Posts Tagged: "ninth circuit"

Bad Spaniels Make Bad Law: Ninth Circuit Says Dog Toy is an Expressive Work Entitled to First Amendment Protection

The U.S. Court of Appeals for the Ninth Circuit held that a squeaking dog toy resembling a bottle of Jack Daniel’s whiskey is an expressive work entitled to First Amendment protection.  VIP Prods. LLC v. Jack Daniel’s Properties, Inc., No. 18-16012 (9th Cir. Mar. 31, 2020).  The court  reversed a bench trial verdict that the toy infringed and diluted the JACK DANIEL’S trade dress and remanded for further reconsideration by the district court.  Before the district court may find that the toy infringed Jack Daniel’s famous trade dress, the Ninth Circuit held that the district court must first apply the Second Circuit’s Rogers test, which will require it to consider whether VIP’s use of the trade dress was artistically relevant to the toy’s expressive character, and whether VIP’s use of the trade dress explicitly misleads consumers as to the source of the toy.  The Rogerstest, though, has only been applied to expressive works such as books, songs, video games and movies; it has never been applied to consumer products like handbags and perfume, even if those products were intended as parodies.  The Ninth Circuit’s decision expands the scope of First Amendment protection far beyond traditionally expressive works, and risks exposing a wide variety of brand owners to infringements based on alleged parody.

Does ‘Scraping’ Data Violate the Computer Fraud and Abuse Act?

We live in a world where data has become an increasingly valuable asset and huge companies are built on the collection and analysis of publicly available data. Yet, there is no federal statute that directly protects this type of information or even directly addresses how this information should be treated. Instead, businesses are often forced to rely on the Computer Fraud and Abuse Act (CFAA) in order to protect this valuable asset or commodity, which originally only provided criminal sanctions and was enacted to address computer hacking. Most recently, the Ninth Circuit in hiQ Labs, Inc. v. Linkedin Corp., 938 F.3d 985 (9th Cir. 2019), addressed under what circumstances a company may legally “scrape” data from another company’s website. There, the court determined on hiQ’s motion for preliminary injunction that “scraping” publicly available information from LinkedIn likely is not a violation of the CFAA because the LinkedIn computers are publicly accessible and hiQ thus did not access the computers “without authorization” as required by the CFAA. Under these circumstances, the court determined that it did not matter that LinkedIn had sent a cease and desist letter to hiQ prohibiting such access. This is a potentially very important decision for companies on both sides of this issue and for the general public, at least in the Ninth Circuit.

Antitrust Experts Characterize FTC v. Qualcomm Decision as Mangling of Sherman Act’s Section 2

Judge Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit, Professor Joshua Wright, and attorney Lindsey Edwards of Wilson Sonsini Goodrich & Rosati, have condemned the decision in FTC v. Qualcomm Inc. (N.D. Cal. May 21, 2019) in the George Mason University Law & Economics Research Paper Series. In their paper, “Section 2 Mangled: FTC v. Qualcomm on the Duty to Deal, Price Squeezes, and Exclusive Dealing,” the authors characterize the decision as being a part of “the misguided trend of using antitrust law to intervene in contract disputes between sophisticated parties negotiating over intellectual property rights.”

Smells Like Trademark Infringement: Nirvana Sues Over Smiley Face Logo

On December 28, 2018, the limited liability company representing famed Seattle-area grunge rock band Nirvana sued clothing designer Marc Jacobs and fashion retailers Neiman Marcus and Saks Fifth Avenue in the U.S. Federal District Court for the Central District of California. At the center of the lawsuit are copyright and trademark infringement allegations regarding the use of Nirvana’s “smiley face” logo on a line of designer clothing made by Marc Jacobs. Nirvana alleges that Marc Jacobs has used the band’s common law trademarks and infringed the band’s copyright in the smiley face logo in a misleading way in order to make it appear that Marc Jacobs’ “Bootleg Redux Grunge” clothing line is endorsed by or somehow associated with Nirvana. Nirvana first licensed the use of the smiley face logo, designed by deceased Nirvana front man Kurt Cobain in 1992, and it has been continuously used to identify Nirvana’s music and licensed merchandise since.

Iconic Michael Jordan Photograph Not Infringed – Ninth Circuit

The case is interesting, however, not just because it involved famous subjects – a “renowned photographer” (as the Plaintiff was described in the court’s first sentence), a famous brand (Nike) and one its most well-known logos (“Jumpman”), and a photo of one of the most famous people in the world (Michael Jordan) – although these items alone perhaps merit some attention. But for lawyers and those who deal with copyright protection in the business world, perhaps more interesting is the court’s explication of the classic copyright concept of the idea-expression dichotomy, as well as its holding that the photograph at issue, while not infringed, was entitled to broad protection.