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Faulty Universe and Suggestive Stimuli Doom Admissibility of Consumer Survey Evidence

There are two sure-fire ways to maximize the chances that a consumer survey gets bounced out of federal court: (1) surveying the wrong people; and (2) leading them to a desired “correct” answer. Both of these survey maladies...more

Doc Martens Gives the Boot to Likelihood of Confusion Expert in Trade Dress Dust-Up

We’ve discussed a number of cases lately where flimsy consumer surveys were tossed out as unreliable under Daubert. This latest installment presents a slightly different twist....more

Graham Cracker Caper or Class Action Case? Consumer Survey Evidence May Tell Us

Graham Crackers - the ubiquitous, rectangular-shaped snack crackers with air holes and perforations - occupy a unique niche in American snack food lore. In the 1830s, the Rev. Sylvester Graham, a Presbyterian minister from...more

Flawed Consumer Survey Wipes Out $54 Million Verdict in Trademark Infringement Dispute

In trademark infringement cases, consumer survey evidence can be a powerful tool. It can also badly malfunction, as Black & Decker recently experienced. ...more

Dr. Phil and His Texas-Sized Copyright Victory in the Lone Star State: Is This “EDTX 2.0” After TC Heartland?

And just like that, it was over. The U.S. Supreme Court’s decision in TC Heartland v. Kraft Foods Group sun-setted the reign of the U.S. District Court for the Eastern District of Texas as the country’s busiest (and arguably,...more

Got Registration? You Better if You’re Filing a Copyright Case in the 11th Circuit

Section 411(a) of the Copyright Act provides, in pertinent part, that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright...more

The 9th Circuit Injects Some “Octane” into the Lanham Act Attorneys’ Fee Provision

In the immortal words of the most recent Nobel Laureate in literature, “the times they are a changin.’” Section 35(a) of the Lanham Act provides that “[t]he court in exceptional cases may award reasonable attorney fees to...more

Ninth Circuit Does a Two-Step in “Dancing Baby” Case

While many were focused on “The Big Dance” on March 17, 2016, the 9th Circuit Court of Appeals did some “dancing” of its own. The Court issued a revised opinion in Lenz v. Universal and thereby amended what has been referred...more

Is LeBron James a “Medium of Expression” under the Copyright Act?  We May Soon Find Out.

Many professional athletes these days—particularly those in the National Basketball Association—have their bodies bedecked with all sorts of tattoos. It’s a trend that has steadily caught fire over the last several years...more

Federal Circuit Holds Lanham Act’s Bar on Registering “Disparaging Marks” Violates the First Amendment

The U.S. Court of Appeals for the Federal Circuit has just gone where no other court has gone before. In a tour-de-force judicial opinion, the Court emphatically held that a small sliver of the Lanham Act—the “disparaging...more

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