In an opinion Friday, Judge Subramanian denied toymaker Wham-O’s renewed motion for an ex parte temporary restraining order against a slate of anonymous online sellers marketing “Hula Hoop”-labeled products, holding for the second time that Wham-O hadn’t shown a likelihood of success on its trademark claims given evidence in its own record suggesting the mark is generic.

In May, Judge Subramanian refused to grant the first requested TRO because Whamo-O failed to submit “the type of evidence that’s typically used to show whether a mark is generic, like dictionary usage, trade person testimony, or customer surveys.” And, he noted, some dictionaries indicate that “hula hoop” simply describes “the thing itself”—“a large plastic ring that you spin around your waist by moving your hips.” In other words, the mark may be generic.

Wham-O tried a different tack on its renewed motion: since HULA-HOOP is federally registered, it argued, the burden to prove genericness belongs to an accused infringer, not to Wham-O—and no accused infringer could carry the burden because the application was being brought ex parte. Judge Subramanian rejected the move, explaining that Wham-O’s own burden to justify emergency relief requires it to grapple with defenses the missing defendants would otherwise raise themselves:

Continue Reading Judge Subramanian: “Hula Hoop” May Be A Generic Descriptor Of The “Thing Itself,” Not Protectible As A Trademark

In an opinion today, Magistrate Judge Stein concluded that a party’s obligation to produce documents held by an attorney or other agent can require threat of termination as leverage to get an uncooperative agent to hand them over.

The discovery ruling arises out of Justin Sun’s suit against David Geffen over the sale of an Alberto Giacometti sculpture, Le Nez, which Sun claims was stolen and sold without his authorization by a nonparty, Sydney Xiong, whose current whereabouts are unknown. Central to Sun’s theory is a police report filed on his behalf in China—which Geffen contends is fabricated—by one Jeffrey Li, a “legal consultant” affiliated with the Shanghai Xi Zheng law firm. Geffen moved to compel production of Li’s own files relating to the report. Sun resisted, arguing Li was a nonparty in China over whom Sun had no real power: his counsel represented that “we have asked Li to produce materials” but “he declined,” and that all Sun could do was “ask.”

Judge Stein rejected that as a matter of law, holding that “control” imposes an affirmative obligation to use whatever practical influence the party actually has to obtain the documents:

Continue Reading Magistrate Judge Stein: Requirement To Produce Documents Under A Party’s “Control” Can Mean Threatening to Fire Your Own Lawyer

On Tuesday, Judge Carter granted summary judgment to defendants Granite State Insurance Company and Berkshire Hathaway Specialty Insurance Company against plaintiff KM Tactical, LLC in an insurance coverage suit. KM Tactical had sued defendants for coverage or indemnification against government lawsuits alleging that KM Tactical marketed and sold unfinished firearm frames and receivers used to assemble untraceable “ghost guns.” In these lawsuits, the State alleged that KM Tactical failed to impose controls on these sales and promoted its products in a way designed to attract customers seeking to evade firearms laws. KM Tactical allegedly knew, intended, or was willfully blind to the likelihood that the components would be converted into functioning unserialized guns. KM Tactical’s insurers, Granite State and BHSI, denied coverage.

Continue Reading Judge Carter: Ghost-Gun Retailer Not Entitled to Coverage of Lawsuits Brought by NY State Due to Foreseeable Harm

On Wednesday, Judge Cronan dismissed with prejudice X Corp.’s complaint against Letitia James, in her official capacity as Attorney General of New York, for failure to state a claim. X Corp. alleged that the Content Category Report Provisions of New York’s Stop Hiding Hate Act, which require X to publicly disclose its content-moderation policies, violate X’s First Amendment rights.

Continue Reading Judge Cronan: First Amendment “Poses No Obstacle” to New York Requiring Disclosure of X’s Content-Moderation Policies

On Friday, Judge Buchwald dismissed a proposed class action against online staffing agency Fiverr, an online platform connecting freelance service providers to customers. Three individuals alleged that Fiverr’s presentation of service fees is a deceptive practice under New York and California law. The plaintiffs claimed to have searched for and selected the services of a specific freelancer based on the pricing shown on the freelancer’s Fiverr page, only to be surprised by the addition of Fiverr’s service fee on the final checkout page.

The plaintiffs characterized Fiverr’s pricing as “drip pricing”, which they defined as “displaying one price for a good or service before adding one or more mandatory fees shortly before the consumer completes the transaction.” In recent years, the Federal Trade Commission has cracked down on “drip pricing”, also called “bait and switch pricing”, in the event ticket and rental housing markets.

Continue Reading Judge Buchwald: Online Staffing Agency’s “Drip Pricing” Model of Adding Service Fees at Check Out Is Not Deceptive

In an opinion yesterday, Judge Ramos dismissed a suit brought by a well-known dressage coach, Michael Barisone, against the United States Equestrian Federation based on the events that led Barisone to shoot a former student, Lauren Kanarek, and that were featured in a Netflix documentary earlier this year.

Barisone was a leading figure in the dressage community, and allowed Kanarek, a fellow USEF member and his trainee, to live temporarily on his New Jersey farm.  He alleges that Kanarek refused to leave and became increasingly “unstable.” Matters escalated to the point that Barisone confronted, and then shot, Kanarek twice in the chest in 2019.  She survived, and he was charged with attempted murder but ultimately found not guilty by reason of insanity.

Barisone’s suit against USEF alleged that the group violated its own “Safe Sport” policy by not investigating and addressing multiple complaints about Kanarek’s allegedly erratic behavior.  Even though Judge Ramos found that Barisone had plausibly alleged facts that USEF breached its own policy, he found that the causal chain connecting that breach to Barisone’s alleged harm — his downfall from the shooting — was too speculative:

Continue Reading Judge Ramos: Speculative Causal Chain Dooms Suit Seeking To Hold Equestrian Governing Body Responsible For Shooting

In an opinion Wednesday, Judge Schofield ruled that there was New York jurisdiction over a declaratory judgment action that a New York retailer, Rag & Bone, brought in response to trademark threats from a California volleyball company, Miramar Brands Group, Inc., finding that MBG’s campaign against Rag & Bone’s “Miramar” clothing line was sufficiently directed towards New York for case to proceed here.

The case focuses on Rag & Bone’s “Miramar” comfort-wear line, which it has sold for at least thirteen years. MBG, a California brand-management and licensing company, owns the registered MIRAMAR trademark for volleyball and volleyball-related beachwear. Last August, MBG’s counsel sent Rag & Bone a cease-and-desist letter into New York claiming exclusive rights and demanding Rag & Bone pull the collection. What followed was months of increasingly aggressive back-and-forth, including dueling letters between the parties’ respective New York counsel and an offer from MBG to license Rag & Bone the MIRAMAR name for ten years in exchange for a $10 million up-front fee plus escalating royalties. When Rag & Bone didn’t accept, MGS sent a wave of takedown notices to Amazon, Meta, Klaviyo, Nordstrom, and Saks demanding they stop carrying or advertising the Miramar collection.

Continue Reading Judge Schofield: A Cease-and-Desist Letter Plus a $10 Million Licensing Pitch Is Enough to Haul a California Volleyball Brand Into New York Court

On Friday, Judge Carter granted defendant Zealthy Inc.’s motion to dismiss claims brought by Novo Nordisk under the Lanham Act and New York General Business Law. Novo Nordisk alleged that Zealthy, which markets compounded GLP-1 medications, falsely represented to consumers that those products were equivalent to Novo Nordisk’s FDA-approved medications like Ozempic and Wegovy. Compounded medications (mixed by a doctor or pharmacist for an individual patient) are not FDA-approved, even if legal to prescribe.

Novo Nordisk pointed to a cluster of statements on Zealthy’s website: that “GLP-1 medications, with active ingredient semaglutide, are FDA-approved for type 2 diabetes”; that a clinician “might prescribe FDA-approved medications like Wegovy or its active ingredient, semaglutide”; that Zealthy offers “FDA-approved weight loss medications, including semaglutide”; and similar language elsewhere describing “FDA-approved medications such as semaglutide.” Novo Nordisk argued that these statements falsely indicate that Zealthy’s compounded products are FDA-approved.

Continue Reading Judge Carter Dismisses Novo Nordisk’s False Advertising Claims, Finding Statements About Compounded GLP-1s Were Susceptible To An Accurate Reading

In an opinion Monday, Judge Cronan dismissed a challenge brought by a coalition of interfaith advocacy groups to the composition of President Trump’s Religious Liberty Commission (the “RLC”), rejecting arguments that the fourteen-member body—which includes Evangelical, Catholic, and Orthodox Jewish members but no Muslim, Sikh, Hindu, or Buddhist voices—violates the Federal Advisory Committee Act’s (“FACA”) requirement that advisory committees be “fairly balanced.”

Plaintiffs argued that the RLC’s membership reflects a “Judeo-Christian framework” that excludes their perspectives, and sought to enjoin the RLC from publishing its forthcoming report on the state of religious liberty in America. Judge Cronan found that the organizational plaintiffs had standing to sue, based on the risk that an unrepresentative RLC would produce policy recommendations that undercut their advocacy work. But he rejected the underlying claim on the merits, applying what he described as the “highly deferential” review courts have historically given to FACA’s balance requirement. In doing so, he “reject[ed] the premise that there is a single ‘Judeo-Christian’ viewpoint”:

Continue Reading Judge Cronan: Trump’s Religious Liberty Commission Need Not Have “Perfect” Balance

In an opinion Monday, Judge Rochon denied a motion to dismiss a trademark suit brought by Danone, which makes STōK cold brew coffee against Chobani, which makes a “La Colombe”-branded competing product, over the phrase “BRIGHT & MELLOW” used on both packages as depicted below:

Danone has sold its STōK Cold Brew coffee under the “BRIGHT & MELLOW” label since January 2021, and alleges the phrase functions as both a flavor descriptor and an unregistered trademark. According to the complaint, La Colombe’s cold brew previously used the phrase “Bright & Flavorful” on a blue-and-yellow bottle—until Chobani acquired La Colombe in December 2023 and, Danone says, revised the packaging to more closely resemble STōK’s, including by swapping in “Bright & Mellow.”

Continue Reading Judge Rochon Allows Trademark Case To Proceed Over Competing “Bright and Mellow” Cold Brews