In an opinion Wednesday, Judge Rakoff allowed the handbag maker Hermés to proceed with a trademark suit against the individual responsible for a series of non-fungible tokens (“NFTs”) associated with digital images of “faux-fur-covered versions” of Hermés’s “Birkin” handbag. An example of a “MetaBirkin” image is below:


Continue Reading Judge Rakoff: Hermés Can Enforce Its “Birkin” Trademark Against Maker of “MetaBirkin” NFTs

In an opinion Thursday, Judge Swain granted judgement on the pleadings to the makers of the musical Vape, declaring that under the “fair use” doctrine, Vape does not infringe on the copyright in the classic theatrical work Grease.

Vape holds itself out as a parody of Grease. The copyright holders argued that rather than commenting on Grease itself, Vape merely ripped off elements of Grease in order to critique “society writ large.” Judge Swain disagreed:

Continue Reading Judge Swain: Musical Parodying the Misogyny of Grease is “Fair Use”

In an order yesterday, in a case involving two people who were formerly in a relationship and who now accuse one another of battery (among many other things), Judge Buchwald resolved various discovery disputes with a warning against “irrelevant invective”:

As the Court’s rulings demonstrate, these motions would have been unnecessary if counsel had conducted themselves in a more professional manner. The inclusion of any kernel of a meritorious argument in the briefing was in danger of being obscured by the amount of irrelevant invective. Indeed, the constant bombardment of the Court with such irrelevant invective makes defendant’s frequent refrain about the imposition on counsel’s time and his client’s resources ring hollow. Counsel are reminded once again, as the Court did early on, about the need to maintain objectivity and a professional distance from their clients.


Continue Reading Judge Buchwald Warns Counsel Against “Irrelevant Invective” and Fruitless Motion Practice

In an opinion yesterday, Judge Hellerstein granted summary judgment to the Boy Scouts, and against the Girl Scouts, in a case arising from the Boy Scouts’ decision to use gender-neutral terms like “scout,” to account for its new policy of allowing girls to participate. The Girl Scouts alleged, in essence, that the Boy Scouts’ use of gender-neutral terms would create public confusion about the two organizations (see our prior coverage here).

Judge Hellerstein found that the Girl Scouts did not have a protectable trademark right to “scouting” because the public associates that term with either both organizations, or with the generic concept of “scouting”:
Continue Reading Judge Hellerstein Dismisses Girls Scouts’ Trademark Case Against Boy Scouts Over Gender-Neutral Term “Scouting”

In an opinion last week, the Second Circuit affirmed Judge Cote’s decision (covered here) finding that the force majeure clause in a contract relating to an art auction was triggered by the COVID-19 pandemic.

Judge Cote had found that COVID-19 qualifies as a “natural disaster” within the clause, and the appellant argued that there was at least fact question as to whether the pandemic was truly a natural disaster, insofar as it may have been the result of a leak from a Chinese lab of man-made, genetically engineered viral material. The Second Circuit decided it need not resolve that issue, and seized on different language in the same clause about circumstances beyond the parties’ “reasonable control”:
Continue Reading Second Circuit: COVID-19 Pandemic Triggers Contractual Force Majeure Clause for Circumstances Beyond the Parties’ “Reasonable Control”

Last Thursday, Judge Caproni rejected a proposed joint scheduling order that provided for a party’s brief to be due on a Monday, citing her policy to set deadlines for the end of the week to avoid making associates work over the weekend.  Specifically, Judge Caproni said:

The Court recognizes that Defendants requested that their reply

In an opinion Friday, Judge Kaplan denied a motion by former President Donald Trump to amend his answer to add a counterclaim against the plaintiff, E. Jean Carroll, who accuses Trump of defamation based on his public statements alleging that she fabricated sexual assault allegations against him (see our prior coverage here).

The proposed counterclaim would have sought attorney fees and other relief under New York’s anti-SLAPP law. Judge Kaplan found that the counterclaim was futile, but went further to emphasize that the counterclaim was part of a larger pattern of stalling, including: evading service; pursuing  “frivolous motions practice”; seeking a stay in favor of another case, even though Trump previously argued the other case was unrelated; and, finally, attempting to have the Attorney General intervene.

Judge Kaplan found these tactics to be improper:
Continue Reading Judge Kaplan Harshly Criticizes Donald Trump’s Delay Tactics in Defamation Case, Refuses Proposed Counterclaim Amendment

In the long-running defamation case brought by Sarah Palin against the New York Times (see our prior coverage here), Judge Rakoff issued an opinion yesterday explaining his ruling from the bench granting judgment as a matter of law to the Times. The ruling was announced orally to counsel at the close of trial, before the jury returned its verdict. The jury subsequently ruled in the Times’ favor, as well.

The central issue in the case was whether the Times acted with “actual malice” when it issued an editorial erroneously suggesting that the actions of Palin’s political action committee – using “stylized cross hairs” over the districts of several members of Congress in online materials – was responsible for the “political incitement” of Jared Lee Loughner, who killed six people and wounded many others, including Representative Gabby Giffords, in a 2011 mass shooting.

Judge Rakoff found that the author, James Bennet, did not act with actual malice because, among other things, he was so quick to direct that the matter be corrected the morning after the editorial was published:
Continue Reading Judge Rakoff: It Would “Chill Protected Speech” To Hold NY Times Liable for Careless, Quickly-Corrected Editorial About Sarah Palin