Summaries of Recent Precedential and Informative Appellate Opinions
Owners of Foreign Marks May Sue Under Lanham Act Without Using Marks in the US: Belmora LLC v. Bayer Consumer Care AG, No. 15-1335 (4th Cir. Mar. 23, 2016)
The court first explained that, under the plain language of § 43(a), the Lanham Act does not require a plaintiff to own or to have used a trademark in US commerce as an element of the cause of action for false association or false advertising, in contrast to § 32 of the Lanham Act providing a cause of action for trademark infringement. The court similarly agreed with Bayer that “the district court erred in overturning the TTAB's § 14(3) decision because it 'read a use requirement into the section that is simply not there.'”
The Fourth Circuit further found that Bayer's claims satisfied the Supreme Court's two-prong test for determining whether a party has a cause of action under the Lanham Act, articulated in Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014), under which the party's claim must: (1) fall within the “zone of interests” protected by the statute, and (2) identify injuries proximately caused by violations of the statute.
Dairy Products and Fishing Tackle too Different to Support Trademark Claims: Hugunin v. Land O' Lakes, Inc., No. 15-2815 (7th Cir. Mar. 1, 2016)
Unregistered Trademarks are Covered by Country-of-Origin Marking Requirements Under Tariff Act: JBLU, Inc. v. United States, No. 2015-1509 (Fed. Cir. Mar. 2, 2016)
Football Players' Publicity Rights Preempted by Copyright: Dryer v. National Football League, No. 14-3428 (8th Cir. Feb. 26, 2016)
With respect to its preemption ruling, the court rejected plaintiffs' argument that their past performances in football games constituted “part of their identities” rather than copyright-eligible works: “the Copyright Act specifically includes within its purview fixed recordings of  live performances [of athletic events].” Because a right-of-publicity challenge to the “expressive, non-commercial use of a copyrighted work” would assert rights equivalent to the copyright owner's exclusive rights, such a challenge was held to be preempted. In so holding, the court rejected plaintiffs' contention that the films constituted commercial speech as “advertisements for 'NFL-branded football.'”
With respect to false endorsement, the court held that, because plaintiffs provided no evidence of the films' containing “misleading [or] false statements” regarding the former players' endorsement of, or association with, the NFL, their Lanham Act claim of false endorsement failed as a matter of law (quoting Am. Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387, 393–94 (8th Cir. 2004)).
Canada not an Adequate Alternative Forum: Halo Creative & Design, Ltd. v. Comptoir Des Indes, Inc., No. 2015-1375 (Fed. Cir. Mar. 14, 2016)
No Copyright Claim in Trafficking Case: Doe v. Backpage.com, LLC, No. 15-1724 (1st Cir. Mar. 14, 2016)
Supreme Court Denies Review of Two 9th Circuit Cases
Multi Time Machine, Inc. v. Amazon.com, Inc., No. 15-936 (Feb. 29, 2016)
Towle v. DC Comics, No. 15-943 (Mar. 7, 2016)