Happy weekend, friends! What are we reading, watching, listening to, or playing for fun (or distraction)?


D159,342 - issued to Jo Emmett Jennings in 1950 for a design for a "vacuum condenser." #DesignPatents #InReJennings

https://files.mastodon.social/media_attachments/files/112/497/307/095/151/715/original/03ff475705be21fd.jpg


Too many things going on this week. Can all you courts just, like, slow down a bit?


And the underlying decision (by Judge Seeger): https://storage.courtlistener.com/recap/gov.uscourts.ilnd.422932/gov.uscourts.ilnd.422932.51.0.pdf

"The Court declines the request to award profits because Plaintiff offered evidence of revenue, not profits. Revenue and profits are not the same thing. The Court declines the invitation to assume that all of the revenue equals profits."

#ScheduleA


And the underlying decision (by Judge Seeger): https://storage.courtlistener.com/recap/gov.uscourts.ilnd.422932/gov.uscourts.ilnd.422932.51.0.pdf


Anyway, the oral argument recording is here: https://media.ca7.uscourts.gov/sound/external/ef.23-2948.23-2948_05_23_2024.mp3 #DysonVersusDavid7Store


Judge below was Seeger:

https://files.mastodon.social/media_attachments/files/112/496/710/753/805/543/original/31732f512f1f7451.jpg


I'm not saying that's a good argument. Only that it's strongest in Lanham Act cases.


Oh, this is potentially big. Dyson denied profits in a trademark #ScheduleA case. At oral argument, two judges "pushed back on the notion that [Dyson] was at all entitled to a profits award in the case."

https://www.law360.com/ip/articles/1840545?nl_pk=2e71aa9c-c8f8-43ff-9d5a-fafec61b2085

Of course, oral arguments can mislead as to the way a case will ultimately go.

But if the panel goes against Dyson/GBC, that would be a big deal.


11) Overall: Don't hate it.


Frankly, this passage seems like a tacit admission of what I've argued for over a decade: It's the Federal Circuit's *application of* Rosen that's the problem, not Rosen itself.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1926162


For those who don't know: The Federal Circuit has had exclusive jurisdiction over patent appeals since 1982. SCOTUS has not weighed in on this issue.


For those who don't know: The Federal Circuit has had exclusive jurisdiction over patent appeals since 1982. SCOTUS has not weighed in.


Background: The Federal Circuit's predecessor court, the CCPA, created the Rosen reference and "so related" requirements.

So the Federal Circuit is basically:

https://files.mastodon.social/media_attachments/files/112/496/330/344/684/224/original/478b5d285f2d1468.png


Thinking about the use of the passive voice in this passage from #LKQvGM:

https://files.mastodon.social/media_attachments/files/112/496/321/085/552/960/original/750bebe8cc4cd887.jpg


11) The passive voice here:

https://files.mastodon.social/media_attachments/files/112/496/315/485/910/915/original/2b7d5d2da9fa85d4.jpg

https://files.mastodon.social/media_attachments/files/112/496/315/995/360/924/original/b6729e344afbc1e1.jpg


LKQ is actually a good example to use on the question of "how close is too close?" If these references aren't enough to anticipate, that chair is definitely not close enough to infringe. http://cafc.uscourts.gov/opinions-orders/21-2348.OPINION.5-21-2024_2321050.pdf

#DesignPatents

https://files.mastodon.social/media_attachments/files/112/495/918/933/102/503/original/333737414fe51396.jpg


Nope, no infringement. Homy Casa Limited v. Jili Creation Technology Co., Ltd., 2:24-cv-00763, (W.D. Pa. May 23, 2024).

#DesignPatents

https://files.mastodon.social/media_attachments/files/112/495/888/831/838/781/original/42d02e14b2285610.jpg


Nope, no infringement. Comparison pics from Homy Casa Limited v. Jili Creation Technology Co., Ltd., 2:24-cv-00763, (W.D. Pa. May 23, 2024).

#DesignPatents

https://files.mastodon.social/media_attachments/files/112/495/888/831/838/781/original/42d02e14b2285610.jpg


Phrase of the week: "That's not my problem anymore."


I loved this paper by Jordana Goodman & Khamal Patterson. Check it out! https://ip.jotwell.com/the-white-person-of-skill-in-the-art/


It's hard not to notice all the lasts. But I want to focus on the firsts to come.


nostr:npub1nxxg5vlw8utexkga2fshg5n3t749srlc3u7am34gqfuetw27l9hs6mwsjl Okay, so I pulled up the submitted drawing and, wow, literally just the outlines. #SubFeistDesigns


D89,552 - issued in 1933 or a design for a "pin-ball amusement game device." #DesignPatents

https://files.mastodon.social/media_attachments/files/112/082/632/436/060/498/original/45eb7bdb1500e7f4.jpg


D89,552 - issued in 1993 or a design for a "pin-ball amusement game device." #DesignPatents

https://files.mastodon.social/media_attachments/files/112/082/632/436/060/498/original/45eb7bdb1500e7f4.jpg


Happy weekend, friends! What are we reading, listening to, or reading for fun (or distraction)?


D262,037 - issued to Paramount Pictures in 1981 for a design for a "calligraphic font." #DesignPatents

https://files.mastodon.social/media_attachments/files/111/704/614/555/262/250/original/aa5d9348dfd96749.jpg


D254,607 - issued in 1980 for a design for a "birthday flag or banner." #DesignPatents

https://files.mastodon.social/media_attachments/files/111/602/274/751/971/225/original/2945e64aa2418d82.jpg


Obviously, design patents are neither the biggest nor the most important thing going on right now. But in dark times, I will celebrate the light.


All office phones should have a button that allows you to turn off the voicemail light without actually logging in and deleting the voicemails.

This post brought to you by the Post-It that lives over my voicemail button.


Issued this week—D1,002,998, for a design for a “shark costume.” #DesignPatents #NewDesignPatents

https://files.mastodon.social/media_attachments/files/111/348/291/574/277/784/original/38343e3fb6dfc117.jpg


Anyway, these Dothraki-style allegations about Amazon IP enforcement ("it is known") are interesting:

https://files.mastodon.social/media_attachments/files/111/301/614/996/626/179/original/0b90d73797ab3c59.jpg


One interesting thing: In a letter attached to the complaint, the plaintiff makes a case for noninfringement: https://www.scribd.com/document/680264854/Excelencia-v-Leng-Letter

But they don't seek a declaratory judgment of noninfringement in the complaint.

https://files.mastodon.social/media_attachments/files/111/301/612/490/601/857/original/2fd0ac1b3a1e15ec.jpg


Can anyone point me to a good, short explainer on how to write a law review abstract? Thanks in advance!

#LawProfs #LawFedi #LegalScholarship


Issued this week—D1,001,488, for a design for a “sandal handle.” #DesignPatents #NewDesignPatents

https://files.mastodon.social/media_attachments/files/111/274/284/117/851/890/original/c05b35162a5c4cf6.jpg


It's #Twiqbal day in Civ Pro! 🥳


This semester is kicking my ass, y'all.


This is not a harmless error.


nostr:npub1wvwzal8sdkmgpf3wd72q4xfvh59u9m6fk9ujdwwzn9j96j9n4qpqqx4puk True.


Happy I No Longer Have to Pretend to Care Day About Texas to me!

https://files.mastodon.social/media_attachments/files/111/194/618/999/029/837/original/b44886955a47166a.jpg


Happy I No Longer Have to Pretend to Care Day to me!

https://files.mastodon.social/media_attachments/files/111/194/618/999/029/837/original/b44886955a47166a.jpg


D82,291 - issued in 1930 for a design for a "breakfast room chair." #DesignPatents

https://files.mastodon.social/media_attachments/files/111/194/074/935/400/618/original/5f8eef845fc6baf5.jpg


This. This is why I stopped posting over there:

"People don’t come to Twitter for its far-right hate content. Nor do the advertisers come to market to them....The fact of the matter is, people come to Twitter for news, culture, discussions. By staying, you don’t hold any ground, you maintain the viability of a platform hell-bent on promoting far-right ideology. So long as there’s content other than hate, people will have a reason to stay."

https://throwawayopinions.io/the-paradox-of-intolerance.html


nostr:npub1t5gkq629zym0lec7mwx923wvg2eu6jhvpjrndfy4vq5freqqezqq48n2s9 nostr:npub1uxz060za0sz7uzncy45jcksak2lr9wks0hrgug54cvpm9ma8agkqs35ma4 Aw, thanks!


nostr:npub14lu0675sjfsd00zp0jlg5cpcz2nz7zdglznq8caquyepuk6xw65sq3zywf Oui!


Between work and family obligations, I've been going hard for weeks now without a break.

So today, it's just me, my TV & Omar Sy.

https://files.mastodon.social/media_attachments/files/111/188/421/999/488/228/original/21e2070d348133d6.jpg


nostr:npub18mfjc5hqje6p9qczhj2suwzn57luhvnus80m53hflwacsmekwxgsgvgpc7 So happy you're here!


Please help me welcome my awesome #SuffolkLaw colleague nostr:npub18mfjc5hqje6p9qczhj2suwzn57luhvnus80m53hflwacsmekwxgsgvgpc7 to the fedi!

Sarah writes and teaches about #ProfessionalResponsibility, among other topics. You can check out her work here: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2742703

#LawFedi #LawProfs

https://files.mastodon.social/media_attachments/files/111/188/333/286/325/773/original/bca9de593ea42589.jpg


nostr:npub1f2cqt26jn8r9tjajr6v38k9pesavd3trcyx5xskke55py8um05hqqjyavf nostr:npub1ttq42glgk9e0jstsultyfnumyvll0fcq79sretex288fkyslpr4q77ctyh nostr:npub1cqwfpu4znm2al0jksr5ah40vqcmdgf9gsvjh269k3pfdjrlllkks2jqsc0 nostr:npub1sy9gn6ng3klmn4dhmyvuurtqtz9yccgrutmw0ucm0rvdhrdd6tjqhuvmwc And now nostr:npub18mfjc5hqje6p9qczhj2suwzn57luhvnus80m53hflwacsmekwxgsgvgpc7!!


D782,591 - issued in 2017 for a design for a "pool noodle." #DesignPatents

https://files.mastodon.social/media_attachments/files/111/183/714/934/490/185/original/29b908eb9ae65bda.jpg


nostr:npub178rvtslm3qykq8uy5afswta2qz5pk9atjxsepht4x8ldddssp6kq4sqekt Wait, what? Sorry. Glad you (and your photos) are here


nostr:npub1st2vdv5je0nhhyzh2ja6ec9g8ay6segwpsytvxrwezxaxkgrypesgdqgcm While you're getting settled in, you might want to check out nostr:npub14nlrjnwuj4gxmqsdut75vv26wcce5t0xe89e0gc0yfg84h58xdtqm3neue (created by my colleague nostr:npub1cqwfpu4znm2al0jksr5ah40vqcmdgf9gsvjh269k3pfdjrlllkks2jqsc0), to give you a sampling of law-related content & people


nostr:npub1st2vdv5je0nhhyzh2ja6ec9g8ay6segwpsytvxrwezxaxkgrypesgdqgcm Welcome!


nostr:npub1gdpx6eqltulh2na9av2tlxxfnsrn6j2p6p3qf645mj65g9k5vhgqdcd95w Thanks!


nostr:npub1gmrk8jw5msutfzsynagzxvyvawemdszt26z6te9xfyzaa22wpg4s2mcuw9 I mean, it's worked fine for me most of the time (the exceptions being when there's a big ex-Twitter influx)


nostr:npub18lnxdsk37msdzx90qed0rxn5swmwp4vwd54xawk0thx88k93awcsppaezy Could be.


Seriously, though. This is getting really annoying.


Here's the full complaint: https://www.scribd.com/document/675608005/Smiley-v-Schedule-A-Complaint-0-23-cv-61899

https://files.mastodon.social/media_attachments/files/111/182/835/609/298/471/original/1603e38c91f4b103.jpg


And who are the attorneys here? That's right--the guys who (unsuccessfully) tried judge-shopping in #BlueSphere and who sought (and, unfortunately, obtained) injunctions against infringing an expired design patent in #CasioVersusScheduleA

https://mastodon.social/@design_law/111057946228411324

Looks like it's time for hashtag to keep track of these guys. #HughesSocol

https://files.mastodon.social/media_attachments/files/111/182/772/759/384/669/original/3eef760f96a323b7.jpg


"Although the court recognizes that its ex parte TRO ruling was wrong, the court doesn’t excoriate Emojico for its bogus advocacy. Instead, the court orders the merchant to answer the complaint and proceed with the litigation.... Worse, the court doesn’t question if it made the same mistake with respect to the dozens or hundreds of other defendants in this lawsuit who already settled or were subject to default judgments."

- nostr:npub1hrj2028dawlu4qtmuwe9q0fg3eer6ltdxs2l4n6ys475egs88vrsg56p8k

https://blog.ericgoldman.org/archives/2023/10/in-a-sad-scheme-case-court-rejects-injunction-over-emoji-trademark.htm

#ScheduleA #Emojico


nostr:npub13ed0zwt0z6fga7tg6q7p4crvy3eyfm3y83j3xcz4l3g3y0emkr0sl8s5sm Ew, SUPER creepy.


What's going on with the Mastodon web interface (advanced view)? Since yesterday, I keep getting rate limited but I'm not doing anything excessive. Nothing different from normal.


What's going on with the Mastodon web app (advanced interface)? Since yesterday, I keep getting rate limited but I'm not doing anything excessive. Nothing different from normal.


The Smiley Company (represented by Richard Guerra of  THE BRICKELL IP GROUP, PLLC) alleges that it is entitled to § 289 damages for....trademark and copyright infringement.

It's actually even worse than that. They seem to think § 289 (which, to be clear, only applies to certain acts of design patent infringement) entitles them to TREBLED profits.

It does not.

For more on how § 289 damages actually work, see this article: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3033231

#ImproperDisgorgementDemands

https://files.mastodon.social/media_attachments/files/111/182/661/233/232/288/original/0d19ff7cb4980446.jpg

https://files.mastodon.social/media_attachments/files/111/182/670/792/732/325/original/5df2ac73f9a9872e.jpg


nostr:npub1gdpx6eqltulh2na9av2tlxxfnsrn6j2p6p3qf645mj65g9k5vhgqdcd95w I don't suppose you have any cites/links handy for the soccer point? I'm writing a paper on counterfeit rhetoric and might need to add something about privacy now


nostr:npub13vj2zrsaas2gcngctp6766vlnfaxhaun6pzh7v5xnnl4ka48k9ss7a9alu Ha! No. This is a utility patent, so the drawings don't really matter (except in cases where they do).


It's KSR day in Patents!

#PatentFedi #LawFedi

https://files.mastodon.social/media_attachments/files/111/177/976/494/944/240/original/ce75cd3cea9101c9.png


IP issue-spotter of the day


D782,583 - issued in 2017 for a design for a "stuffed bear." The collar is not part of the claimed design. #DesignPatents

https://files.mastodon.social/media_attachments/files/111/177/829/473/600/951/original/751ce3339e660ec1.jpg


Chilling Effects, but for people who file bad #ScheduleA claims


nostr:npub16pcnkuannwmpwmu9phqvyg93uavdgdmzgy8cfrzvk7swr98udfus6s8j5n Wait, did the judge only dissolve the order vis-a-vis this defendant? Wouldn't this logic apply to all of them?

https://files.mastodon.social/media_attachments/files/111/177/479/379/243/876/original/e634980d783d3e86.jpg


It's also notable that the "cost effective" solutions touted/pushed by IP owners (CBP enforcement, #ScheduleA litigation) always seem to depend on bulldozing over the due process rights of the defendants and putting additional obstacles in their paths (e.g., seizing assets or goods).


nostr:npub16pcnkuannwmpwmu9phqvyg93uavdgdmzgy8cfrzvk7swr98udfus6s8j5n Yes, exactly. Shyamkrishna Balganesh has a great paper about how enforcement costs are a part of the current copyright system:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2150716


nostr:npub1kaq7mpsdt0du6huhju4hz64jjqj4375mmz8ujp0ycm5urw6f4rks7qnvvg Specific examples? Not that I don't believe you; just thinking some things through.


This is relevant to a lot of issues, including the "right without a remedy" arguments we've seen in various arguments over remedies.

Your right is the right to sue.

Not the right to be free of infringement.

Or to stop infringers in a "cost effective" way.


Do people make these kinds of arguments in other areas of the law? Do contracting parties argue it's "unfair" to make them sue to enforce their contractual rights? Do shareholders suggest it must be quick & easy for them to get satisfaction from misbehaving directors? I'm honestly curious.

#LawProfs #LawFedi


I'm still thinking about the speaker at yesterday's #CounterfeitRoundtable who seemed to suggest is was somehow unfair to make IP owners sue to enforce their rights.

But that's the whole point of IP.

The "right" you get from the statute is the right to sue. Not a right to be free of infringement. Not a right to cost-effectively stamp out every competing use you don't like.


Following up on the issue of recording the USPTO's #CounterfeitRoundtable: https://mastodon.social/@design_law/111172268904513076

I emailed someone in the Office yesterday and was told, in no uncertain terms:  "We definitely are not videotaping."

When I got that email, Webex still said there was a "recording in progress."

🤔


nostr:npub16pcnkuannwmpwmu9phqvyg93uavdgdmzgy8cfrzvk7swr98udfus6s8j5n That's an interesting question. It might help if judges actually awarded bond damages. Have you ever seen that happen? I haven't come across any such awards in the patent cases I've followed


nostr:npub1a8ga8g47g07x5q2z4planxak79e555s3zfg77a7v97vuc37att9qpa60k6 🤨


Okay, the #CounterfeitRoundtable continues but I need to run.

Thanks for hanging out with me for a while here.

https://www.uspto.gov/about-us/events/roundtable-future-strategies-anti-counterfeiting-and-anti-piracy


Goldman: "Rightsowners will continue to look for ways to bypass the notice-and-takedown scheme and will continue to look for scaled solutions," like #ScheduleA.


Sands: "Information-sharing is probably the most important" piece of enforcement going forward. [Cue privacy interests? CC: nostr:npub18y02ymxxpmessek8xjhk86n6hh3j3z07s6mrfdx27n7tn3tjls0s4dnsjz ]


Rufo: "It's hard to imagine what types of technologies might emerge" but will probably exist "under the AI umbrella." Notes that these systems work on previously-collected information.


Sternburg: The DMCA did a good job anticipating the future of the Internet. Will continue to be a powerful tool "for creativity and free expression online."


Blank: What's going forward?


Goldman: The question is "what's required to establish the litigation." Our standard model is one plaintiff versus one defendant. The plaintiff has to establish the elements of their claim. The #ScheduleA model tosses that all "in the trash."

Corners are cut on things like jurisdiction, joinder, venue. "Judges haven't been policing that."

Rightsowners are trying to do enforcement on a mass scale, without establishing each of those claims.


Sands: Our small clients can't afford to file lawsuits.

So they should just be able to shut people down whenever they want?


Sands: "Yes, that is what is required." But "a lot of the platform users that we file complaints against...file counter-notices because they know" how that process works.


Sternburg: Are you complaining that Amazon....follows the DMCA?


Sands complains that the DMCA requires her clients to actually file lawsuits. 🙄


Ashe: "Sometimes it's infringers reporting on infringers." 🤔


Ashe: "I've seen forged counter-notices" from "fake law firms." 🤔


Ashe: "I've seen forged counter-notices." (How do you forge a counter-notice?)


Ashe: "I've seen forged counter-notices." (How do you forget a counter-notice?)


Rufo points out there are bad actors on both sides, including rightsowners who are using takedown notices when they are "really trying to enforce their pricing strategies" or for other purposes.


Jennifer Blank, Attorney Advisor, Office of Policy and International Affairs, USPTO (the panel moderator): "What risk is there that the platforms are being fed false or counterfeit information" to support counter-notices?


Sands just takes a swipe at eBay 😂


Note: This is a reason why #CounterfeitRhetoric matters. If you frame this as a fight about evil "counterfeiters," it looks different than saying it's a fight against "competitors."


Ashly Sands, Epstein Drangel LLP: "The term whack-a-mole is very prevalent in my practice." Clients spend lots of money on notice-and-takedown services (has anyone written about these?), have done other enforcement activities..."those costs are just astronomical." There need to be solutions, she says, beyond notice and takedown.


For my take (so far) on the #ScheduleA phenomenon, see:

- https://patentlyo.com/patent/2022/10/guest-post-about.html

- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909


Eric Goldman, Santa Clara University School of Law: Rightsowners have been unhappy with the notice-and-takedown scheme from the start, have been trying to find ways around it.

The latest attack: The #ScheduleA approach

Here's nostr:npub1hrj2028dawlu4qtmuwe9q0fg3eer6ltdxs2l4n6ys475egs88vrsg56p8k's paper about this: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4381824


Ali Sternburg, Computer & Communications Industry Association (CCIA): "Enforcement burdens should be allocated in a balanced manner," e.g., DMCA § 512.


nostr:npub1dqzd8lewwnyklxct9kjjwgxp7g9etn8swqjn5emedwr7jgxw2w0qrc7xwk reminds us that the public is a stakeholder


nostr:npub1dqzd8lewwnyklxct9kjjwgxp7g9etn8swqjn5emedwr7jgxw2w0qrc7xwk: "Enforcement burdens should be allocated in a balanced manner," e.g., DMCA § 512.


James Ashe, OpSec Security: "I'm not a salesperson so I hope this doesn't sound like a sales pitch."

It does, though. It really does.


Rufo: eBay uses AI & "well-trained human investgators" to "police [their] marketplace."


Anthony Rufo, eBay: The most important thing for us is trust & safety. Communications between rightsowners and eBay are important. Also, "we screen every listing" before they're posted.


nostr:npub1hx90n0mzt7323wtt00wy0l7u56m4zsm5e50tlcq2pq006dw58rgs77lyhl Oh, that's good to know. Thanks!


Okay, back for panel 5 of the #CounterfeitRoundtable, featuring nostr:npub1hrj2028dawlu4qtmuwe9q0fg3eer6ltdxs2l4n6ys475egs88vrsg56p8k and nostr:npub1dqzd8lewwnyklxct9kjjwgxp7g9etn8swqjn5emedwr7jgxw2w0qrc7xwk

https://files.mastodon.social/media_attachments/files/111/172/298/209/701/667/original/1cbde9a08f90f126.jpg


And yes, I know FOIA exists. This just reminds me about how they used to livestream Design Day but ONLY to the regional offices.


If it's about the speakers showing up on video (maybe they didn't get and think they need releases), maybe get a transcript? Yes, that would be more expensive but they did just crow about their huge budget...


I mean, I assume there's some nonzero cost to storing the video. But it sounds like they'll be doing that anyway.


When I signed onto WebEx for the USPTO's #CounterfeitRoundtable, I was informed the session was being recorded. So I asked, in the chat, if the recording would be made available. I was told that the recording was "for internal purposes only."

But why? If it's a public event, why not share the recording of the public comments?


The #CounterfeitRoundtable is taking a break for lunch.

Back at 2 p.m. Eastern:

https://www.uspto.gov/about-us/events/roundtable-future-strategies-anti-counterfeiting-and-anti-piracy


Mansfield: Most other places are in the middle. "With the exception of Surinam..." (?) you can just go in, talk to people...


Mansfield: "When Russia rejoins the world of nations," it will be a mess w/r/t IP.


Mansfield: There's a "spectrum." On one hand, there's Saudi Arabia. There's some new program and it's "looking great." Saudi "has a vision for the future and IP is sort of centered within it."

On the other end, there's Russia. People don't want to do business with them because Ukraine. Russian court said it wouldn't enforce his company's IP rights (he suggests in retaliation)


(Still no definition of counterfeits here, from her or from anyone else)


Dalla Val: We have worked to "educate consumers on the dangers of counterfeit goods."


Dalla Val: Amazon created a counterfeit crime unit to work with law enforcement "across many parts of the world."


Dalla Val: We're giving sellers tools.

Unstated pretty loudly: People need to use them.


Arochi: In Mexico, there are lots of different kinds of actions--civil, criminal, administrative. The "judges want to help," while platforms are full of "excuses."


Mansfield: I am NOT talking about bribery.


Mansfield: Any brand protection program has to have a plan for China.


William Mansfield, ABRO Industries, Inc.: "If you ever get the chance to throw someone in jail, it's great. Super fun."

Well, okay then.


Wonder what she thinks of the earlier suggestion that Amazon's IP evaluation be federalized.


Anna Dalla Val, Amazon: "We operate in a global environment," have to comply with lots of different laws. "We also face global challenges" across jurisdictions.


Roberto Arochi, Arochi & Linder: "The problem in Mexico is not the law." The problem is that "our president and attorney general don't want to do enforcement."


Okay, time for panel 4 at the USPTO's #CounterfeitRoundtable.

https://files.mastodon.social/media_attachments/files/111/171/955/501/277/201/original/3e2806dcead729a3.jpg


nostr:npub1r673rxmdxdeluclpfsp255wdca3rayc8cycxrc47dksx56dsv5vqqkevpa Uh, oh. What are you reading/teaching today? 😂


nostr:npub1r673rxmdxdeluclpfsp255wdca3rayc8cycxrc47dksx56dsv5vqqkevpa Yes, exactly. I talk about that a bit here (but will likely build it up more, and add the privacy bit in the next draft):
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909


Matthew Wayland, Semiconductor Industry Association, arguing for increased CBP enforcement, presumably referring to something like this: https://patentlyo.com/patent/2020/01/against-design-seizure.html


nostr:npub1a4tgkd6mnw6565svfaqvfsxj0auyt7gdagtterm2skxnwrtr3a9sp9q9yj 😂


nostr:npub1r673rxmdxdeluclpfsp255wdca3rayc8cycxrc47dksx56dsv5vqqkevpa The panelists were short on details but they seemed to be envisioning a LOT of surveillance tech


Michael Patrick, Greenspoon Marder LLP: "Streamlined." Everything needs to be "streamlined."

Not clear exactly what he's talking about.

But it's STREAMLINED.


Lance: "What is the government's role in this?"


nostr:npub1r673rxmdxdeluclpfsp255wdca3rayc8cycxrc47dksx56dsv5vqqkevpa Someone from CBP was also talking about "identity verification" tech being one answer to "counterfeiting"


nostr:npub1r673rxmdxdeluclpfsp255wdca3rayc8cycxrc47dksx56dsv5vqqkevpa There have been various suggestions that privacy laws block people from doing the kinds of surveillance they'd like to do in furtherance of their IP enforcement efforts


Sean O'Hearen, 1stLine Partners: People understand that "counterfeit medicines" are dangerous, we need to link that to other things


One big takeaway for me so far from this #CounterfeitRoundtable:

 The "counterfeit" people are coming for privacy.

Are privacy people listening to/paying attention to this stuff?

---

By "counterfeit" people, I mean the people who are using counterfeit rhetoric to try to expand IP rights and/or shift costs for IP enforcement.


One big takeaway for me so far from this #CounterfeitRoundtable:

 The "counterfeit" people are coming for privacy.

Are privacy people listening to/paying attention to this stuff?


"Mom & Pop criminal entrepreneurs"? That's a new one (to me, anyway)


"Mon & Pop criminal entrepreneurs"? That's a new one (to me, anyway)


Sean O'Hearen, 1stLine Partners: "Patient safety is #1 in the pharmaceutical industry."


Gabrielle Holcomb, U.S. Department of Energy: COVID made it harder for manufacturers to do inspections


Holly Lance, Attorney Advisor, Office of Policy and International Affairs, USPTO (moderator): "The word 'infrastructure' is a big of a misnomer" here.

"we're using this term to refer mainly to business-to-business goods."


Okay, what should I add to a new "counterfeit" BINGO card, for use in roundtables, hearings, or the like. So far, I've got:

- Someone uses "counterfeit" without defining it

- "Whack-a-mole"

- "Criminal networks"

- "Terrorism"

- "Safety"

- Someone denigrates privacy rights/rules

- Someone gets a basic point of DP law wrong

- "But think of the SMEs!"

- "It's not a victimless crime"

What else?

https://files.mastodon.social/media_attachments/files/111/171/823/177/856/632/original/09ac848c4282995e.jpg


Now complaining about trade secrets getting in the way of IP enforcement/surveillance


More complaining about privacy laws getting in the way of IP enforcement 🙄


nostr:npub1zw4meu6su7mng2asput20j9druy50ewnt4ef8vyc5rcu636vfycqhx8pn0 Thank you!


From an email I just got (presumably because I chimed in on the USPTO chat):

"I been working on an anti counterfeiting solution since 2019. The solution is a title recording alike system utilize blockchain technology and NFT."

I think this guy is serious.

https://files.mastodon.social/media_attachments/files/111/171/782/582/145/226/original/bcedfb55b77659ef.jpg


First mention of "whack-a-mole"!

(Should have made a BINGO card.)


Of course, this is calculated. The fight over who should pay for enforcement isn't new and those who want to pawn those costs off on taxpayers need a "hook" to argue there's something new going on.


Listening to these panels, you'd think no one shopped (or sold goods online) before COVID


Li Zhu, Quarles & Brady LLP is the first one to even attempt to make a link, asserting there has been more "counterfeiting" (which she doesn't define) "due to the supply shortage due to COVID."


Lots of people today blaming COVID for increasing "counterfeiting."

No explanation for how a virus could do that.


Van Horn: "There are still parties using paper."

The horror! How will we surveil them??


Van Horn: "There are still parties using paper."

The horror! How will we surveil them!


Okay, so I have no willpower.

Listening to the CBP person talk about "identity validation" and getting a very dystopian, privacy-killing vision of future IP enforcement.


Well, it's clear that the USPTO has no interest in using the terms "counterfeiting" or "piracy" clearly or responsibly.

That's disappointing.

#CounterfeitRoundtable


On to the second panel in the USPTO's #CounterfeitRoundtable

I may need to sit this one out.

https://files.mastodon.social/media_attachments/files/111/171/679/704/153/139/original/b73296607896ef26.jpg


And the first panel is done.


Me in the chat rn:

https://files.mastodon.social/media_attachments/files/111/171/667/909/146/410/original/31249710befb87de.jpg


This is so irresponsible.


Bohi: "Funds from counterfeiting are used for terrorism."

Just throws that out there. No citations. No support.

Side note: The alleged "evidence" for this kind of thing is....not compelling. See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909


Bohi: "Funds from counterfeiting are used for terrorism."


Bernarde now calling out Temu & Shein for "stealing a lot of money for businessholders" through "patent infringement."

If he means design patents, I'd like to see pictures.

This guy doesn't appear to be an attorney. I'm not sure he's qualified to evaluate infringement.


Bernarde now calling out Temu & Shein for "stealing a lot of money for businessholders" through "patent infringement."

If he means design patents, I'd like to see pictures.


Benarde says this is the only way to make platforms "do the right thing"

!!!


Back to Benarde, with a proposal to basically federalize the Amazon Neutral Patent evaluator program should be federalized, mandatory (at least above certain $ threshold) “All the onus is taken off of the platforms,” they don’t need to do anything

“They just let the government tell them which products stay up and which products come down”

!!!


Caridad Berdut, Senior Counsel, Office of Policy and International Affairs, USPTO, the moderator, just chimed in:

"Trademarks don't work like they used to. Counterfeiters just don’t use the trademark.”

THEN IT'S NOT COUNTERFEITING


Killbride: We want to help government by "directing government enforcement activities" 🙄


Killbride: We're not just TAKERS, we're GIVERS! We want to help government by "directing government enforcement activities," e.g., working with CBP

Yes, so much HELP. From the bottom of your HEARTS. 🙄


Killbride: When it comes to IP, the Chamber's goal is "to promote an overall rule of law environment"

Sure, Jan.


Killbride throwing out stats that sound pretty scary but I'd be carefully about putting too much stock in them.

The methodology behind these "studies" is often....less than impressive


Next up: Patrick Kilbride, Global Innovation Policy Center (GIPC) at the U.S. Chamber of Commerce


nostr:npub1nxxg5vlw8utexkga2fshg5n3t749srlc3u7am34gqfuetw27l9hs6mwsjl Totally understandable.


nostr:npub1nxxg5vlw8utexkga2fshg5n3t749srlc3u7am34gqfuetw27l9hs6mwsjl !!


Castiglioni: There are three types of criminal counterfeiting in Italy (which apparently includes "just infringement"?)


Castiglioni: There are three types of criminal counterfeiting in Italy


Side note: Companies arguing "but the platforms should pay" for IP enforcement isn't new.

Heck, Tiffany v. eBay is over a decade old.

https://en.wikipedia.org/wiki/Tiffany_(NJ)_Inc._v._eBay_Inc.


nostr:npub1nxxg5vlw8utexkga2fshg5n3t749srlc3u7am34gqfuetw27l9hs6mwsjl Yes, absolutely. One wonders if that's (at least part of) the point


Next up: Riccardo Castiglioni, CBMLD Law Firm


Policz opens with (only slightly paraphrased): Oh, no, poor me. It's so hard to find clients for my services

Ends with: Everyone should buy my services.

Okay.


Policz (only slightly paraphrased): Oh, no, poor me. It's so hard to find clients for my services


Next speaker: Donna Policz, Authentic Vision


nostr:npub1nxxg5vlw8utexkga2fshg5n3t749srlc3u7am34gqfuetw27l9hs6mwsjl Platforms. And maybe the government, I assume (e.g., CPB enforcement)


With all this safety talk, note that without a definition, they might be using the word "counterfeit" to refer to products that infringe design patents.

There is no necessary connection between DPs and safety.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909


Bohi (again, only slightly paraphrased): Yes, WE'RE big companies, but THINK OF THE LITTLE GUYS


Bohi just mentioned "registering...patents." 🙄


(Yes, actually it can. That's how IP law generally works.)


Bohi: "The burden of enforcement cannot only be on the rightsholders...."


Bohi: "Counterfeiters" sell "counterfeit products" using "noninfringing listings."


So far, no one has defined the word "counterfeit" before using it


Bohi (only slightly paraphrased): My organization ONLY cares about SAFETY. Yes, there's $1B at stake but don't pay attention to that


Bohi: My organization ONLY cares about SAFETY. Yes, there's $1B at stake but don't pay attention to that


Next up: Teena Bohi, Automotive Anti-Counterfeiting Council (A2C2)


Benarde: We need to "take back the power from platforms" for "patent reform."


Benarde: "Trademarks have become useless to some degree" against...people who "don't use your name."

Well, yeah. That's how trademarks work.


Benarde bemoans the fact that platforms won't take down accused products without a court order.


Benarde (NightCap) going after "online sellers."

"We need to reinvent the system" because "dropshippers and Chinese factories."


The first question goes to the obligatory "small business" representative:

https://www.linkedin.com/in/mdb7/


Remember, one big goal of #CounterfeitRhetoric is to convince lawmakers that taxpayers should pay to enforce private (IP) rights:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909


First panel is being introduced. Apparently, we'll be hearing about "dangerous counterfeit auto parts"

CC: nostr:npub102dg2gj3jekp36dzcuc5caf7077w5c09dca8yxq8tqgvc0uj6kksurs0l2


See my paper for receipts (that don't support the broad brush Brent just used) on this issue:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909


Oh, here we go. Brent is leaning in hard on "counterfeiting" and "piracy" as "financing criminal networks."


Brent is spinning the comments as all supporting "anticounterfeiting" efforts. 🙄


And NOPE, he's not defining "piracy" or "counterfeiting" before using those words


First up: Derrick Brent, Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO

#CounterfeitRoundtable


Okay, it's time for the #CounterfeitRoundtable!

Let's see how long I can stand to listen in....

https://www.uspto.gov/about-us/events/roundtable-future-strategies-anti-counterfeiting-and-anti-piracy


nostr:npub16pcnkuannwmpwmu9phqvyg93uavdgdmzgy8cfrzvk7swr98udfus6s8j5n 👀


nostr:npub16pcnkuannwmpwmu9phqvyg93uavdgdmzgy8cfrzvk7swr98udfus6s8j5n nostr:npub1hrj2028dawlu4qtmuwe9q0fg3eer6ltdxs2l4n6ys475egs88vrsg56p8k Luckily for us, they put up a schedule: https://www.uspto.gov/about-us/events/roundtable-future-strategies-anti-counterfeiting-and-anti-piracy

Looks like he'll be up sometime between 2-2:40 Eastern.


I'll be listening in today to hear what nostr:npub1hrj2028dawlu4qtmuwe9q0fg3eer6ltdxs2l4n6ys475egs88vrsg56p8k has to say about the #ScheduleA phenomenon. But not sure how much of the rest I'll be able to stand.


I'll be listening in to hear what nostr:npub1hrj2028dawlu4qtmuwe9q0fg3eer6ltdxs2l4n6ys475egs88vrsg56p8k has to say about the #ScheduleA phenomenon for sure. But not sure how much of the rest I'll be able to stand.

https://mastodon.lawprofs.org/@ericgoldman/111166691295854423


Today, the USPTO is holding a roundtable on "anti-counterfeiting and anti-piracy."

Will anyone from the Office define those terms?

Will they ask any of the participants to do so?

https://www.uspto.gov/about-us/events/roundtable-future-strategies-anti-counterfeiting-and-anti-piracy

#CounterfeitRhetoric #CounterfeitRoundtable


Today, the USPTO is holding a roundtable on "anti-counterfeiting and anti-piracy."

Will anyone from the Office define those terms?

Will they ask any of the participants to do so?

https://www.uspto.gov/about-us/events/roundtable-future-strategies-anti-counterfeiting-and-anti-piracy

#CounterfeitRhetoric


nostr:npub160sthydp3p4fckpth8ufa5uw0lc4q57z8jlnegkfugntj2aq49eq06tpkr I don't read it that way at all. It's a story about a report put out by Eugen's org. It's clear they're talking about that report & org, not the fedi


nostr:npub1gmrk8jw5msutfzsynagzxvyvawemdszt26z6te9xfyzaa22wpg4s2mcuw9 nostr:npub14nlrjnwuj4gxmqsdut75vv26wcce5t0xe89e0gc0yfg84h58xdtqm3neue I thought that the fact this was about Mastodon the org was clear from the article, yes


"As for Mastodon’s growth — which speaks to its potential impact on X as former users flee the platform looking for alternatives — the network grew from 2,527 servers, totaling ... 294,000 monthly active users at the end of 2021 to 9,686 servers, totaling .... 1.8 million monthly active users."

https://techcrunch.com/2023/10/02/amid-twitter-chaos-mastodon-grew-donations-488-in-2022-reached-1-8m-monthly-active-users/


It's the first day of the new SCOTUS term. What fresh horrors will be wrought upon us?

#LawFedi


D408,108 - issued in 1999 for a design for "a rolling court case cart." #DesignPatents

https://files.mastodon.social/media_attachments/files/111/165/548/473/607/097/original/4da96c84efc4bd3b.jpg


My mom: Our tour guide today was telling us stories that you already told us

Me: Like what?

Mom: Like how they filled in Back Bay. How did you know that story?

Me: Well, there was a patent case. This gentleman named Nicholson came up with a new and novel wooden pavement....


My mom: Our tour guide today was telling us stories that you already told us

Me: Like what?

Mom: Like how they filled in Back Bay. How did you know that story?

Me: Well, there was this gentleman named Nicholson and he came up with a new and novel wooden pavement....


D132,205 - issued in 1942 for a design for a "budget bank." #DesignPatents

https://files.mastodon.social/media_attachments/files/111/159/963/170/353/610/original/61ce3b9f6c2d8108.jpg


A milestone: Tonight, the fedi was my best source for U.S. political updates.

Thanks especially to nostr:npub1aq2wqds7uk7g9tfv6gmm2qk0t6cmqmpzh5n9hkdghgx3d0x75syspa4nfw and nostr:npub17ha36j9rpyde8g0zuvpgygq3a80d84cyy2f4lufjqcl022uyf6zqm4t8va


Please enjoy this amazing meme created by one of my Civ Pro students (shared with permission).

#CivPro #TaylorSwift

https://files.mastodon.social/media_attachments/files/111/154/579/623/370/064/original/68bf68b285f575b3.jpg


Anyway, kudos to the Phans/DUSPRO for fighting back. I guess we'll see what happens.


The new complaint also attacks the propriety of joinder in the other case. Which is good in that someone needs to raise these issues with courts. But the relevance to this case seems limited, other than just trying to make Mossify look like "a bad guy."

I hope this means the Phans/DUSPRO will file an appearance in the first case to fight joinder.

https://files.mastodon.social/media_attachments/files/111/148/721/350/745/175/original/3e615230401ee831.jpg


Now, maybe there are other accused DUSPRO products that I can't see on Amazon right now. But Mossify accused a lot of DUSPRO products and I'm surprised, given the narrow scope of this design patent, that there is no noninfringement claim


You may recall that #Mossify did not file its #ScheduleA--or its infringement "evidence"--under seal: https://mastodon.social/@design_law/110780087922676659

Judging from the (lack of) quality of most of those claims, I would have expected a noninfringement argument here.

Indeed, the picture included for DUSPRO in the Schedule A complaint is....less than compelling on the issue of infringement:

https://files.mastodon.social/media_attachments/files/111/148/713/015/461/434/original/6c3dabb82e5575c9.jpg


You may recall that #Mossify did not file its #ScheduleA--or its infringement "evidence"--under seal: https://mastodon.social/@design_law/110780087922676659

Judging from the (lack of) quality of most of those claims, I would have expected a noninfringement argument here.

Indeed, the picture included for DUSPRO in the Schedule A complaint is....less than compelling on the issue of infringement:


Anyway, perhaps this confusion explains the lack of a noninfringement claim in this new DJ complaint.


Remember, design patents protect the claimed shape, NOT the larger design concept.


Also, the description of these references as "identical" because they "featur[e] a generally columnar portion of moss bound in string or twine in such a way that it has an irregular outer contour" suggests some general confusion about the scope of design patents more generally.


Also, the description of these references as "identical" because they "featur[e] a generally columnar portion of moss bound in string or twine in such a
way that it has an irregular outer contour" suggests some general confusion about design patents more generally.


For example, the plaintiff alleges that these references are "identical" to the claimed design (which is of course, the standard for anticipation, not obviousness). But they're not. They're likely not even similar enough to count as proper primary references under the current case law.

https://files.mastodon.social/media_attachments/files/111/148/693/444/003/730/original/dc055d4e02d5f3c5.jpg

https://files.mastodon.social/media_attachments/files/111/148/693/450/029/918/original/36930ed1fd37d035.jpg

https://files.mastodon.social/media_attachments/files/111/148/693/665/325/650/original/0678dab3288a9144.jpg


Second, it's not obvious to me, from these allegations, that plaintiff's counsel actually understands the relevant legal standards for either functionality or obviousness.


First, it is incredibly difficult to prove invalidity due to functionality and due to obviousness, as a general matter: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3329899


In the new complaint, defendants from the previously-reported #ScheduleA case allege that the asserted #Mossify patent is invalid as functional and as obvious.

Good luck with that.

https://files.mastodon.social/media_attachments/files/111/148/669/305/812/039/original/2d3bc93bcced4b82.jpg


In good news: Someone is fighting back against those #Mossify design patent claims (h/t nostr:npub16pcnkuannwmpwmu9phqvyg93uavdgdmzgy8cfrzvk7swr98udfus6s8j5n):
https://design-law.tumblr.com/post/729802165899657216/do-these-references-render-this-design-obvious

In bad news: Well, let's take a closer look at the declaratory judgment complaint.

#DesignPatents


nostr:npub17jqv34pnzms2a97wcsw4pcw7jxh9fn47ldnswqxqtnxf5aw4x46ql4ye3e Also, "blocka" and "mansplaina" are my new Swedish vocab words of the day 😆


nostr:npub17jqv34pnzms2a97wcsw4pcw7jxh9fn47ldnswqxqtnxf5aw4x46ql4ye3e Oh no. I haven't experienced that yet but I completely agree: Block and mute without compunction


nostr:npub16pcnkuannwmpwmu9phqvyg93uavdgdmzgy8cfrzvk7swr98udfus6s8j5n Good. I'm not sure from this pic whether the earlier claim is actually close enough to anticipate but to make that argument, Mossy will effectively have to admit that a number (most? all?) of the accused products aren't close enough to infringe


I have to run but: This isn't trade dress. It's definitely not counterfeiting. I hope someone shows up to fight back against this nonsense.


And this doesn't appear to be just a typo; the plaintiff also refers to "counterfeiting" elsewhere, e.g.,

https://files.mastodon.social/media_attachments/files/111/144/519/492/200/260/original/d76874d697f206ae.jpg


A: That's right, counterfeiting requires a REGISTERED trademark.


The first claim is for "FEDERAL TRADEMARK COUNTERFEITING AND INFRINGEMENT (15 U.S.C. §1114)."

Pop quiz time: Why can there be NO plausible claim for trademark counterfeiting here?

https://files.mastodon.social/media_attachments/files/111/144/510/214/008/471/original/b83920f209abf410.jpg


The first claim is for "FEDERAL TRADEMARK COUNTERFEITING
AND INFRINGEMENT (15 U.S.C. §1114)."

Pop quiz time: Why can there be NO plausible claim for trademark counterfeiting here?

https://files.mastodon.social/media_attachments/files/111/144/510/214/008/471/original/b83920f209abf410.jpg


Then it alleges that it has some registered copyrights. (I didn't pull these exhibits from PACER.)

https://files.mastodon.social/media_attachments/files/111/144/504/999/771/506/original/261c44cdf3fc256c.jpg


First of all, it asserts an (unregistered) trade dress in, basically, black-and-white images of a white, European-looking Jesus gripping flags:

https://files.mastodon.social/media_attachments/files/111/144/486/939/025/030/original/e572e08c574a5789.jpg


Remember #XPed? It's filed an amended complaint using its true name, Expeditee LLC, following Judge Jenkins' order sanctioning both the plaintiff and its counsel.

New complaint: https://storage.courtlistener.com/recap/gov.uscourts.ilnd.409127/gov.uscourts.ilnd.409127.124.0.pdf

Background:
https://mastodon.social/@design_law/111024034254743916

Let's take a look, shall we?

#Trademarks #Copyright #ScheduleA


ICYMI, the U.S. Consumer Product Safety Commission (that's right) put out an album: https://www.cpsc.gov/Were-Safety-Now-Havent-We

And nostr:npub1r673rxmdxdeluclpfsp255wdca3rayc8cycxrc47dksx56dsv5vqqkevpa did a ska-punk remix the first song: https://soundcloud.com/blakereid-809368957/protect-ya-noggin-skatepark-safety-remix#t=0:00

Fair warning: This is a total earworm

#LawFedi #CPSC


ICYMI, the U.S. Consumer Product Safety Commission (that's right) put out an album: https://www.cpsc.gov/Were-Safety-Now-Havent-We

And nostr:npub1r673rxmdxdeluclpfsp255wdca3rayc8cycxrc47dksx56dsv5vqqkevpa did a ska-punk remix the first song: https://soundcloud.com/blakereid-809368957/protect-ya-noggin-skatepark-safety-remix#t=0:00

Fair warning: This is a total earworm


Every time I see a news story refer to an IP bill as "bipartisan." 🙄


Periodic reminder that, especially when it comes to U.S. IP policy, "bipartisan" is not a synonym for "good."


"'This bill is not a nuanced attempt to excise harmful products from the marketplace,' Goldman said. 'It is a neutron bomb designed to wipe marketplaces off the internet.'"

- nostr:npub1hrj2028dawlu4qtmuwe9q0fg3eer6ltdxs2l4n6ys475egs88vrsg56p8k on the reintroduced "Shop Safe" Act:

https://www.law360.com/ip/articles/1726081?nl_pk=fd062d42-234e-4b6a-b9b5-4052fd7ef7ac&utm

Here's the text of the bill: https://www.coons.senate.gov/download/shop-safe-bill-text

Here's what appears to be the bill's page on nostr:npub1k0nx6l7ey9nvx0fnumdgedmakz67xmh26lvr765s3d4gnkqtdnksatdj0k: https://www.govtrack.us/congress/bills/118/s2934

#Trademarks #Legislation #ShopSafe


Note: While it's not uncommon (and absolutely appropriate) to determine design patent noninfringement on a motion to dismiss, it is unusual to see it in a trademark case.

The test for design patent infringement asks a single question: Does this product look like the claimed design? If the answer is "absolutely not," that fact won't change in discovery.

The test for trademark infringement, on the other hand, has multiple factors, based on facts that might benefit from development in discovery.


That's not to say it's per se inappropriate to rule on noninfringement on a motion to dismiss in a trademark case.

Just pointing out that it's unusual.


Note: While it's not uncommon (and absolutely appropriate) to determine design patent noninfringement on a motion to dismiss, it is unusual to see it in a trademark case.

The test for design patent infringement asks a single question: Does this product look like the claimed design? Those facts won't change during discovery.

The test for trademark infringement, on the other hand, has multiple factors, based on facts that might benefit from development in discovery.


Note: While it's not uncommon (and absolutely appropriate) to determine design patent noninfringement on a motion to dismiss, it is really unusual to see this in a trademark case. That's because the test for trademark infringement, unlike the test for design patent infringement, has multiple factors, which involves lots of facts (and, most importantly, facts that can be affected by/developed in discovery).


Wonderful Company v. Nut Cravings - Court grants motion to dismiss product-packaging trade dress infringement claims, concluding that the plaintiff has failed to plead a plausible claim of infringement (and failed to sufficiently allege nonfunctionality vis-à-vis the unregistered trade dress claim):

https://storage.courtlistener.com/recap/gov.uscourts.nysd.559589/gov.uscourts.nysd.559589.38.0.pdf

#TradeDress #Twiqbal #CivProMatters

https://files.mastodon.social/media_attachments/files/111/143/038/018/934/700/original/b1102ef57d0ec459.jpg


One of the attorneys of record here in Zhao is the guy who filed the #Mossify case:

https://mastodon.social/@design_law/110780087922676659


I mean, just look at this level of detail--all claimed!

https://files.mastodon.social/media_attachments/files/111/142/988/484/608/562/original/58d04f6f5a74b264.jpg


Beyond the fact that the complaint doesn't allege trademark infringement of any kind--let alone actual counterfeiting--I wonder what Rule 11 investigation plaintiff's counsel here did that would justify the assertion that a "counterfeiting operation" exists, or a "counterfeit network."


Oh, and of course there's #CounterfeitRhetoric:

https://files.mastodon.social/media_attachments/files/111/142/957/348/780/006/original/25aec41fb9eba557.jpg


Zhao v. #ScheduleA - The plaintiff alleges design patent infringement but doesn't include the patent or patent number.

The complaint itself doesn't suggest any reason why this secrecy might be necessary or proper.

An exhibit cover sheet avers that "[a] corresponding motion is being filed herewith to seal the asserted patent," but no such motion is on the docket.

https://www.scribd.com/document/674240493/Zhao-v-Schedule-A-Complaint

Color me extremely skeptical about this one.

#DesignPatents

https://files.mastodon.social/media_attachments/files/111/142/938/726/992/743/original/33eedee7d35831c5.jpg

https://files.mastodon.social/media_attachments/files/111/142/939/955/694/371/original/52de77a6bf8d5e93.jpg


"Do research, don't assume" is probably the best advice I could give any attorney who is starting out in design patent work.


This plaintiff seems to be confused about how design patent damages work.

To recap: You can get an accounting of profits OR actual damages. But only the latter can be trebled.

This is a well-established and long-standing rule.

But you have to actually do a little research. Not just make assumptions.

For more on design patent damages, including the special "total profits" remedy: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3033231

#DesignPatents #Remedies

https://files.mastodon.social/media_attachments/files/111/142/880/856/241/880/original/224db5c29b7db04f.jpg


Handson Equine v. Boss Pet - New design patent case over grooming gloves: https://design-law.tumblr.com/post/729709963220516864/do-these-gloves-infringe-these-design-patents

#DesignPatents

https://files.mastodon.social/media_attachments/files/111/142/874/892/436/740/original/c110475573ce5522.jpg


You've heard me express frustration with the design & function of Patent Center.

Apparently, I'm not the only one:

https://blog.oppedahl.com/?page_id=9872

#PatentFedi


You've heard me express frustration with the design & function of Patent Center.

Apparently, I'm not the only one:

https://blog.oppedahl.com/?page_id=9872


nostr:npub1erhna4874q0fn77e5fz4mfstdx68vskjn8j87gl3qc5nh9jsph6q7nf9a6 Ah, got it. Just sounds funny, is all. Hopefully, the CMS is working better now?


nostr:npub1erhna4874q0fn77e5fz4mfstdx68vskjn8j87gl3qc5nh9jsph6q7nf9a6 Seems odd to characterize something as an "exception" when it's presumably the first decision on the issue. Just saying 😊


D165,754 - issued in 1952 for a design for a "duck decoy." #DesignPatents

https://files.mastodon.social/media_attachments/files/111/139/589/954/463/747/original/e3b808f2edd247a0.png


Reading  Ford Motor Co. v. Montana and, wow, does the duck decoy hypo hit different after a year of studying the #ScheduleA phenomenon.


Update: This has now been fixed.

#OneMillionDesignPatents


nostr:npub1j9pj6zkcwys334vk5ap6y24w4l6qcjzckh0kn9ygvw76g42g3j3qfk6kez Not to the story but I posted the court docs in the second post in the thread


nostr:npub1xlqr3usqqwte7v9end3gvjgz9jdc6q2ymlr024ju4ezagphnpnzqsq72aw Nope, had missed all of that


"Frustrations flared before, during and after the hearing Tuesday."

"The attorney said he felt like he was 'under attack.' But Judge Neureiter shot back, stating that Ticktin had 'called 45 people crooked' with "boilerplate allegations" that he said arguably violated a federal rule of civil procedure."

Read more at: https://www.law360.com/ip/articles/1725942?nl_pk=fd062d42-234e-4b6a-b9b5-4052fd7ef7ac&utm


Full order: https://www.scribd.com/document/674010319/GS-Holistic-v-Vaportoke-Order

Plaintiff statement: https://www.scribd.com/document/674010545/Holistic-v-Vaportoke-Plaintiff-Statement


Oh, wow, imagine if judges applied this logic to #ScheduleA cases:

"The filing of fifty-plus nearly identical copy-cat lawsuits (all by a single lawyer), presumably without any pre-suit effort at resolution, imposes an extraordinary burden on the judicial system and raises legitimate questions about whether the lawsuits are being brought in good faith or are, instead, a means of litigation blackmail filed by a trademark 'troll.'"

https://www.law360.com/ip/articles/1725942?nl_pk=fd062d42-234e-4b6a-b9b5-4052fd7ef7ac&utm


Law360 coverage of D1,000,000, featuring quotes from yours truly:

https://www.law360.com/ip/articles/1725770?nl_pk=fd062d42-234e-4b6a-b9b5-4052fd7ef7ac&utm

#DesignPatents #OneMillionDesignPatents


Updated briefing schedule in #LKQvGM:

- GM's brief is now due 10/12/2023

- LKQ's reply brief is now due 11/29/2023

#DesignPatents #FederalCircuit


Updated briefing schedule in #LKQvGM:

- GM's brief is now due 10/12/2023

- LKQ's reply brief is now due 11/29/2023

#DesignPatents #Federal Circuit


Observation: Based on a very quick scroll, it seems like the most common addition so far is Bsky + Mastodon.*

A few have added only Bsky or only Mastodon.

Least common addition seems to be Threads only.

----
* Yes, I know the fedi is broader than Mastodon but everyone has added Mastodon handles, so I'm being precise.


Fellow #LawProfs: Professor Bridget Crawford has broadened her Law Professor Twitter Census to include other social media sites.

You can update (or add) your information here: https://www.thefacultylounge.org/2023/09/law-professor-twitter-social-media-census.html

Let's make a good showing for the fedi, shall we?

#LawFedi


For those who don't follow this area closely:

- In 2016, SCOTUS punted the hard question back to the Federal Circuit;

- Who punted it back to the district courts;

- Who saw the cases before them settle.

It's 2023 and the Federal Circuit still hasn't picked an AOM test.

For my proposal: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3033231


More truth in learning outcomes:

https://files.mastodon.social/media_attachments/files/111/132/948/034/242/887/original/7282c95804425d99.jpg


We're up to TWO FULL WEEKS on remedies in Design Law.

Maybe someday I'll get to teach a full Remedies course....


#Remedies friends: What are your favorite teaching cases for copyright & trademark (bonus points if the case involves trade dress) remedies?

#LawProfs #LawFedi


#Remedies friends: What are your favorite teaching cases for copyright & trademark (bonus if it's trade dress) remedies?

#LawProfs #LawFedi


They'll also know more about design patents, period, than most lawyers--including most patent attorneys.

But they never believe me when I tell them that.


I'm revamping my Design Law course and have decided to do a WHOLE WEEK on design patent remedies.

My students will officially know more about § 289 and how it interacts with § 284 than most lawyers.


nostr:npub1vu7uztz0rtxpejd095nl7k78kangchcu58s7cpnt05un5l2n9rsshgnmuv That's my guess, too. And there seems to be a history of "massaging" preferred applications into these key slots.


nostr:npub16pcnkuannwmpwmu9phqvyg93uavdgdmzgy8cfrzvk7swr98udfus6s8j5n 😂


nostr:npub1wnrunntxcsr3x8s3wk4lnqr9j2snm5q8lx3lg9rfdw0da2z4huds630szh IDK on what theory. I can't imagine anyone has a right to a certain patent number. But it's an interesting question.


nostr:npub1e2k9eewff8savfjta0nqr8e9ygwf5usaz6vcq7vukk3urqud3h4qcv0e0p 😂


nostr:npub1wnrunntxcsr3x8s3wk4lnqr9j2snm5q8lx3lg9rfdw0da2z4huds630szh Okay, so the OG is out and, yes, it looks like they swapped the "winning" app for one filed by a Chinese inventor:

https://mastodon.social/@design_law/111132538415415319


D1,000,000, on the other hand, is listed between D999,980 and D999,82:

https://files.mastodon.social/media_attachments/files/111/132/542/082/383/861/original/c085f5186e2a0c9b.jpg


This week's edition of the Electronic Official Gazette for Patents has been posted.

https://patentsgazette.uspto.gov/week39/OG/Designs.html

I noticed that D1,000,000 appears out of order and that the patent numbered D999,981 (for a design for a "cycling glove," issued to a Chinese inventor) is listed between  D999,999 and D1,000,001.

#DesignPatents

https://files.mastodon.social/media_attachments/files/111/132/527/520/345/077/original/98648f66a6d88cb9.jpg


If I just ignore my email inbox, maybe it will go away?


And here it is: A press release from the USPTO on #OneMillionDesignPatents

https://www.uspto.gov/about-us/news-updates/uspto-issues-milestone-1-millionth-design-patent

https://files.mastodon.social/media_attachments/files/111/131/992/081/370/134/original/1566e26ee4bff770.jpg


nostr:npub10kcanyrevwyaafkmcjkh2zcaz8tg9ujc3f4xn74ef5dp5vwptjnqqmqjyy nostr:npub1gm6l8gxh3vuww2m95hqjkkfrwa8m0853245rkhwuvr6tq8uf7x2sv7xupr Yeah but, to be clear, the "other publications" information doesn't impact scope. It just tells us what the examiner looked at.


My phone just corrected "PPubs" to "peeps" that's what it's called now.


Nope, still don't care what Randy Rader has to say about anything.


nostr:npub1gm6l8gxh3vuww2m95hqjkkfrwa8m0853245rkhwuvr6tq8uf7x2sv7xupr 🤷🏻♀


One more observation: This claim is EXTREMELY narrow. I hope the inventor was well-counseled and understands what the patent does (and does not) cover.


The examiner also suggested some clarification to the descriptions of the drawings:

https://files.mastodon.social/media_attachments/files/111/131/484/067/262/360/original/38020674b482a4d5.jpg


Unlike most design patents, this one faced a non-final rejection on its path to issuance.

Like many design patents that do get rejections, this one was based on § 112:

https://files.mastodon.social/media_attachments/files/111/131/477/049/626/116/original/06c7f67908213720.jpg


And who prosecuted this claim? That would be KAUFHOLD DIX PATENT LAW of Sioux Falls, SD:

https://files.mastodon.social/media_attachments/files/111/131/463/079/272/434/original/1db72eea7d051e00.jpg


Workaround: Search by application number.

https://files.mastodon.social/media_attachments/files/111/131/457/722/563/317/original/486d36c390278f21.jpg


And for plants (I know you're curious!) we're up to PP35,405, issued today for " a new cultivar of Salvia x guaranitica named 'Jammin Jazz.'"

CC: nostr:npub1ty3d96a20lvlmzaly5hf9f7sr6hav662qls2umqdrem5t0atwm6s2rqjg3

https://files.mastodon.social/media_attachments/files/111/131/402/011/048/062/original/8a20fadd18a60a3e.jpg

https://files.mastodon.social/media_attachments/files/111/131/410/992/577/247/original/99e2f5a46f051cc6.jpg


By contrast, note that we are (well) over 11M utility patents:

https://files.mastodon.social/media_attachments/files/111/131/397/911/314/292/original/8a506a8cc51b2887.jpg


Time to update this rule of thumb.

#DesignPatents

https://files.mastodon.social/media_attachments/files/111/131/382/640/685/430/original/8c876e2059dfbf36.jpg


We're now up to 1,000,033 design patents.

#DesignPatents

https://files.mastodon.social/media_attachments/files/111/131/360/099/237/387/original/8d97370c8a6990f5.jpg


We're now up to 1,000,033 design patents:

https://files.mastodon.social/media_attachments/files/111/131/360/099/237/387/original/8d97370c8a6990f5.jpg


nostr:npub1wnrunntxcsr3x8s3wk4lnqr9j2snm5q8lx3lg9rfdw0da2z4huds630szh Yes, I've seen some evidence of the Office massaging things a bit w/r/t milestone numbers. I'm not entirely sure that hasn't happened here; picking (what appears to be) a Black female entrepreneur would be very much in line with what I've seen from the Office recently. On the other hand, I've seen no publicity around this so 🤷🏻♀


nostr:npub1lvu7tg5s64xvxnlvh5mjh5w6kjltcr0e6g2snu53a65tze8mf7ws463ua2 I mean, I suspect that's not the intended purpose. But I am concerned about the narrowness of claim; I hope the assignee was well advised and understands what she does (and does not) have


nostr:npub1d54cgsk8uq8820lur6dqck7nggv9kekczycqh6cv9l42g0vlddes6utpm3 Oh, I remember


nostr:npub1wnrunntxcsr3x8s3wk4lnqr9j2snm5q8lx3lg9rfdw0da2z4huds630szh Yes, I've seen some evidence of the Office massaging things a bit w/r/t milestone numbers. I'm not entirely sure that hasn't happened here; picking a Black female entrepreneur would be very much in line with what I've seen from this Director and senior patent leadership. On the other hand, I've seen no publicity around this so 🤷🏻♀


Tried to pull up D1,000,000 on Patent Center and the system has apparently not been updated to accommodate the extra digit:

https://files.mastodon.social/media_attachments/files/111/131/311/720/988/094/original/09c796b7729e8b20.jpg


Has anyone heard a peep from the #USPTO about this milestone? I have not.

#PatentFedi


And here it is: D1,000,000, issued today to Agustina Huckaby of Fort Worth for a design for a "dispensing comb."

According to LinkedIn, Huckaby is an entrepeneur and the owner of
https://pompandpowder.online/

#DesignPatents #OneMillionDesignPatents

https://files.mastodon.social/media_attachments/files/111/131/288/641/917/717/original/88e94c9bd75a19f1.jpg


Update, 7:30 a.m. - No Official Gazette yet (the quickest way to see the numbers); started downloading the bulk data file.


Will tomorrow be the big day? We'll soon find out! #OneMillionDesignPatents


It's the first day of our unit on Novelty in Patent Law.

I just found this cool map to help show where Nicholson (seems to have) tested his pavement.

Map source: https://bostongeology.com/boston/casestudies/fillingbackbay/images/large/anninandsmith1826.png

https://files.mastodon.social/media_attachments/files/111/127/437/565/618/302/original/985928a3d879b388.png


nostr:npub1grzww4x4hdt24n0y5703h7yg9u8c8ctatkrs6fvhshwqfac7w8vq6q2pmw 🤔


AI and the Law of the Horse


Sarah Burstein

Art major turned law professor. Teaching #Patents, #DesignLaw & #CivPro at #SuffolkLaw.

Researching & writing about #DesignPatents. Currently thinking a lot about the #ScheduleA phenomenon.

Trying to make #PatentFedi happen.

Coauthor of Patent Law: An Open-Access Casebook https://patentlawcasebook.com/

When I'm not thinking about law, I'm usually studying languages (#español, #français & #svenska), reading novels, or watching Netflix.

#tfr


nostr:npub1dh3yqkjrapc8eakjl8nltzdfag23ja6anuenwny7gmv8mq8jc46q8zrgvh Thanks, I hate it


Got my vax! 😄


nostr:npub10s6qezzafpfnt05lvnz8v4t856zpujzjcnj8dcuhvyqlv2exkqps0xtwhx Yes, 100% agree


nostr:npub1a8ga8g47g07x5q2z4planxak79e555s3zfg77a7v97vuc37att9qpa60k6 Good for you


#bloomscrolling

https://files.mastodon.social/media_attachments/files/111/076/340/809/097/874/original/c2386a683a676c78.jpeg


So OF COURSE #ColumbiaVersusSeirus drops when I'm out of pocket. Guess you all will have to wait for next week for my hot takes! 😆


"You can’t change shit if you constantly run head first at windmills that will never be dragons. Wait for the actual fucking dragons." - nostr:npub1a9pmdt88eqw2f30u2g8uvame4x90zp93eyppjcjlhjyd0sszsf3q2he4xe

https://miryaholman.substack.com/p/mind-your-own-business


As for the alleged trade dress, it's unregistered and the plaintiff may or may not have a viable argument for secondary meaning.

But regardless of the merits, it's hard to get rid of a trade dress claim early in a case.

Yet another reason we should #AbolishTradeDress


Here, I don't think the fact that the name is raised should affect the "slap a trademark on it" analysis. It's still a surface design. And again, this is not the only visual difference. This just caught my attention as we continue #WaitingForColumbia.


The plaintiff does raise one interesting issue, though.

To be clear: It's not enough to save its infringement claim, which should fail as a matter of law.

But if it were true that the "Defendant has merely added their name to the bottom surface" of the product, and the products otherwise looked the same, that would bring us into the area currently being disputed in #ColumbiaVersusSeirus (Round II).

For a discussion of Round I, see: https://patentlyo.com/patent/2020/02/columbia-v-seirus-the-sky-is-not-falling.html

https://files.mastodon.social/media_attachments/files/111/068/954/170/496/169/original/65df23f41bd0e2cf.jpg


There is no separate DOE in design patents. There is only Egyptian Goddess.


And again, we don't break up designs into elements then look for "equivalents":

https://files.mastodon.social/media_attachments/files/111/068/947/193/772/662/original/c76bf9fa08f4efe2.jpg


The plaintiff also seems to be confused about how functionality factors into claim construction. It doesn't, as they suggest here, mean you can ignore visual features. It means that someone doesn't infringe just because the functionality is the same.

See https://patentlyo.com/patent/2016/04/construction-federal-circuit.html

https://files.mastodon.social/media_attachments/files/111/068/940/401/581/908/original/8f6a1f196087dd24.jpg


In fairness, the defendant also seems confused on that last point:

https://files.mastodon.social/media_attachments/files/111/068/935/543/959/227/original/aa46594c62c14eee.jpg


Beyond the pictures, the plaintiff seems to be fundamentally confused about how design patent infringement works, attempting to chop up the design into "elements" and invoking the doctrine of equivalents (which doesn't apply to design patents):

https://files.mastodon.social/media_attachments/files/111/068/928/670/445/691/original/8b984051c6e6abdd.jpg

https://files.mastodon.social/media_attachments/files/111/068/932/611/519/748/original/612fff32bb886b3c.jpg


But in the defendant's response to an earlier cease-and-desist letter (which is attached to the complaint), the defendant makes a compelling case for noninfringement.

This mocked-up image of the bottom views is particularly effective in showing how different the shapes are:

https://files.mastodon.social/media_attachments/files/111/068/923/909/939/468/original/c24bb1cd95de4ebd.jpg


For example, the plaintiff tries to make the accused product look more similar by only including certain views in the complaint, e.g.,

https://files.mastodon.social/media_attachments/files/111/068/920/166/413/341/original/28a1df202493b666.jpg


This case has some interesting examples of #VisualAdvocacy.


Flocast v. Movi - New design patent & trade dress case over diaper changing pads: https://design-law.tumblr.com/post/728526486194307072/does-this-diaper-changing-pad-infringe-this-design

#DesignPatents #TradeDress

https://files.mastodon.social/media_attachments/files/111/068/912/892/228/320/original/ab474721ebbd6f96.jpg


D207,842 - issued in 1967 for a design for a "prayer rail." #DesignPatents

https://files.mastodon.social/media_attachments/files/111/068/839/404/316/105/original/a94ca8ae7b0417c2.jpg


Relatedly, if you're a newer law prof (define that however you will), what kind of formal mentorship do you appreciate having or wish you had?


nostr:npub1kk5synd8ht0sn7eagg9gudz2cxtvcr06pt8v72qxd4u78pa5jtqszee0ds Thanks! Appreciate the input


Fellow #LawProfs Does your school have a formal mentorship program for pre-tenure colleagues? If so, how does it work? How are mentors assigned, what do they do, how well does it seem to work? Any thoughts or input appreciated--thanks in advance!


nostr:npub1zp4t3de7recl0tf732eh5q68p9svk0hl9eyu2gte070za7l20hsq78yw42 Thanks! (And yikes)


nostr:npub1ujfjsclfenrfh8uywfk70dp7z690407rheqddj8rmtx4dsq4cjlsjmaw8v Exactly! I don't know exactly why some of these judges seem to be so credulous in these cases. Or if they've just been worn down over time.

But I do suspect that the counterfeit rhetoric we see in a lot of these cases is at least playing a role:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909


nostr:npub1ujfjsclfenrfh8uywfk70dp7z690407rheqddj8rmtx4dsq4cjlsjmaw8v Well, sometimes, these Schedule A plaintiffs argue they have to keep the exact marks/patents secret so as not to tip off nefarious "foreign counterfeiters," who they allege are tracking U.S. PACER dockets. But here, we know the plaintiff's name, product, and patent numbers. So I have no idea what the alleged justification for keeping any copyright or trademark registrations secret might be.


nostr:npub1ujfjsclfenrfh8uywfk70dp7z690407rheqddj8rmtx4dsq4cjlsjmaw8v nostr:npub16pcnkuannwmpwmu9phqvyg93uavdgdmzgy8cfrzvk7swr98udfus6s8j5n I have no inside info but I'm guessing that Davis hired Jones--and this complaint was in-process--before Judge Jenkins' decision came out.

Also, Judge Jenkins expressly refused to decide whether Jones, his old firm (which appears to no longer exist), or both were responsible for the misconduct.

In that situation does Jones have any obligation to make Davis aware of the #Xped decision? Maybe nostr:npub1lc802fgj4mwqhvps26hdqzmrwdkwam27y9xa4q4tfjlwsm6wnqjsndppkv has thoughts?

https://files.mastodon.social/media_attachments/files/111/063/740/098/817/778/original/6be7fe2803e482b4.jpg


One note: This complaint is a little unusual (though not unprecedented) in taking this kind of "kitchen sink" approach to a #ScheduleA case. But given the track record of these lawyers and what I can see from the complaint, I would not assume that any or all of these infringement claims are particularly strong. But I guess we'll see.


The ROP claim could maybe potentially be interesting but I'm not an expert in this area. (CC: nostr:npub1zp4t3de7recl0tf732eh5q68p9svk0hl9eyu2gte070za7l20hsq78yw42)

https://files.mastodon.social/media_attachments/files/111/063/684/077/815/041/original/3107b6383f3b1e18.jpg


For those who don't know, the statutory phrase is "fixed in a tangible medium of EXPRESSION."


On its face, the complaint is similarly vague about what work(s), exactly, are alleged to be infringed.

And the "tangible medium
of production" part doesn't exactly inspire confidence about the merits.

https://files.mastodon.social/media_attachments/files/111/063/674/955/006/477/original/c18680713d22c64f.jpg


Is there actually some underlying trademark registration here (which would be necessary to state a claim for counterfeiting) or what is going on?


For example, what does this count mean when "the Marks" is defined in this way?

https://files.mastodon.social/media_attachments/files/111/063/664/847/686/061/original/47678d5641c7684c.jpg


This part is also weird: The plaintiff refers to the asserted "trademarks, copyrights, and patents" collectively as "the Marks."

I'm not sure if this is meant to be intentionally confusing but it does make some of the allegations rather opaque.

https://files.mastodon.social/media_attachments/files/111/063/651/374/805/506/original/6d3eaafa99e963bd.jpg


If you can share the patent numbers, why not the trademark and copyright registration numbers? This is weird and makes me suspicious.


The complaint also alleges trademark counterfeiting and copyright infringement but, for some reason, hasn't included the registration numbers for any copyright or trademark registrations (though it does suggest that any that exist will be filed under seal).

https://files.mastodon.social/media_attachments/files/111/063/646/520/714/597/original/0144ce5055ae8ec0.jpg


Note also that the content of the purported "reviews" here are hearsay. And presumably, the plaintiff has not authenticated any such reviews in any case.


Design patent infringement is a test of visual similarity NOT consumer confusion.


This allegation also suggests that plaintiff's counsel might not understand how design patent infringement works:

https://files.mastodon.social/media_attachments/files/111/063/632/975/149/940/original/4c11e70857059110.jpg


The patent count is weird because they mention a utility patent and a design patent (as well as an EU RCD) and suggest they're alleging infringement of both patents but only refer to the test for design patent infringement:

https://files.mastodon.social/media_attachments/files/111/063/629/749/470/975/original/b573677309e11958.jpg


Remember the #Xped case from law week, where the court found "that [the plaintiff, its counsel, or both engaged in bad-faith conduct and committed fraud on the Court"?

Well, the lawyers form that case (who joined a new law firm in January) have filed another #ScheduleA case alleging, inter alia, design patent infringement:  https://storage.courtlistener.com/recap/gov.uscourts.ilnd.442359/gov.uscourts.ilnd.442359.1.0.pdf

(h/t nostr:npub16pcnkuannwmpwmu9phqvyg93uavdgdmzgy8cfrzvk7swr98udfus6s8j5n

#DesignPatents

https://files.mastodon.social/media_attachments/files/111/063/616/543/935/346/original/8a1c8c4e998f3b8f.jpg


nostr:npub16pcnkuannwmpwmu9phqvyg93uavdgdmzgy8cfrzvk7swr98udfus6s8j5n Oh, and look who filed it:

https://files.mastodon.social/media_attachments/files/111/063/526/443/113/992/original/1a8e7e001a99321d.jpg


nostr:npub16pcnkuannwmpwmu9phqvyg93uavdgdmzgy8cfrzvk7swr98udfus6s8j5n Patent may be okay but I would....not assume the infringement claims are great:

https://files.mastodon.social/media_attachments/files/111/063/521/548/043/260/original/1168021af957e5a3.jpg


nostr:npub16pcnkuannwmpwmu9phqvyg93uavdgdmzgy8cfrzvk7swr98udfus6s8j5n 🍿🍿🍿


nostr:npub1mseadamgd467clgwq2a6y6pkvfxk4kn48llydvnvkm7hsyd3lc5sf43vec Is right now good? I've got a few minutes before class


Shorter Casio: We have no evidence about profits for most of these defendants. So just give us $100k.

https://files.mastodon.social/media_attachments/files/111/057/957/013/837/099/original/e60c223424a85a20.jpg


CC: nostr:npub1mseadamgd467clgwq2a6y6pkvfxk4kn48llydvnvkm7hsyd3lc5sf43vec


Casio aruges: "Consumers who mistakenly believe that the Counterfeit CASIO Products they have purchased originated from CASIO will come to  believe that CASIO offers low-quality products."

That's a trademark theory of harm.

Casio has not alleged trademark infringement.

Also, the patent EXPIRED before this case was filed.


Okay, so remember the #CasioVersusScheduleA? That's the one where the #BlueSphere attorneys sought--and obtained--ex parte injunctions against infringing....an expired design patent:

https://mastodon.social/@design_law/110468674736116887

Well, the judge was unimpressed with Casio's first set of arguments about default judgment damages.

So Casio has filed a supplemental brief, which is full of #CounterfeitRhetoric and based on trademark-type harms (there is no trademark infringement alleged here):

https://storage.courtlistener.com/recap/gov.uscourts.ilnd.430290/gov.uscourts.ilnd.430290.64.0.pdf

https://files.mastodon.social/media_attachments/files/111/057/945/777/053/644/original/8bc32c13978a0c7a.jpg


nostr:npub1ujfjsclfenrfh8uywfk70dp7z690407rheqddj8rmtx4dsq4cjlsjmaw8v Oh, no. I'm so sorry


I did notice that the USPTO is not doing any big publicity blitz for this like it did for "Ten Million (Utility) Patents"


I did notice that the USPTO is not doing any big publicity blitz for this like it did for TenMillion(Utility)Patents


Okay, friends, as of today we're up to 998,930 issued #DesignPatents.

Only 1070 to go until #OneMillionDesignPatents!

At the rate things have been going, I'm guessing we'll see D1,000,000 on 9/26. Maybe 10/3 if the next two weeks are on the low side.

Get excited!!


But blocking itself can be fraught. It's inherently confrontational (since the blocker knows or can find out they've been blocked).


Note: I finally blocked this guy after he accused me of lying for...accurately summarizing the facts of a real case.


In good news: It's Juicy Whip v. Orange Bang day


Mood

https://files.mastodon.social/media_attachments/files/111/046/736/709/552/370/original/50b332e2a390ce73.jpg


Once upon a time, I worked in a deeply toxic workplace. There were people who were utterly horrible to me, including the person I (at one point) thought was my best work friend. This person stabbed me in the back in a way that made a bad situation exponentially worse.

I never confronted them about it because I was so shocked that I couldn't even process it (and may have been in denial about it).

Anyway, I just saw that they've followed me on Bluesky.

Correction: No, I didn't.


D125,659 - issued in 1940 for a design for a "mannikin." #DesignPatents

https://files.mastodon.social/media_attachments/files/111/046/736/709/552/370/original/50b332e2a390ce73.jpg


nostr:npub1udc0u66a5ws7fa6d46p4fry5sqgyd2ek2z7jd5vsc2t2fjf22hlsparfu2 Again, if you want to criticize people online, that's your choice. But this post is about trying to help people understood how such criticism will be received.


nostr:npub1udc0u66a5ws7fa6d46p4fry5sqgyd2ek2z7jd5vsc2t2fjf22hlsparfu2 As to your last point, I don't agree with the equation of publicly criticizing people (and I take it from your post, you'd include criticizing strangers) as a form of "constructive feedback"


nostr:npub1udc0u66a5ws7fa6d46p4fry5sqgyd2ek2z7jd5vsc2t2fjf22hlsparfu2 Well, there's a lot in here and I'm not sure if you're interested in honest responses or throwing flame. But I'll assume the former for now. As to your first question, perhaps you might entertain the possibility that your experience on the Internet might be different from the average woman's. (I'm assuming you're not a woman from the context of your comments.)


nostr:npub1p4pzx0ceprkk5kdakee4fgcx046ht94lxt4d7u2m4e7srevefths6zmesd nostr:npub1g634v2f7p9m7kp3fzj47lx59d9cfazy0f6593e08e9h26l3x05fqdytert I was talking about situations where guys criticize a woman's knowing choice to respond with "just ignore them."

I can see how it might be helpful if someone--especially someone who knows you--goes beyond that and gives you helpful information (e.g., "that guy is a troll"), because they know you might not realize it.


nostr:npub1p4pzx0ceprkk5kdakee4fgcx046ht94lxt4d7u2m4e7srevefths6zmesd nostr:npub1g634v2f7p9m7kp3fzj47lx59d9cfazy0f6593e08e9h26l3x05fqdytert Thank you for sharing this perspective. If I'm understanding your comments correctly, though, it sounds like maybe we're contemplating different scenarios here, not just different wording.


nostr:npub15vlcftmraltqplscsns2gdyxwnerkccd3jd2wxhqxgwytjpjjmesk5neuz Wow. I'm really struggling to see how this could be viewed as plausibly confusing.

https://files.mastodon.social/media_attachments/files/111/046/537/794/821/105/original/11412158987521cd.jpg


nostr:npub1lc802fgj4mwqhvps26hdqzmrwdkwam27y9xa4q4tfjlwsm6wnqjsndppkv I just....how can you think you'll actually get away with something like this? That no one will figure it out?


nostr:npub1xmc5e9dql7sya97g404vkf8m7rxlsnnd7rlsg2l82q2kdknnurzquqpjd8 In general, though, I don't think you can go wrong with liking/favoriting a woman's response, if she does choose to respond to a troll. You're showing support to her and letting the troll know she's not alone


nostr:npub1xmc5e9dql7sya97g404vkf8m7rxlsnnd7rlsg2l82q2kdknnurzquqpjd8 To give one very specific example: On Twitter, there were a number of people who liked to incorrect me on various points of design patent law. I had no trouble putting them in their places but definitely didn't mind when other people who knew the area jumped in to say "yeah, dude, you're wrong here." I think there was value in them seeing that they were making fools of themselves in public.


nostr:npub1xmc5e9dql7sya97g404vkf8m7rxlsnnd7rlsg2l82q2kdknnurzquqpjd8 My two cents (with the caveat that other people's views might vary): I think it depends a lot on the situation, your relationship with the OP, and what kind of trolling is going on. For example, if it appear to be pure attention-seeking, I generally favor not giving it to them. If it's attacking a woman's credibility in an area where you know she's right, stepping in likely would be more productive and helpful.


nostr:npub1xmc5e9dql7sya97g404vkf8m7rxlsnnd7rlsg2l82q2kdknnurzquqpjd8 That's a good question and I'm not sure there's a single answer, so I'm going to boost to see if we can get some other perspectives


nostr:npub14axjdqwwqqqhy69mqsgp3sewcry6na2ld6thz2hee6v6gpl8jq9q3mk9ag Yes, exactly.


nostr:npub1er72gxt48h29c387mz6u8lyvysrym6xg5tahknty8rrfrdz2g5uqhzyaup Yes, thank you. That's a great example of a situation in which responding is perfectly rational and can be productive.


nostr:npub1hrj2028dawlu4qtmuwe9q0fg3eer6ltdxs2l4n6ys475egs88vrsg56p8k Great post. I saw that this firm filed another TM Schedule A case on behalf of the same client. I can't help but wonder how many of those claims were frivolous, too.


nostr:npub1hrj2028dawlu4qtmuwe9q0fg3eer6ltdxs2l4n6ys475egs88vrsg56p8k Great post. I saw that this firm filed another TM Schedule A case. I can't help but wonder how many of those claims were frivolous, also.


.nostr:npub1hrj2028dawlu4qtmuwe9q0fg3eer6ltdxs2l4n6ys475egs88vrsg56p8k on the #XPed decision:

"The court could have punished the plaintiff and Jones even more. . . . Also, the court doesn’t mention referring Jones to the Illinois state bar. I think such referrals should be routine every time a court determines that a lawyer committed fraud on the court."

https://blog.ericgoldman.org/archives/2023/09/schedule-a-sad-scheme-plaintiff-sanctioned-for-fraud-on-the-court-xped-v-respect-the-look.htm

#ScheduleA #Trademarks #LawFedi


D505,832 - issued in 2005 for a design for a "combined coconut-shaped drink container and coin bank." I uh, hope they're not suggesting using this for both purposes at the same time....

#DesignPatents

https://files.mastodon.social/media_attachments/files/111/041/331/391/673/636/original/28ef1c6bdd238018.jpg


This thread brought to you by seeing someone (who I assume was well-meaning but misguided) doing this to someone else.


If your goal is to criticize, I guess that's your choice. But know that's what this is and how it will be perceived, and that doing so might get you muted--if not blocked.


PSA: If you see a woman respond to a troll, it is never--ever--helpful to respond to her with something along the lines of "just ignore them."

She's probably ignoring 100 (or more) for every 1 she chooses to respond to. She knows that the path of least resistance is to ignore the troll & move on. She doesn't need you to inform her of that option.

A response is a conscious decision. You are *not* helping when you criticize (because that's what this is) that decision.


nostr:npub14wvs0epg34lv8d8vccxlfxj94necjh0hvwxaeq290vdggp36xreqfw74wz Yeah. I think a lot of people also forget that, if they're not paying Elon, their posts get downgraded so having, say, 5k followers now isn't the same as having 5k followers a year ago


I've said it before: I recognize that I have a lot of privilege here. I am a full professor with tenure and have already established myself as the expert in my field. That place needs people like me more than I need it. I can take some time to try to be one of the ones who helps to build alternatives. I understand that not everyone is.


But of course, nothing else will "pick up" if no one is brave enough to make a leap.


People are literally telling me they don't want to be there but feel like they "need to" be (note: not for income or similar reasons) because others are still there. They say their waiting for [whatever alternative we're discussing] to "pick up."


Well, one thing I'll say for Elon's Twitter: It's a dramatic, contemporary example of a collective action problem.


nostr:npub17a93lvl79m9crvwkkcglmgwqghdxzmkrllvyma7jdhl32k0th3fq4lmv9a Ooh, that sounds fantastic


I feel like nostr:npub1hvzjvzfmclu5l5zk65fxye5cgt7e0qvs6rcn60z72v9hy79mmpzq4qmle9 might enjoy this one


D947,068 - issued last year for a design for a "set of vases." #DesignPatents

https://files.mastodon.social/media_attachments/files/111/031/715/025/439/914/original/d0751d478b4fb8f4.jpg


I'll go first. I'm excited to finally have the chance to read nostr:npub1mww8j7zpv7p2flja23d8t66mq2vw24aluvhcdczcd409pxfr59zsnf6s2s's new book. Watching and listening TBD.


Happy weekend, friends! What are we reading, listening to, or watching for fun?


"[T]hese Wright edits are coming from Arlington, Virginia. In fact, the Wikipedia editor was less than half a mile from ASS Law."

 https://abovethelaw.com/2023/09/joshua-wright-sexual-misconduct-wikipedia-edits/

Disgusting behavior in the legal profession, Wikipedia twist


nostr:npub163f7ggag7ep4kf0y0wvtk5fhgernfwtt2rhhkpu2qt0cts3hla0qvj6m66 I haven't read the report but, yeah, just saying "my doctor friend says she's fine" doesn't really address all of the issues that have been raised in the investigation.

This whole thing just makes me so, so sad. Whatever you think of her decisions, I don't think anyone can fairly deny that she's had a remarkable career and been a real trailblazer in our profession. Seeing it all come to this is just heartbreaking, IMHO.


Even if someone, like, put them out in an unmarked bowl somewhere, these still don't look that similar. And apparently, they don't taste the same (sour versus sweet). So who would be confused?


Functionality aside, though, does anyone seriously think there is a real likelihood of confusion here?

The normal arguments about post-sale confusion (which I'll confess I don't find particularly compelling in general) don't seem to apply with much force, if at all, to bagged candies like these.

Complaint: https://www.scribd.com/document/669968459/PIM-v-Haribo-Complaint

#Trademarks #TradeDress

https://files.mastodon.social/media_attachments/files/111/030/092/347/029/849/original/0f863bba2f9860ce.jpg

https://files.mastodon.social/media_attachments/files/111/030/092/770/767/853/original/b2d357ce0306adee.jpg


Third Circuit:

"Some candy companies evoke [a slice of watermelon] by using colors alone, making their candies red, white, and green. But the watermelon effect is significantly stronger if the red-white-and-green candy is shaped like a wedge. Because the tricolored shape is recognizable as watermelon flavored, the whole appearance is useful. So a candy-maker cannot block competitors from using the combined shape and colors...."

https://www.scribd.com/document/669963154/Pim-v-Haribo-Decision-3d-Circuit

#TradeDress #Functionality #LawFedi

https://files.mastodon.social/media_attachments/files/111/030/006/439/783/958/original/289df7d106f4d767.jpg


Third Circuit:

"Some candy companies evoke [a slice of watermelon] by using colors alone, making their candies red, white, and green. But the watermelon effect is significantly stronger if the red-white-and-green candy is shaped like a wedge. Because the tricolored shape is recognizable as watermelon flavored, the whole appearance is useful. So a candy--maker cannot block competitors from using the combined shape and colors...."

https://www.scribd.com/document/669963154/Pim-v-Haribo-Decision-3d-Circuit

#TradeDress #Functionality #LawFedi

https://files.mastodon.social/media_attachments/files/111/030/006/439/783/958/original/289df7d106f4d767.jpg


Third Circuit:

"Some candy companies evoke [a slice of watermelon] by using colors alone, making their candies red, white, and green. But the watermelon effect is significantly stronger if the red-white-and-green candy is shaped like a wedge. Because the tricolored shape is recognizable as watermelon flavored, the whole appearance is useful. So a candy--maker cannot block competitors from using the combined shape and colors...."

https://www.scribd.com/document/669963154/Pim-v-Haribo-Decision-3d-Circuit

#TradeDress #Functionality #LawFedi


Another doctor engaged by Judge Newman's counsel says she's fit to serve:
https://www.law360.com/ip/articles/1718953?nl_pk=fd062d42-234e-4b6a-b9b5-4052fd7ef7ac

"Gregory Dolin of the New Civil Liberties Alliance, an attorney for Judge Newman ... said in the interview that he and Carney were classmates in medical school at Stony Brook University."

#PatentFedi #JudgeNewman


nostr:npub15lp4l7uxppczsrecz348lxzjfjwhtr9vwp6qf32faethgv7wu4fqmhdyul Ugh, what? That's ridiculous.


nostr:npub1qp5wjgm5zprqjr3pk0xpaajx2dzvhefkug4w6k5fzq3gkdnzht7s9qcls9 Sorry. And fwiw, it took me the better part of the year to get to this point over here. (I don't remember how long it took on Twitter.)


D856,842 - issued in 2019 for a design for a "flame fire suppressant ball." #DesignPatents

https://files.mastodon.social/media_attachments/files/111/026/079/679/335/762/original/0625bc0c81dcfb9c.jpg


On the bright side, LKQ has made it a lot easier to decide what cases to include in my § 103 unit.

#DesignPatents #DesignLaw #Teaching #LawProfs #LawFedi

https://files.mastodon.social/media_attachments/files/111/025/937/908/691/565/original/0f4114807ee66712.jpg


nostr:npub14wp9yhu3pnfyz9sd5s9u40j3u5p06p4wrkwndlrurlpa9r3eqf2qhacl6q nostr:npub1grzww4x4hdt24n0y5703h7yg9u8c8ctatkrs6fvhshwqfac7w8vq6q2pmw A cautionary tale against dabbling in IP, to be sure.

https://files.mastodon.social/media_attachments/files/111/025/750/064/752/999/original/b5b3d68246c1e9ae.jpg


nostr:npub1j9pj6zkcwys334vk5ap6y24w4l6qcjzckh0kn9ygvw76g42g3j3qfk6kez No, hadn't seen that. Will check it out.


nostr:npub1xus7m8skpd97l4exww7fuavff8nqnx3ymaxntfdaaf5kkglp3z7qhy550h !!


nostr:npub13vj2zrsaas2gcngctp6766vlnfaxhaun6pzh7v5xnnl4ka48k9ss7a9alu nostr:npub1grzww4x4hdt24n0y5703h7yg9u8c8ctatkrs6fvhshwqfac7w8vq6q2pmw  😂


nostr:npub1grzww4x4hdt24n0y5703h7yg9u8c8ctatkrs6fvhshwqfac7w8vq6q2pmw Wait, what? 🤦🏻♀


nostr:npub1swyxvkhew2qcjpgmsf7c4salsxsedx4veavatjd5yzhxhmtk58aq54snpj Thank you for saying that! And I'd love to hear more about your parody site if you're ever interested in sharing


Eventually, if you post enough about your nerdy obsessions, people will start pinging you with news and developments in that area, and I (completely unironically) think that's beautiful


Found it. Another #ScheduleA case in NDIL, No. 1:21-cv-06440


Found it. Another #ScheduleA case in NDIL, No.
1:21-cv-06440


Also, TWO of these cases?!?


Think he'll change this part of his bio?

https://files.mastodon.social/media_attachments/files/111/024/689/126/266/091/original/a36b4b5c53e2a704.jpg


Okay, so obviously I had to look up the attorney from the #XPed case.

https://files.mastodon.social/media_attachments/files/111/024/685/050/127/056/original/3f2d886923f64527.jpg


I am delighted to see that this decision ended up on Westlaw, 2023 WL 5748350, and Lexis, 2023 U.S. Dist. LEXIS 157275.

This case needs to be found, read, and cited broadly.


Me, about 10 pages into this decision: Ooh, maybe I should add this to my Rule 11 unit.

Me, at the end of this decision: Nope, nope, nevermind! That is way too much pain to inflict on 1Ls.

https://mastodon.social/@design_law/111024034254743916


Me, about 10 pages into this decision: Ooh, maybe I should add this to my Rule 11 unit.

Me, at the end of this decision: Nope, nope, nevermind!

https://mastodon.social/@design_law/111024034254743916


nostr:npub1khx67x36rsu5y2f3ruuq8crnxndmep88399l2phu50etnfcrkr6q6hgeyg Yay! I was similarly indoctrinated but gave up straightening when I moved to Oklahoma for my first teaching job (WAY too difficult in that heat and humidity). Twelve years later, no regrets.


nostr:npub1cqwfpu4znm2al0jksr5ah40vqcmdgf9gsvjh269k3pfdjrlllkks2jqsc0 nostr:npub14wm95mv2m7r53w8qjtzvnsupdpxgt59zuzza5gj9p6levkjd48ts9fnnx9 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.


nostr:npub14wm95mv2m7r53w8qjtzvnsupdpxgt59zuzza5gj9p6levkjd48ts9fnnx9 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)


nostr:npub1ukn3cq2l6d58va53awtzp36aq8dty7w29gv9azl2mk4mustq9erq22kzm4 I mean, that's up to you. But copying isn't per se illegal (or even morally wrong, IMO). And who knows what IP rights, if any, the plaintiff might actually have here. The complaint is pretty light on details about the purported "copyright" and, notably, doesn't mention any copyright registration.


nostr:npub1vrsg4nwganz5jgua230snfgm6u39yvks0pufrpuqexwsaa27hptqtyf8ts I try to tell my own students if I know about interesting trials or motion hearings but, honestly, I find it difficult to keep on top of these things. Would love any tips or advice you might have.


nostr:npub1vrsg4nwganz5jgua230snfgm6u39yvks0pufrpuqexwsaa27hptqtyf8ts This is good advice, but any tips on how students and junior associates can "check to see if any jury trials of interest are happening soon" near them?


"The Court will not give it another opportunity to do what it should have done from the outset: bring factually and legally sound claims."

https://files.mastodon.social/media_attachments/files/111/024/265/909/736/750/original/6c147b704b654c7c.jpg


This judge gets it:

https://files.mastodon.social/media_attachments/files/111/024/258/887/501/987/original/bd748f594f77f699.jpg


Fraud on the court:

https://files.mastodon.social/media_attachments/files/111/024/251/184/559/936/original/ade1dfaac0e02afc.jpg


Tl;dr: The cost of complying with Rule 11 is not an excuse to fail to comply with Rule 11

https://files.mastodon.social/media_attachments/files/111/024/241/259/741/018/original/fb758bb31ec7cec0.jpg


"Jones cannot avoid sanctions through ignorance of this aspect of trademark law; lawyers must research the law before advancing a legal theory in court."

Yes!

Also: This should be a warning to all the lawyers filing design patent cases based on assumptions about what the law is.


To recap, the plaintiff sought a TRO based on claims of trademark infringement. Those claims were (at least against some of the defendants), totally frivolous:

https://files.mastodon.social/media_attachments/files/111/024/228/409/450/198/original/3f2d0d4d3679dbc8.jpg


nostr:npub14wm95mv2m7r53w8qjtzvnsupdpxgt59zuzza5gj9p6levkjd48ts9fnnx9 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


nostr:npub14wm95mv2m7r53w8qjtzvnsupdpxgt59zuzza5gj9p6levkjd48ts9fnnx9 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.


Yes, yes, yes, yes, yes!!

"If a plaintiff seeks extraordinary relief with respect to many defendants, it should expect to put in a corresponding amount of effort."

https://files.mastodon.social/media_attachments/files/111/024/207/168/930/021/original/820248cfcdf5be47.jpg


The pain continues: "No reasonable pre-suit investigation could have led Jones to believe that Respect the Look was a foreign company"

https://files.mastodon.social/media_attachments/files/111/024/199/540/641/678/original/8f6690d45c144c5b.jpg

https://files.mastodon.social/media_attachments/files/111/024/201/388/265/256/original/3b3cb41397e07466.jpg


I'll note that it's my sense that most #ScheduleA plaintiffs in the NDIL actually aren't from (and don't purport to be) from Chicago.

And putting the technical venue questions aside, I do think it's worth having this conversation:

Why should the federal court in Chicago be the IP arbiter for the world?


"[I]f Expeditee had told the truth, the Court might have questioned why a Vietnamese company needed an American court to freeze the assets of Vietnamese Defendants." Why, indeed?

https://files.mastodon.social/media_attachments/files/111/024/175/045/477/201/original/c57c602596492748.jpg


YES! I am so happy a judge wants to have this conversation:

https://files.mastodon.social/media_attachments/files/111/024/175/045/477/201/original/c57c602596492748.jpg


Ah, here we go. An answer to my earlier PPB question:

https://files.mastodon.social/media_attachments/files/111/024/167/151/196/706/original/c99291e52f266e2d.jpg


I won't go into all the details here, but the court's discussion of the Rule 11 safe harbor provision is really interesting.

Tl;dr: It's okay if the defendant didn't technically comply here.

#CivProMatters

https://files.mastodon.social/media_attachments/files/111/024/156/876/191/692/original/5d98eb816831f6cc.jpg


I won't go into all the details here, but the court's discussion of the Rule 11 safe harbor provision is really interesting.

Tl;dr: It's okay if the defendant didn't technically comply here.

#CivProMatters


I won't go into all the details here, but the court's discussion of the Rule 11 safe harbor provision is really interesting.

Tl;dr: It's okay if the defendant didn't technically comply here.