U.S. v. Arizona
Arizona judge enjoins enforcement of a new immigration law's requirement that police determine the immigration status of
every person who is arrested.
McGuire v. United Airlines
Michigan woman says a United Express flight crew locked her in a plane for nearly four hours after it landed because they failed to ensure that all passengers had disembarked.
R.H. v. Schenectady Sch. Dist.
Middle school student says he was suspended for wearing rosary beads because the rosary "is considered a gang-related symbol" and cannot be worn in school.
Fields v. Smith
Judge strikes down a law that bars transgender prison inmates from receiving hormone therapy at taxpayers' expense, finding it amounts to cruel and unusual punishment.
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• Iowa judge says a sheriff denied the applications of a father and son for concealed weapons permits in retaliation for their political activism. "This is a great reminder that the First Amendment protects the sole individual who may be a gadfly, kook, weirdo, nut job, whacko, and spook, with the same force of protection as folks with more majoritarian and popular views." Dorr v. Weber

• 5th Circuit rules that a school district violated the religious freedom of a Native American boy by requiring him to wear his long hair in a bun on top of his head or in a braid tucked into his shirt. The boy "has a sincere religious belief in wearing his hair uncut and in plain view."
A.A. v. Needville Ind. Sch. Dist.

• 11th Circuit denies a challenge to an ordinance restricting handouts of food to the homeless in Orlando parks. "[W]e are unpersuaded that the conduct of simply feeding people ... is expressive for First Amendment purposes."
First Vagabonds Church v. City of Orlando

• Boston judge slashes a jury award in an illegal music downloading case from $675,000 to $67,500. "The award in this case ... lacks any rational foundation and smacks of arbitrariness." Sony v. Tenenbaum

• Iowa Supreme Court suspends a voyeuristic attorney indefinitely for peeping on women through windows. "[W]e cannot overlook the serious, egregious, and persistent nature of [Mark] Templeton’s misconduct and the effect it had on his victims."
Disciplinary Board v. Templeton

• Pennsylvania judge strikes down the state's blasphemy law in a case brought by a film producer who wanted to name his company "I Choose Hell Productions." "'Choosing hell' may be an irreverent choice for a corporate name, but under the Constitution, this fact alone cannot be the basis for its suppression from the public debate." Kalman v. Cortes

• Cancer patient sues Wal-Mart for firing him after discovering that he uses medical marijuana for pain relief. "[N]o corporation doing business in Michigan should be permitted to flout state laws protecting patients who use medical marihuana in accordance with state law." Casias v. Wal-Mart Stores

• 11th Circuit rules that the operator of an Internet porn dorm was engaged in illegally operating a business in a residential zone. "Business objectives are the sole reason individuals are paid to live and engage in sexual activities at the 27th Street residence."
Flava Works v. City of Miami




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Is There Room on Web for Two "Funky" Chicks? Print

"Funky Brown Chick"

In a colorful legal battle between “personal” bloggers, “Funky Brown Chick” will have to show more than surface similarities between her eponymous website and “funkyblackchick.com” to prevail on her trademark infringement claims.

Both “chicks” write about their lives on their blogs, with “Funky Brown” (aka Twanna A. Hines) describing herself as “a New York-based writer, sociologist, blogger and sexpot.” The rather more demure “Funky Black” (aka Yesha Callahan) says she is “a 30-something blogger based out of the DC Metro area.”

Their lives and blogging styles appear quite different -– the more high-profile Hines mixes with celebrities and dispenses sex and dating advice. But Hines filed a suit in Maryland last week, accusing Callahan of “using the confusingly similar mark Funky Black Chick in connection with services strikingly similar to those provided by Plaintiff under Funky Brown Chick.”

The suit seeks injunctive relief and unspecified damages for false designation of origin and unfair competition under the federal Lanham Act and trademark infringement under Maryland law.

“Defendant's unauthorized use of the Funky Black Chick designation in connection with Defendant's service is likely to cause and has actually caused consumers to mistakenly believe that Defendant has an affiliation with Plaintiff, or that Defendant's is sponsored or approved by Plaintiff, or that Defendant is otherwise associated with Plaintiff,” the complaint says.

In applying the “likelihood of confusion” test, courts look, among other things, at the similarity of the two marks, the similarity of the goods and/or services the marks identify, and the defendant's intent. The precedent of an Internet domain name case involving the late Rev. Jerry Falwell suggests Hines will have a hard time meeting that test.

Christopher Lamporello did not infringe on Falwell's trademark rights by operating the "fallwell.com" gripe site, the 4th U.S. Circuit Court of Appeals ruled, in part because “although Lamparello and Reverend Falwell employ similar marks online, Lamparello’s website looks nothing like Reverend Falwell’s; indeed, Lamparello has made no attempt to imitate Reverend Falwell’s website.”

“Most importantly, Reverend Falwell and Lamparello do not offer similar goods or services,” the court stressed in Lamporello v. Falwell, 420 F.3d 309 (2005).

“Funky Black” provides services “strikingly similar” to “Funky Brown's” only in the superficial sense that they are both African-American women blogging about their lives. In recent postings, Hines opined on the weighty subject of “Men Who Like BBW Sex” while Callahan named Sarah Palin her “Dumbass of the Week.”

Callahan's site, moreover, displays her domain name as [Fung'ke] [Blak] [Chik] and also includes the disclaimer, “This blog and writer is not associated with any other 'funky (insert random color or ethnicity name) chick' (or similar) domains, blogs or screen names.”

As a Wisconsin judge recently ruled in a similar case,

While the effectiveness of a disclaimer may generally be a question of fact, “a disclaimer expressly declaring that the seller is ‘not affiliated’ with the owner of the trademark or is ‘not an authorized distributor’ of the trademark owner’s products has been held to be an effective means of preventing confusion in the minds of consumers as to affiliation with the owner of the trademark.” Standard Process, Inc. v. Banks.

UPDATE

  • U.S. District Judge Marvin J. Garbis denied Hines' motion for a preliminary injunction in an Oct. 13, 2009 order, finding that "on the current record, it appears that both Plaintiff and Callahan would have reasonable chances to prevail on the merits."

  • The case was dismissed March 12, 2010 after the parties reached a settlement.


  • This story linked by:


    By Matthew Heller
    11/15/08


     
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