|Stanford Law School|
In 2003, the Stanford School of Law offered to make Tabberone a class project and asked us it we could have any legal pleading what would we like.
We asked for a motion for summary judgment. About a year later they delivered.
This pleading is posted as we received it. It's in a sort of fill-in-the-blanks format and/or replace-our-name-with-yours format. Click here for the outline in text format.
We put this out here for anyone who wants to use it as a guide. There are two updates to this we would suggest. Under jurisdiction, you can now use the case Dudnikov v. Chalk & Vermilion Fine Arts Inc.,, 10th Cir., No. 06-1458, 1/28/08, if the other party used a Notice Of Claimed Infringement ("NOCI") against you.
Also, there is another case about profiting from the work of others, New Kids On The Block
Judge Waterman of the Second Circuit Court of Appeals, said that under the Lanham Act "one can capitalize on a market or fad created by another provided that it is not accomplished by confusing the public into mistakenly purchasing the product in the belief that the product is the product of the competitor." American Footwear Corp. v. General Footwear Co. Ltd., 609 F.2d 655, 662 (2d Cir. 1979), cert. denied, 445 U.S. 951, 100 S. Ct. 1601, 63 L. Ed. 2d 787 (1980) (finding that the manufacturer of a "Bionic Boot" did not infringe the trademark of the producers of the "Bionic Woman" television program).
And, there's always Precious Moments vs La Infantil. The First Circuit Court specifically rejected the copyright claim where La Infantil was being accused with unauthorized use of copyrighted fabric, saying that "bedding items manufactured with lawfully acquired, authentic fabric with copyrighted design were not infringing derivative works."
The First Circuit Court also said "The copyright owner's right to distribute the work is limited by the "First Sale" doctrine, which permits the owner of a legally acquired lawfully made copy of a work to sell that particular copy without the consent of the copyright holder".
In another often quoted case, American Footwear Corp. v. General Footwear Co. Ltd., 609 F.2d 655, C.A.N.Y., 1979, the Second District Court of Appeals, stated:
"It was entirely permissible for American (Footwear) to attempt to capitalize on public receptiveness to a concept, idea or word which Universal has been responsible for creating or popularizing. The only limitation is that the party who takes advantage of the atmosphere the other party has helped create may not achieve a competitive boost by confusing the public into mistakenly purchasing his articles believing it to be that of his competitor. (citation omitted). American has not been guilty of that fault. It has at all times made clear that the Bionic boot it was attempting to promote was an American product. No effort of any kind was made to associate the boot with Universal's TV shows or with any of the characters in those shows. (Joint Appendix at 17-18.)"