Joseph Grasser

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ISPs and Anonymous Users Rejoice: DMCA 512(h) Subpoena Subjected to First Amendment Scrutiny

Last month, in an important ruling for Internet service providers, and anonymous users alike, a new defense is taking shape to subpoenas issued pursuant to the “unmasking” provisions of the Digital Millennium Copyright Act (“DMCA”). Specifically, in In re DMCA § 512(h) Subpoena to Twitter, Inc., N.D. Cal. Case No. 20-mc-80214, district judge Vince Chhabria … Continue Reading

Bombshell Ruling Puts Amendments to Click-Wrap and Terms of Use Agreements in Question

In a potentially industry-changing ruling, Judge Gilliam of the Northern District of California ruled that amendments to click-wrap agreements, like Dropbox’s terms of use, are invalid unless the user had to manifest assent through some act more than continued use of the service: Defendant essentially argues that it contracted for the right to change the … Continue Reading

CBD: Sometimes It Can Be Legal but Still “Unlawful”

In the Agricultural Act of 2014 (“2014 Farm Bill”), Congress exempted “industrial hemp” from the Controlled Substances Act (“CSA”) in certain narrow circumstances. Among other things it authorized institutions of higher education and state agriculture departments to grow hemp under a pilot program if consistent with state law, and defined hemp to include up to … Continue Reading

Cannabis May be Legal in Your State, but That Doesn’t Mean Your “Punny” Name is Okay

Oklahoma is one of a number of states that allows the sale of medical cannabis.  The high consumer demand, combined with relatively low license fees and barriers to entry in the market, has led to reportedly fierce competition among dispensaries. One dispensary, operated by “DOK Corporation,” sought to set itself apart from the competitors by … Continue Reading

Respirator Mask Price Gouging and Trademark Infringement? Not on 3M’s Watch

On April 10, 2020, 3M Co. sued an unauthorized vendor for attempting to sell an NYC agency $45 million worth of 3M-brand respirator masks at 500% of 3M’s list price, or more. Amid the COVID-19 pandemic, as government agencies scramble to procure personal protective equipment (PPE), unscrupulous parties are capitalizing on the crisis through price … Continue Reading

Copyright Defenses When a Copyright Infringement Claim Gets Under Your Skin

On March 26, a federal district court in New York held that the publishers of the popular NBA 2K videogame did not infringe on plaintiff’s tattoo copyrights when the publishers depicted those tattoos on basketball players in NBA 2K. The publishers, 2K Games and Take-Two Interactive Software, were successful in asserting multiple copyright defenses, including … Continue Reading

Christian Louboutin’s Red Sole – Is it Solely a Shape Mark?

On June 22, an advocate general at the Court of Justice of the European Union (“CJEU”) issued an opinion indicating that Christian Louboutin S.A.’s signature red sole might be a protectable trademark — or it might not be — depending on whether the protection of the shape in combination with color would afford the mark … Continue Reading

Supreme Court Resolves Split on Design Copyright Eligibility

On Wednesday, the U.S. Supreme Court issued its ruling in Star Athletica LLC v. Varsity Brands Inc., which, in the Court’s words “resolve[s] widespread disagreement over the proper test” for determining when “the design of a useful article is eligible for copyright protection.”  Slip Op. at 1.  Varsity Brands, a cheerleading uniform manufacturer, filed the … Continue Reading

Pink or Orange: Colors That Are the By-Product of a Functional Improvement to a Product Are Not Entitled to Trade Dress Protection

On January 5, the U.S. District Court, District of Colorado ruled that ceramics company CeramTec GmbH is not entitled to trade dress protection for the pink color of its hip implant components.  C5Med. Werks, LLC v. CeramTec GmbH, D. Colo., No 14-cv-00643-RBJ, 1517 decision highlights the limits of trade dress protection, which only extends to non-functional … Continue Reading

Supreme Court Clarifies Standards Governing the Attorneys’ Fees Awards In Copyright Litigation

This morning, the Supreme Court issued its most recent ruling in Kirtsaeng v. John Wiley & Sons, Inc., unanimously holding that the “objective reasonableness” of an unsuccessful litigant’s position should be accorded “substantial weight” when awarding attorneys’ fees in copyright cases.  The Court, however, also noted that this factor is not dispositive and district courts … Continue Reading

California Supreme Court Finds That The Organic Foods Act Does Not Preempt State Law Consumer Fraud Claims

In Quesada v. Herb Thyme Farms, Inc., a unanimous California Supreme Court held that a California putative consumer class can assert state law claims arising from the purportedly false “organic” labeling of produce.  In so doing, the court reversed a decision stating that such claims are preempted by federal law addressing the use of “organic” … Continue Reading
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