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f false advertising of kaz heating pads and the court granted the motion in part and denied it in part plaintiffs alleged that the pads contained known defects limiting their utility and creating dangers but that kaz failed to disclose these defects about 5 million units were sold over eight years over half of them in pennsylvania and california california plaintiff beck ellman alleged that she bought a pad in late 2007 that injured her in early 2008 the pennsylvania plaintiffs mahoy alleged that they bought one in 2010 which injured one of them and broke in the process beck ellman alleged violation of the ucl fal clra breach of warranty and unjust enrichment mahoy alleged violation of the pennsylvania unfair trade practices and consumer protection law breach of warranty and unjust enrichment they proposed certifying a california class and a pennsylvania class excluding anyone seeking damages for personal injury or property damage caused by the pads numerosity was no problem kaz argued that differences in heating pads prevented commonality but plaintiffs alleged that the ads for substantially uniform products were deceptive for a common reason differences in size shape number of heat settings and washability of the pads didn t matter if the ads packages all contained the same material omissions which was sufficient to create common issues among the class as for typicality plaintiffs benefited by excluding personal injury claims beck ellman was typical of the class for purposes of the advertising related claims kaz argued again that the pads came in different versions and were bought in different places online and in brick and mortar stores how many stores are actually brick and mortar i wonder but the omissions and the pads were sufficiently similar at this stage alleged differences in the applicability of the statute of limitations also didn t defeat typicality kaz argued that beck ellman was inadequate because she wasn t bringing claims for personal injury or property damage but it couldn t claim she was inadequate for declining to assert a theory that could unravel the putative class any class member seeking recovery for such injury could opt out and sue the court therefore turned to the requirements of rule 23 b 3 which looks at predominance and superiority beck ellman s consumer protection claims satisfied the predominance requirement since they focused on kaz s alleged deceptive conduct across all the products individual reliance didn t defeat predominance because california looks at the reasonable consumer s reaction not the particular consumer s relief is available without individualized proof of deception reliance and injury she d also shown materiality for purposes of class certification and because the omission was on the package it was part of a common advertising scheme to which the entire class was exposed the court likewise found common issues to predominate on her claims for unjust enrichment and breach of the implied warranty of merchantability for similar reasons damages while invariably individualized didn t defeat class action treatment kaz had sales data that could be used to determine damages or restitution and beck ellman sought no unique remedy likewise potential differences in the statute of limitations didn t defeat predominance given an otherwise sufficient nucleus of common questions statute of limitations issues could best be resolved at the merits stage at which kaz would be free to move for summary judgment the court also found superiority given the small individual sums at stake the outcome was different for the pennsylvania class since the court found that pennsylvania consumer protection law requires proof of justifiable reliance and that would apply to each plaintiff without a presumption of reliance from materiality though some cases suggested that pennsylvania sometimes presumes reliance the third circuit has stuck to an individualized proof standard and the court here agreed posted by rebecca tushnet at 3 13 pm no comments email this blogthis share to x share to facebook share to pinterest labels california class actions consumer protection aba journal blawg 100 i m on the aba journal s blawg 100 which is very nice thanks to all you readers correspondents eric goldman is of course returning to the list posted by rebecca tushnet at 3 12 pm no comments email this blogthis share to x share to facebook share to pinterest labels blogging google raters manual interesting document of possible use for defendants in search engine cases google explicitly considers certain searches like ipad ambiguous posted by rebecca tushnet at 2 45 pm no comments email this blogthis share to x share to facebook share to pinterest labels trademark tuesday november 27 2012 how to make a supercut it s about power there are a variety of things one might say about this slate story ranging from the fact that after 14 years it s still the case that to a first approximation no one who makes stuff understands 17 usc 1201 to the question of why supercuts fascinate some people mainly it seems guys while others go for political remix or vidding the creative heart wants what it wants and what it wants is to use what it knows to make something new i certainly recognized the author supercutter s description of what some might call flow these aren t the most compelling three minutes you ll ever experience but they were shockingly fun for me to build time whizzed by as i pieced the whole thing together when i mentioned this to technical consultant friend chris he told me he sometimes stays up all night working on an edit it s just the right balance of puzzle solving technical detail and creative choices to keep your brain endlessly engaged he explained i began to understand why all these folks are scrambling to teach themselves how to use editing software unexpectedly i also got a taste of the supercutting urge i think i now see what drives people to cut even in the absence of monetary reward in the midst of scanning through all those new girl scenes plucking out bits and repurposing them i noticed a new and unfamiliar little jolt of power was coursing through me i had asserted my dominance over this slickly produced piece of media the show was subject to my whims defenseless against my editorial scissors i could have done anything to it talked over it played farting sound effects slapped a photo of my face in the middle of the screen this sense of autonomy is something that would have been extremely difficult to achieve until the relatively recent past before digital formats and easy computer editing programs an amateur like me would have had little hope of reshaping an entire tv series to fit his own vision now anybody with an idea and a laptop can play visual media god i sometimes feel like a magician chris told me when i confessed that my editing experiment was swelling my ego editing is a powerful way to interact with the modern world posted by rebecca tushnet at 10 07 am no comments email this blogthis share to x share to facebook share to pinterest labels copying copyright dmca drm fanworks reading list seo manipulation victor nilsson you re not from around here are you fighting deceptive marketing in the twenty first century 54 arizona law review 801 2012 abstract deceptive marketing has hurt consumers and business owners since the birth of promotional advertising as the internet increasingly inspires and dictates our consumption choices even sophisticated business acumen and technological savvy are not enough to withstand the harmful consequences while lawmakers and courts have fashioned remedies applicable to some misleading practices sly marketers with deep pockets frequently find new ways to trick unsuspecting shoppers and seize market share this note therefore provides a novel interpretation of prior scholarship to recommend a solution to a particularly misleading marketing practice deceptive search engine optimization in order to bolster currently available yet independently inadequate alternatives although some of the problems associated with deceptive search engine optimization have caught the media s eye as of late a much needed solution is heretofore unexplored in law review literature spoiler i doubt eric goldman will like the proposal posted by rebecca tushnet at 9 38 am no comments email this blogthis share to x share to facebook share to pinterest labels advertising false advertising reading list monday november 26 2012 today s trademark question how close is this denim bag to the levi s red tab mark for jeans yes that s a bone behind it photo taken at the national zoo posted by rebecca tushnet at 5 46 pm no comments email this blogthis share to x share to facebook share to pinterest labels dilution trademark brave new world that has such software in it right of publicity violation new porn services encourage people to uploadpictures the services facial recognition technology will allegedly find pornperformers who are lookalikes for the subjects posted by rebecca tushnet at 5 38 pm no comments email this blogthis share to x share to facebook share to pinterest labels right of publicity rtfs not that i d ever put it in those terms to a student but really in copyright you have to read the statute for reasons not worth exploring at this juncture i m reading the briefs in garcia v google the case brought by the actress in the innocence of muslims case where she claims to own the copyright in something her performance as fixed in the film is the best way to say it one of google s arguments is that under the ccnv test she was an employee working within the scope of her employment and her lawyers outraged response is that there was no written agreement making her contribution a work for hire 17 u s c 101 a work made for hire is 1 a work prepared by an employee within the scope of his or her employment or 2 a work specially ordered or commissioned if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire while i express no opinion on the merits of google s analysis of whether garcia was an employee using the multifactor ccnv test garcia s claim would be more credible if garcia s lawyers spent less time being wrong posted by rebecca tushnet at 12 57 pm 1 comment email this blogthis share to x share to facebook share to pinterest labels copyright saturday november 24 2012 kids as less careful consumers this is in the doctrine but it s a terrible lie more credulous consumers yes but when it comes to brand awareness kids are exquisitely sensitive my son received a party favor from this company what did you get i asked him a pezzy thing but not pez he immediately responded who knew there was more than one brand of this thing posted by rebecca tushnet at 5 10 pm no comments email this blogthis share to x share to facebook share to pinterest labels trademark thursday november 22 2012 math and advertising over at the informative all about advertising law blog from venable the authors ask what does a lifetime supply really mean they describe one calculation method that as described seems obviously wrong to me for the gumball com promotion the company took the average life expectancy of a u s citizen subtracted it by 18 the minimum age of entry and multiplied the difference by 365 representing one gumball per day though the us is a low infant mortality nation and the final number doesn t differ much the proper calculation is life expectancy at age 18 which isn t the same as life expectancy at age 0 18 science is the lawyers friend posted by rebecca tushnet at 9 50 am 1 comment email this blogthis share to x share to facebook share to pinterest labels advertising wednesday november 21 2012 reproduction and accuracy the art of reproduction has taken images of famous artworks from across the web and created mosaics to show variations in color as well as framing here s 8 kens and roberts after mapplethorpe s ken moody and robert sherman posted by rebecca tushnet at 7 20 pm no comments email this blogthis share to x share to facebook share to pinterest labels art law copying copyright the hollywood reporter on tm claims against films one of the key sentences nevertheless for a number of technical legal reasons some attorneys say that trademarks now serve as better weapons in court than more traditional copyrights harder to defeat at the early stages of a lawsuit unfortunately the story suggests hollywood is learning the wrong lesson try to interfere with legitimate uses such as uses of public domain works or works whose copyright has been recaptured by the original author using termination of transfer with trademark claims let s hope that part is wrong posted by rebecca tushnet at 2 25 pm no comments email this blogthis share to x share to facebook share to pinterest labels copyright trademark tuesday november 20 2012 self dilution so what happens if the cake you serve made using this coca cola bottle shaped pan is terrible also browsing the coca cola rewards pages suggests that there s no such thing as an unlicenseable product a diet coke scarf a diet coke makeup bag gender is also a big thing you can t get a coke makeup bag but you can get a coke zero apron to go with your chips n dip posted by rebecca tushnet at 3 01 pm 1 comment email this blogthis share to x share to facebook share to pinterest labels dilution trademark monday november 19 2012 pictures or it s not false advertising the ftc as part of its efforts to increase compliance with rules around mortgage ads disclosures has released some mock ads to show what deceptive noncompliant advertising looks like in the past the ftc has also used mock ads to illustrate good and bad disclosures i think this is a helpful way to give concrete guidance going beyond the traditional focus on the words alone posted by rebecca tushnet at 12 42 pm no comments email this blogthis share to x share to facebook share to pinterest labels advertising false advertising ftc original claim as false advertising zobmondo entertainment llc v imagination intern corp 2009 wl 8714439 c d cal this opinion is old but westlaw just coughed it up perhaps because of a related jury finding that zombondo infringed the would you rather mark and was liable for significant damages i m going to write about the older opinion because it addresses an issue near and dear to my heart on these facts in 1998 zobmondo introduced the first board game based on the traditional conversational game known as would you rather imagination later debuted its own board game titled justin david s original would you rather board game zobmondo alleged that original constituted false advertising imagination moved to dismiss based on dastar and the court denied the motion zobmondo pled that original falsely conveys that imagination s game was earliest first in time when it wasn t the claim was not about who was responsible for originating the concept of th...
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