecca Tushnet
  • Dastardly DoorDash fails to get restaurant complaint dismissed, including under UCL/FAL
    Lona’s Lil Eats, LLC v. DoorDash, Inc., No. 20-cv-06703-TSH, 2021 WL 151978 (N.D. Cal. Jan. 18, 2021) (magistrate) This case addresses a topic that’s received broader media coverage than most advertising issues. The magistrate finds that Lona’s sufficiently alleged false advertising by DoorDash about its availability, diverting potential consumers from ... Read More
    Source: TushnetPublished on 2021-01-20By Rebecca Tushnet
  • New Proposals on Science and IP Cooperation with China
    I previously blogged about several China-oriented proposals released after the November elections here. Three additional proposals have recently been released that involve how the USG engages China on IP and innovation issues. 1.The Day One Project has released a Transition Document for the US Patent and Trademark Office [USPTO].   There are ... Read More
    Source: China IPRPublished on 2021-01-19By Mark Cohen (柯恒)
  • WVa SCt immunizes religious schools and camps for false advertising about services
    State ex rel. Morrisey v. Diocese of Wheeling-Charleston, 851 S.E.2d 755 (W.Va. 2020) In response to a certified question, the West Virginia Supreme Court, over a dissent, held that the AG could not sue the Diocese and a former bishop for violating the deceptive practices provisions of the West Virginia ... Read More
    Source: TushnetPublished on 2021-01-19By Rebecca Tushnet
  • Unwired Planet and the Role of Chinese Courts: A Perspective from Shenzhen
    This is the second article on recent research on Chinese IP law and practice.  The focus of this blog is  a widely read article of Judge Zhu Jianjun, Shenzhen Intermediate Court, Intellectual Property Tribunal.  His article “Research on Judicial Judgment Issues of SEP Global Royalty Rates” was published in  Intellectual ... Read More
    Source: China IPRPublished on 2021-01-19By Mark Cohen (柯恒)
  • IPO’s Comments on Draft Amendments to Patent Law Implementing Regulations
    On January 14, 2021, IPO submitted comments to the China National Intellectual Property Administration on its Draft Amendments to the Implementing Regulations of the Patent Law. IPO’s comments included suggestions regarding: foreign filing licenses; mandatory patent contract recordals; industrial designs;  “good faith” patent prosecution obligations; inventor remuneration; pharmaceutical issues; and other areas.  Here ... Read More
    Source: China IPRPublished on 2021-01-17By Mark Cohen (柯恒)
  • Rogers v. Grimaldi and the TMA
    The legislative history of the TMA, just enacted into law, includes several paragraphs blessing Rogers v. Grimaldi and saying it's what Congress understands the Lanham Act to mean. I'd be interested to know how that got in there, and I wonder if there are any judges left who care.H.R. Rep. No. ... Read More
    Source: TushnetPublished on 2021-01-15By Rebecca Tushnet
  • Recent Research of USPTO
    This is the first in a series of blogs on recent research. The USPTO just released its report on Trademarks and Patents in China, The Impact of Non-Market Factors on Filing Trends and IP Systems (the “Report”).  The Report focuses on non-market factors in filing trends in trademarks, with an ... Read More
    Source: China IPRPublished on 2021-01-14By Mark Cohen (柯恒)
  • American Merck and German Merck’s TM battle doesn’t involve covered “advertising injury”
    EMD Millipore Corp. v. HDI-Gerling Am. Ins. Co., 2021 WL 66441, No. 20-cv-10244-ADB (D. Mass. Jan. 7, 2021) Is trademark infringement (or similar) “advertising injury” because a trademark is an advertising idea? I’ve always thought that’s the core of what a trademark is, which makes many insurance policies seem conflicting ... Read More
    Source: TushnetPublished on 2021-01-13By Rebecca Tushnet
  • literal falsity as Q of fact v. law and other important issues in a dueling ladder case
    Wing Enters., Inc. v. Tricam Indus., Inc., No. 17-cv-1769 (ECT/ECW), 2021 WL 63108 (D. Minn. Jan. 7, 2021) After remand because the court of appeals concluded that a materiality survey was wrongly excluded, the court here tries again in this false advertising case between competing sellers of articulated ladders, also ... Read More
    Source: TushnetPublished on 2021-01-13By Rebecca Tushnet
  • MofCOM’s New Blocking Rule: A Dangerous Weapon or a Necessary Remedy?
    On January 9, 2021, MofCOM released the Measures to Block the Improper Extraterritorial Application of Foreign Laws and Measures, (Docket Number 1)(中华人民共和国商务部令 二〇二一年 第1号)(the “Rule”).  The Rule was promulgated with “approval from the State Council.”  The Rule may be used to support litigation in Chinese courts against foreign extraterritorial measures, ... Read More
    Source: China IPRPublished on 2021-01-10By Mark Cohen (柯恒)
  • Berkeley-Tsinghua Transnational IP Litigation Program Launches Soon
    Berkeley and Tsinghua Law will co-host their third annual program on transnational IP litigation, focusing on the impact of the trade war on settlement of IP disputes. ... Read More
    Source: China IPRPublished on 2021-01-08By Mark Cohen (柯恒)
  • Civil Procedure Flow Chart Available
    I have posted a draft Chinese civil procedure flow chart that highlights unique aspects of China's Civil Procedure Law. Please feel free to comment. ... Read More
    Source: China IPRPublished on 2021-01-05By Mark Cohen (柯恒)
  • Due Process and ASI’s: Wuhan and Texas
    Attached is the December 25 decision of the Wuhan Intermediate Court (Chinese language only) (the “Decision”) in the matter of Samsung v. Ericsson, about which I previously blogged.   The Fosspatents blog has also posted some of the other recent filings in the E.D. of Texas, including former Chief Judge Rader’s ... Read More
    Source: China IPRPublished on 2021-01-05By Mark Cohen (柯恒)
  • The New Civil Code and the Metal Ox
    China's new Civil Code came into effect January 1, 2021. Here are some IP resources and a link to a translation. ... Read More
    Source: China IPRPublished on 2021-01-04By Mark Cohen (柯恒)
  • Nominative fair use in the Seventh Circuit: a practical tool
    Data Mgmt. Ass’n Int’l v. Enterprise Warehousing Solutions, Inc., 2020 WL 7698368, No. 20 C 04711 (N.D. Ill Dec. 28, 2020)Without resolving burden of proof issues, the court uses nominative fair use to quickly resolve a case where fair competition requires some use of the mark, but not as much ... Read More
    Source: TushnetPublished on 2021-01-01By Rebecca Tushnet
  • How long does a U.S. patent or trademark application take to grant? (2020 edition)
    The USPTO recently released its FY2020 Performance and Accountability Report, with contains helpful information about allowance rates, average pendency, and other statistics about its review of patent and trademark applications this year. Each year, IP Spotlight ... Read More
    Source: IP SpotlightPublished on 2021-01-01By Jim Singer
  • product changes as false advertising: TM may serve as express warranty of formulation & quality
    Starr v. VSL Pharmaceuticals, Inc., No. TDC-19-2173, 2020 WL 7694480 (D. Md. Dec. 28, 2020) This putative class action is related to the longstanding trademark/false advertising litigation between the VSL parties and Claudio De Simone parties, and probably qualifies as a follow-on class action. Plaintiffs alleged violation of RICO, breach ... Read More
    Source: TushnetPublished on 2020-12-31By Rebecca Tushnet
  • business can assert California consumer protection claims against platform
    Gaby’s Bags, LLC v. Mercari, Inc., No. C 20-00734 WHA, 2020 WL 7664455 (N.D. Cal. Dec. 25, 2020) After the court dismissed plaintiff’s Lanham Act false advertising claims against a platform because the plaintiff was a customer and not a competitor, the plaintiff sought to amend to assert California consumer ... Read More
    Source: TushnetPublished on 2020-12-31By Rebecca Tushnet
  • no Lanham Act claims, including false advertising, allowed over cannabis
    Shulman v. Kaplan, 2020 WL 7094063, No. 2:19-CV-05413-AB (FFMx) (C.D. Cal. Oct. 29, 2020) The parties compete in the cannabis market, and some defendants formerly worked with Shulman, but that relationship broke down. Shulman sued, alleging four federal claims and 21 state law business and/or contract-related claims. RICO claims failed ... Read More
    Source: TushnetPublished on 2020-12-31By Rebecca Tushnet
  • Test yourself: would you have approved this “covid-free” claim?
     From the NYT this weekend (h/t Zachary Schrag):"It's time to put COVID on hold ... and set out for the ultimate escape to the world's only 6-star hotel, Quintessence Hotel. The sixth star is for our (and Anguilla's) diligence in creating a COVID-free environment.... If you long for the tranquility ... Read More
    Source: TushnetPublished on 2020-12-30By Rebecca Tushnet
  • Wuhan and Anti-Suit Injunctions
    Wuhan, China is currently a destination jurisdiction for anti-suit injunctions (ASI) and anti-anti-suit injunctions (AASI).  Although the first AASI was issued in a Wuhan maritime case in July 2017, the IP judiciary started to more seriously consider ASI’s. The ramp-up occurred around the time of a conference that I attended ... Read More
    Source: China IPRPublished on 2020-12-29By Mark Cohen (柯恒)
  • China’s Holiday Gift For Foreign Patent Agents and Agencies
    In furtherance of the August 20  Notice of the Ministry of Commerce on “Issuing the Overall Plan for Comprehensively Deepening the Innovation and Development of Service Trade” (商务部关于印发全面深化服务贸易创新发展试点总体方案的通知) (商服贸发)〔2020〕(165号), CNIPA issued two notices on December 25, 2020 further liberalizing its IP services market: one notice concerns the eligibility of foreign ... Read More
    Source: China IPRPublished on 2020-12-28By Mark Cohen (柯恒)
  • Another pandemic education case: false advertising fails, contract claim survives
    Bergeron v. Rochester Inst. of Technology, No. 20-CV-6283 (CJS), 2020 WL 7486682 (W.D.N.Y. Dec. 18, 2020) Different district, same result as this case involving Rensselaer Polytechnic. Contract/unjust enrichment claims survive based on allegations that RIT promised in-person learning, but conversion and false advertising claims go. Also: Parents of adult students ... Read More
    Source: TushnetPublished on 2020-12-22By Rebecca Tushnet
  • reasonable consumer wouldn’t expect advertised in-person classes in pandemic (but contract claims survive)
    Ford v. Rensselaer Polytechnic Institute, No. 20-CV-470, 2020 WL 7389155 (N.D.N.Y. Dec. 16, 2020) This is a putative class action against RPI for breach of contract, false advertising, and related claims based on the mid-semester pandemic shutdown of early 2020. The court dismisses false advertising and conversion claims but declines ... Read More
    Source: TushnetPublished on 2020-12-19By Rebecca Tushnet