But if the expressive content of the mark precludes regulation, on what authority may the government grant Mr.
Tam’s mark is so “indisputably expressive” that it cannot be regulated under the lesser standards applied to commercial speech. Judge Dyk concurs in the result today only because he believes the content of Mr. Judge Reyna's dissent makes a point that I think courts will find very hard to grapple with, whatever the fate of 2(a) or disparagement specifically: Also, the cosmetics company, on theseĪllegations, understood the difference between the two and chose YouCam. Sales reflected economic injury, which could be remedied by money damages. Number of Perfect365 app users decreased because of confusion.
Incorporation and marketing didn’t support a reasonable inference that the This didn’t show a sufficient connectionīetween the infringement and the lost business, since the timing of defendants’ Ultimately elected to use the YouCam Makeup app. Implement looks sponsored by said company in our Perfect365 app,” but the company Moreover, ArcSoft “commenced in-depthĭiscussions with a major cosmetics company to enter into a partnership to Users of its app in 2015 had materially decreased by about 1/3 compared toĢ014, while defendants engaged in increasingly aggressive promotional efforts. The declaration stated that the number of Given the apparent concession that the tradeĭress described in the complaint wasn’t the trade dress ArcSoft wanted toĪssert, this claim was also dismissed with leave to amend.Īn additional declaration from ArcSoft’s legal counsel was no more helpful. “shifting-sands approach” to defining the trade dress was insufficient. Trade dress sufficiently to give defendants adequate notice, Arcsoft’s at the bottom of screen in ArcSoft’sĭistinctive purple when selected, over a white rectangular band,” or evenįurther, to “how the shutter button icons look.” However, given the importance of defining License-or the unknown-the terms of the multiple transfers of the software.”Īs for trade dress infringement, ArcSoft likewise failed toĮxplicit functionality of many of the features claimed in its initialĭescription, ArcSoft retreated in its moving papers to claiming (1) “aĭistinctive purple color scheme,” (2) “a unique app icon for the Perfect365Īpp,” (3) the “Perfect365 Mark itself,” (4) “a circular shutter button at theīottom of the screen comprised of an inner white circle surrounded byĭistinctive circular bands in ArcSoft’s purple,” and (5) the “icons reflecting Possessor “is hardly in a position to prove either a negative-the absence of a Particularly within the knowledge of the opposing party.” And, without theīurden shift, the defendant would have to prove a negative a downstream The copyright owner is in a superior position to show the terms of anyĪ litigant ought not have the burden of proof with respect to facts The software”] was never sold, only licensed, the burden shifts back to theĬopyright owner to show such a license.
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That the defendant couldn’t acquire title because the software [read “copies of Title, through purchase or otherwise, to genuine copies of the copyrighted Pass summary judgment, “the party asserting a first sale defense must comeįorward with evidence sufficient for a jury to find lawful acquisition of (Which is too bad for anyone who doesn’t keep
Showing ownership through lawful acquisition? The answer: the party asserting the defense, to wit, the defendant. Software licensing agreements may actually create a sale.” But first: who bears the initial burden of On appeal, the court of appeals noted that “some purported
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Internet Archive employee, and that made them inappropriate for judicial They would have to be authenticated by an Which is all the Internet Archive can provide, does not establish theĬontinuous use for particular purposes that GE must show to establish priorityĬourt take judicial notice of Internet Archive printouts anyway. Separately, “a snapshot of a moment in time, The NYT website incorporate everything on by reference.
A website, particularly one like GE’s, is a dynamic library of Is not a simple document that can be incorporated by reference into theĬomplaint. Judicial notice of the historical content of the GE website based on print-outsįrom the Internet Archive, showing use at least by November 2005, before My Separately, GE argued that the court could take Referred to in the complaint, thus incorporated by reference. GE argued that its website was a document specifically
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