ST. LOUIS — In an Aug. 9 holding, the Eighth Circuit U.S. Court of Appeals affirmed dismissal on copyright preemption grounds of trade dress and tortious interference claims levied in a dispute over a light installation, but found that a proposed, amended trademark infringement claim should be allowed to proceed (Bruce Munro, et al. v. Lucy Activewear Inc., et al., No. 16-4483, 8th Cir.).
ATLANTA — In an Aug. 7 holding, the 11th Circuit U.S. Court of Appeals found that although a Florida federal judge erred in requiring a threshold showing of inferior product quality to establish post-sale consumer confusion, the record in a dispute over competing boat designs is nonetheless “devoid of evidence indicating a probability of post-sale confusion,” rendering summary judgment proper (Yellowfin Yachts Inc. v. Barker Boatworks, LLC, et al., No. 17-11176, 11th Cir., 2018 U.S. App. LEXIS 21918).
SEATTLE — Amazon.com Inc.’s use of a New Jersey artificial turf maker’s trademark in search engine keyword advertising did not violate the Lanham Act, a Ninth Circuit U.S. Court of Appeals panel ruled Aug. 6, finding that the online retailer made no misrepresentations about any products’ source or quality (Steven Lasoff v. Amazon.com Inc., No. 17-35173, 9th Cir., 2018 U.S. App. LEXIS 21720).
SACRAMENTO, Calif. — After finding that a restaurant owner is not asserting a federal trademark infringement claim, a California federal judge on Aug. 2 remanded its claims for violation of California’s unfair competition law (UCL) and common-law trademark infringement to state court (Early Morning Inc. v. Eliud Moreno, et al., No. 2:18-cv-00483, E.D. Calif., 2018 U.S. Dist. LEXIS 130116).
ATLANTA — A Florida federal judge did not err in finding that use by a declaratory judgment defendant of the “Casas Bahia” trademark in commerce was sufficient to establish ownership rights, the 11th Circuit U.S. Court of Appeals ruled Aug. 3 (Direct Niche LLC v. Via Varejo S/A, No. 17-13937, 11th Cir., 2018 U.S. App. LEXIS 21584).
NEW YORK — In an Aug. 2 ruling, the Second Circuit U.S. Court of Appeals found that “under certain conditions,” claim preclusion may bar defendants from invoking defenses that could have been raised in an earlier action (Marcel Fashions Group Inc. v. Lucky Brand Dungarees Inc., et al., No. 17-0361, 2nd Cir., 2018 U.S. App. LEXIS 21482).
WASHINGTON, D.C. — In a July 24 reply brief supporting its petition for certiorari, a fan clothing maker asks the U.S. Supreme Court to decide whether a college’s registered service mark allows it to preclude use of that mark for goods unrelated to its registered categories (Sportswear Inc. v. Savannah College of Art and Design, No. 17-1316, U.S. Sup.).
SAN DIEGO — A plaintiff sufficiently pleaded commercial use of its “Biotine” trademarks when it alleged that a defendant’s website’s auto-populated dropdown list causes the “Biotine” trademarks to appear, a California federal judge ruled July 31 (Natural Thoughts Inc. v. Performance Touch LLC, et al., No. 17-2148, S.D. Calif., 2018 U.S. Dist. LEXIS 127255).
SAN FRANCISCO — A California federal judge’s grant of summary judgment in favor of two defendants accused of infringing “Honey Badger” catchphrases coined by a YouTube star was reversed July 30 by the Ninth Circuit U.S. Court of Appeals, who found that jurors could conclude that the goodwill associated with the marks was appropriated in a series of greeting cards (Christopher Gordon v. Drape Creative Inc., et al., No. 16-56715, 9th Cir., 2018 U.S. App. LEXIS 20986).
NEW YORK — In a July 27 holding, the Second Circuit U.S. Court of Appeals vacated and remanded a grant of summary judgment in favor of a trademark infringement plaintiff, upon finding that a New York federal judge’s determination of priority of use of the “Rogue” trademark was erroneous (Excelled Sheepskin & Leather Coat Corporation v. Oregon Brewing Company, No. 16-3602, 2nd Cir., 2018 U.S. App. LEXIS 20940).
CINCINNATI — In a July 24 holding, the Sixth Circuit U.S. Court of Appeals found that an Ohio federal judge properly rejected allegations that use of “Artistry Diamond Collection” by a jewelry retailer would infringe upon a jewelry wholesaler’s “Artistry” unregistered trademark (Sterling Jewelers Inc. v. Artistry Ltd., No. 17-4132, 6th Cir., 2018 U.S. App. LEXIS 20534).
NEW YORK — Although finding that the heirs of photographer Bert Stern are the rightful owners of images taken of Marilyn Monroe shortly before her death, a New York federal judge on June 20 found that genuine disputes of material fact preclude summary judgment in favor of the heirs on their allegations of copyright infringement and false and misleading representations (Shannah Laumeister Stern, et al. v. Lisa Lavender, et al., No. 16-9886, S.D. N.Y., 2018 U.S. Dist. LEXIS 121405).
WASHINGTON. D.C. — Arguing that the Ninth Circuit U.S. Court of Appeals has improperly elevated an expressive works exception over the traditional likelihood-of-confusion standard in trademark law, a record label in a July 24 reply brief supporting its petition for certiorari asks the U.S. Supreme Court to resolve a purported circuit split on the matter in a case centering on the television show “Empire” (Empire Distribution Inc. v. Twentieth Century Fox Television, et al., No. 17-1383, U.S. Sup.).
SAN FRANCISCO — In a July 24 holding, the Ninth Circuit U.S. Court of Appeals found no error in a Washington federal judge’s post-trial judgment that a defendant is liable for reverse passing off under the Lanham Act because he passed off genuine industrial tiles made by a competitor as his own (OTR Wheel Engineering Inc. v. West Worldwide Services Inc., et al., Nos. 16-35897, -35936, 9th Cir., 2018 U.S. App. LEXIS 20520).
SAN FRANCISCO — A California federal judge did not err in reconsidering an earlier summary judgment holding upon finding that a trademark infringement plaintiff sought and won damages for trademarks that were not yet registered at the time they were counterfeited, the Ninth Circuit U.S. Court of Appeals ruled July 24 (Kaloud Inc. v. Shisha Land Wholesale Inc., Nos. 16-56138, -56401, -56500, 9th Cir., 2018 U.S. App. LEXIS 20603).
NEW ORLEANS — In a July 18 holding, a per curiam Fifth Circuit U.S. Court of Appeals panel refused to undo a Texas federal jury’s determination that a trademark infringement plaintiff failed to rebut a presumption of intent not to resume use of the “Cowboy Little Barrel” (CLB) trademark after years of nonuse (Allied Lomar Inc. v. Lone Star Distillery LLC, et al., No. 17-50148, 5th Cir., 2018 U.S. App. LEXIS 19865).
WASHINGTON, D.C. — Although avoiding the “far thornier question” of whether written standards for commercial and industrial endeavors retain intellectual property protection after they are incorporated by reference into law, the District of Columbia Circuit U.S. Court of Appeals on July 17 reversed and remanded a grant of summary judgment in favor of several private organizations that allege that their standards were infringed (American Society for Testing and Materials, et al. v. Public.Resource.org Inc., No. 17-7035, D.C. Cir., 2018 U.S. App. LEXIS 19603).
WASHINGTON, D.C. — Upon de novo review, the District of Columbia U.S. Circuit Court of Appeals on July 17 upheld a District of Columbia federal judge’s determination that isolated internet-based contacts with the United States are insufficient grounds to support specific personal jurisdiction in a dispute over streamed movies (Triple Up Ltd. v. Youku Tudou Inc., No. 17-7033, D.C. Cir., 2018 U.S. App. LEXIS 19699).
CINCINNATI — In a June 13 reply brief, the operator of a Nashville, Tenn., restaurant asks the Sixth Circuit U.S. Court of Appeals to reverse a trial court’s finding that it did not have standing to seek cancellation of a rival restaurant’s “Whiskey Row” trademark, asserting that it established a likelihood of confusion (The Row Inc. v. Rooke LLC, No. 18-5068, 6th Cir.).
DENVER — A stipulated dismissal with prejudice of allegations of trade dress infringement did not render a defendant the prevailing party for purposes of awarding attorney fees, the 10th Circuit U.S. Court of Appeals ruled June 26 (XClear Inc. v. Focus Nutrition LLC, No. 17-4126, 10th Cir., 2018 U.S. App. LEXIS 17363).