Oddbean new post about login | logout @e7f76f0d These flags look pretty similar to my (admittedly untrained) eye. I saw reference to copyright in there - for the benefit of us non-IP types, I have perhaps a dumb question - does the absence of counterfeiting mean no cause of action at all, or just no trademark claim, but there is still the possibility of a copyright action (which my instinct tells me would be tougher)?
@abb65a6d I haven't pulled up the TRO briefing yet but, based on what the court says, the plaintiff asked the court for this extraordinary form of relief based on trademark infringement, not copyright infringement. So the issue here isn't whether the plaintiff could prevail on a properly-brought copyright claim; it's whether they sought and obtained the TRO improperly.
@abb65a6d On the issue of counterfeiting, specifically, I think it matters a lot when plaintiffs mischaracterize their claims as "counterfeiting" claims because of the strong rhetorical power in that word: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909
@e7f76f0d That's quite an article - I only just skimmed the highlights, but it sounds like you're not a fan of the overuse of "counterfeiting" to obtain extraordinary relief for garden variety infringement claims. And from the definition you provide of design patent infringement, it seems questionable that flags look the same. I wonder if they'd have any easier time with copyright?
@abb65a6d That's a pretty good summary of my article! And as for this case, the complaint doesn't allege patent infringement but if they claimed the whole design of the flag then you'd be right: Not close enough to infringe. As to copyright, the complaint avers that the plaintiff has "copyrighted images and photographs" but doesn't actually allege copyright infringement, perhaps because there is also no mention of any copyright registration or rejected registration application (prereqs to suit)
@abb65a6d my understanding is that the plaintiffs got the court to take action ex parte making use of tools only available under trademark. So whether or not they have a copyright claim, they abused the court by asking for extraordinary action that is only available for claims they don't actually have, nor it would appear did they have a good faith basis to believe they had them. @e7f76f0d
@c01c90f2 @abb65a6d Yeah, so judges are actually granting this type of extraordinary relief in other types of IP cases, not just TM cases. But in this case, the TRO was based on TM allegations and it looks like many of those TM claims were frivolous. And even though the complaint mentions "copyright" I would.....not assume there's a colorable claim here. We don't know what rights the plaintiff purports to have, etc.