November 2011

It is perhaps the first time in memory that chicken and kale were the subject of comparison – as reported in the Associated Press, Chick-fil-A has gone after a Vermont artist and his mark EAT MORE KALE, alleging that there is a likelihood of confusion between this mark and Chick-fil-A’s own mark EAT MORE CHIKEN. Bo Muller-Moore, the artist in question, produces various goods with the phrase EAT MORE KALE printed on them. Muller-Moore states that his mark began as a statement on t-shirts supporting local farmers – kale apparently grows quite well in Vermont. Sale of the shirts took off, so Muller-Moore expanded his “kale” product line to include sweatshirts, bumper stickers and the like.

This isn’t the first time that Muller-Moore and Chick-fil-A have crossed paths. A few years ago, the two engaged in a battle of legal letters that eventually burned itself out. Muller-Moore continued making his products under the assumption that the issue had gone away. (more…)

Like ButtonFacebook settled with the FTC today over its chameleon-like  privacy policy reports Gizmodo, putting the user into the driver’s seat for privacy settings. No more Big-Daddy-Knows-Best privacy changes.  FTC announced that given the long history of Facebook privacy changes and broken promises, it issued an order that Facebook be barred from making misrepresentations about the privacy of user’s personal information and users must opt-in to future privacy changes. Facebook must also prevent access of a user’s materials more than 30 days after his or her account is deleted, address privacy issues in new and existing products and services available on the site, and obtain regular third party audits of its privacy practices to ensure ongoing compliance with the FTC order.

Next week, the Supreme Court will hear oral arguments in the method patent infringement case of Mayo Collaborative Services v. Prometheus Laboratories, Inc. The question presented is as follows:

“Whether 35 U.S.C. § 101 is satisfied by a patent claim that covers observed correlations between blood test results and patient health, so that the claim effectively preempts all uses of the naturally occurring correlations, simply because well-known methods used to administer prescription drugs and test blood may involve ‘transformations’ of body chemistry.” (more…)

Despite all of “The Fame,” even Lady Gaga doesn’t win them all. Recently, Gaga was on the losing end of a domain name dispute regarding the domain “” Gaga had brought a domain name complaint under the Internet Corporation for Assigned Names and Numbers’ (“ICANN”) Uniform Domain Name Dispute Resolution Policy (“UDRP”) against a fan operating the domain Gaga alleged that the domain had been registered and was being used in bad faith, that the fan had no rights or legitimate interests in the domain, and the domain infringed Gaga’s mark LADY GAGA.

The fan countered that she was operating an unofficial, non-commercial fan site about Gaga. The fan explained that the site did not contain any sponsored or otherwise commercial links, and as such, the fan was making a legitimate, non-commercial fair use of the domain name. (more…)

The Mail or Telephone Order Merchandise Rule was established to provide telephone or mail-order customers comfort as to when their merchandise would be shipped. If merchandise cannot be shipped within the time promised, the seller must either secure the customer’s consent to delay shipping or refund the customer’s payment. The FTC had concerns as to the applicability of the Rule to Internet sales, and proposes amending the rule to clarify this point. The Rule changes proposed by the FTC would also (1) allow refund notices and refunds to be provided by any reliable means, (2) clarify seller responsibilities applicable to non-standard payment methods such as gift and debit cards, and (3) establish a time limit for refunds. The FTC is taking public comments through December 14, 2011.

Was A&F's demand that the cast of The Jersey Shore cast ditch its duds Deceptive?

Ah Schadenfreude– are you what makes viewers watch reality shows? Back in September, Abercrombie & Fitch “dissed” Michael “The Situation”  Sorentino in a press release issued offering a “substantial sum” if Sorentino stopped wearing A&F Duds, because “Mr. Sorentino’s association with our brand could cause significant damage to our image.”  This week Sorentino has come back swinging a complaint for tradmark infringement and false adveristing in US District Court for Southern Florida. Was A&F simpy disingenuous humor or down right deception?  Sorentino alleges that the press release’s use of his moniker “was not a part of a bona fide news report” but sought to exploit (more…)

Hey HON, how did a trademark become a Kitchen Nightmare?

There was lots of excitement in Baltimore on Monday when Cafe Hon owner Denise Whiting held a news conference with TV reality show chef/provocateur Gordon Ramsay, in which she announced that she was relinquishing her trademark in the word “Hon”. The news conference was timed to coincide with the filming of an episode of Gordon Ramsay’s reality TV show Kitchen Nightmares, which should be something to see (speculation runs high that it will not be a promotional video for the Cafe Hon). 

Actually, Cafe Hon, Inc. owns numerous trademark registrations: CAFE HON was registered in 1992 for restaurant services. HONFEST was registered in 2007 for community cultural festivals. Presumably those will not be affected by the announcement on Monday. Cafe Hon, Inc. also owns federal trademark registrations for the word HON… (more…)

Starting with the basics, what is a “Flash cookie” you ask?  They are files known as LSOs (local shared objects) installed on your browser by websites that use Adobe Flash. Similar to HTML cookies (hence the Flash cookie name), an LSO stores data such as graphics, usually for user convenience so graphics and video files load more rapidly upon a return visit.  Privacy concerns about Flash cookies have arisen because they store information about the websites you visit and can persist even after you opt-out of behavioral ad tracking or delete HTML cookies.  These persistant consumer tracking mechanisms have lead some commentators to conjure up a vision of the undead… (more…)